R v Smith [2000] NSWCCA 468 | Case summary

R v Smith [2000] NSWCCA 468 | Case summary | Zoe

Facts 3 The Crown case was based upon the evidence of the complainant DR. She said that, on the evening of 2 May 1998, she went with some friends to the Tradesman's Club at Dharruk, before moving on to "Tillys" nightclub at Uncle Bucks Tavern, Mt Druitt. Whilst at the nightclub she had nine to ten glasses of bourbon and coke. These were her only alcoholic drinks for the night. 4 At about midnight the complainant spoke to the appellant for a short time near the bar. She had seen and spoken to him on prior occasions at the club, and knew him to be a friend of her ex-boyfriend. She said that he was wearing a white, yellow and blue striped T-shirt, brown baggy jeans and brown shoes. 5 At about 3.30am, the complainant left the club by herself. She walked towards the Quix service station to get a taxi. When she saw the appellant standing by himself, on the corner of Mount Street, she walked over to speak to him. She said that she liked him, and he asked her if she wanted to go for a walk. She agreed, in cross examination, that the possibility of having sexual intercourse with him was in her mind at this stage. 6 They walked past a recreation centre to a toilet block near some soccer fields. There was no one else around. The lighting in the area the complainant described as good (an observation not challenged in cross examination either of her or of the police who made a search of the area.) They began to kiss but then unexpectedly, the appellant punched her to the left side of the face, hard, with a closed fist. She fell to the ground. When she tried to get up he punched her again, this time she thought, to the right side of her face. She landed on her back. She tried to get up but was struck for a third time, again landing on her back. On this occasion the appellant placed his finger inside her vagina and pushed "really hard". He kept it there for some five minutes or so. 7 She cannot remember him saying anything to her while this was happening. Nor could she remember when or how her pants or underpants were removed. She thought that she may have lost consciousness for a time. Although she tried to sit up and push him away he kept hitting her. Eventually he got up and ran away in the direction of the nightclub. The whole incident she thought lasted for about thirty minutes. There was no attempt, she said, by the man who assaulted her, to place his penis in her vagina. 8 The complainant said that she found her pants and underpants on the ground but could not put them back on because she was shaking and in shock. She ran back towards the Quix service station wearing just a pink top. On the way back, a passing car stopped. She was asked by the occupants whether she was alright, and whether the police should be called. She said "yes" in reply to the latter question. By the time she reached the service station, a police vehicle had arrived. She reported the assault, and was taken back to the toilet block, where her pants and underpants were found. 9 She was then taken to the Westmead Hospital and examined by Dr. Robert Edwards. She was found to be very distraught, and to have a bruise, a haematoma and graze on her right forearm, a graze over the bridge of her nose, a graze and haematoma on her forehead, a tender swelling under her left eye, swelling to her lips, a small cut to the inside of her lip, and a bruise, a graze and a superficial tear to the labia. She was also thought to have a fractured nose. The genital injuries, Dr Edwards said, were consistent with "some significant degree of force" having been used. She also sustained a cut to her foot, while running back to the service station, which required suturing. She gave Dr. Edwards a history of having been assaulted by an acquaintance known to her as "Rob". She did not make any mention to him of losing consciousness. 10 On 22 July 1998, the complainant was shown a video containing a number of pictures of various men not including the appellant. She did not make any identification. On 21 August 1998, she was shown a second video containing a different set of photographs, including one of the appellant that had been taken of him by police on 8th August. She made a positive identification of him. He was arrested and charged on the following day. Neither the videos or any stills from them were tendered in evidence. 11 The version that the complainant gave to the police when they spoke to her, in their vehicle, at the service station was recorded by them. It did not entirely accord with her evidence as to the manner in which the assault commenced. 12 Constable Whitely gave evidence to the effect that, after leaving the night club, the complainant said that she had walked over to the toilet block. She had gone to the toilet. Then the man had come up from behind her. He threw her to the ground. Her pants were removed and he had placed his finger in her vagina. She said that her attacker had been wearing a yellow and white striped shirt. In her notebook, the Constable also recorded: "Victim stated that she knew the attacker as Rob only through her ex-boyfriend. He had previously tried to do the same thing to her only a matter of weeks ago." 13 The complainant denied ever making this last observation to police. Constable Whitely, it may be noted, recalled that when she spoke to her, the complainant was "crying and ...shaking… She was a little bit hard to understand". She later said that: "She was really upset, she was crying and she was quite hysterical …"

He also recalled the complainant as being "extremely upset, crying and shaking". He similarly found it very difficult to understand her. He made no mention, in chief or cross examination, of her complaining of the appellant having tried to assault her previously. 15 Each officer gave evidence of finding the complainant's pants and underpants on the ground behind the toilet block. They were wet and muddy. It had been raining that night and into the early hours of the morning, they said. 16 Adam Micaleff gave evidence of having seen the appellant and the complainant talking to each other, at the nightclub, on occasions before 2 May 1998. He spoke to the appellant there that night, and was informed by him that the complainant had asked him to dance with her. He left the club before the appellant, between 2.30am and 3.00am. At some time during the Sunday he received a telephone call from the appellant. When he challenged him with having raped the complainant, the appellant said: "I swear on me mother, on me daughter's dying oath, no I haven't, I didn't touch her". 17 Corissa Cambo gave evidence of walking towards the service station from the club, with two friends identified as Tanya and Sharon, at about 3am. She observed a girl standing on her own on the driveway of the service station. She asked if she was alright, and received the reply that she was waiting for some friends. About twenty to thirty minutes later, while waiting for a taxi, she noticed the same girl standing behind some bins at the service station, crying. She walked over and saw that she was naked from the waist down. She asked what had happened and was informed "they punched me in the face and they raped me". When she asked who had done this, the girl kept saying the name "Rob". She was crying and shaking. One of her friends went to call the police and one gave the girl a jacket. 18 Two companions of the appellant, Angelo Tseros and Glen Glover, gave evidence of leaving Tilly's night club with him, at closing time. They said that they saw a young woman standing at the front of the service station. She was swaying slightly. She walked up to them, looked at the appellant, and asked his companions how much it would cost (to buy) their friend for the night? 19 At about this time they heard the sound of a window smashing and saw some bouncers from Uncle Bucks chasing a young male. They joined in the pursuit of this man, leaving the appellant behind with the girl. They ran down to the railway station before breaking off their chase. They began to return to the club but became diverted when they met up with a female, who indicated an interest in taking Mr. Glover home for the night. They turned around and walked back to the station with her. About five to ten minutes after arriving there, they were joined by the appellant. This occurred, they said, about twenty to thirty minutes after they had last seen him back at the service station. When they saw the appellant he did not seem to have any mud on his clothes or hands. 20 Both of these witnesses agreed that they had been drinking at the club. Mr. Tseros estimated that he had consumed about eleven or twelve vodkas mixed with orange juice during the six hours or so that he was at "Tilly's". Mr. Glover thought that he had consumed "maybe" five rum and cokes over the night. He also said that he had seen the complainant and the appellant speaking together at the club on prior occasions. 21 Melissa Lenton, the appellant's cousin, who admitted to having drunk seven to nine glasses of bourbon and four to five glasses of beer this night, gave evidence that was somewhat inconsistent. She said, initially, that after leaving the club, she saw the appellant speaking to the complainant on the corner, just outside the club. Angelo Tseros and Glen Glover were nearby. According to her, she heard the complainant say something to the effect of, "How much would it cost me to be with you for the night?" She did not hear any response. She joined her friends at the service station, leaving the appellant and the complainant talking together. 22 Later in the morning she saw the appellant again talking to a fellow by the name of Darren. Fifteen to twenty minutes later, she said, Mr. Glover and Mr. Tseros arrived back at the service station. Thirty to forty-five minutes after having initially arrived at the service station, Ms Lenton said that her attention was drawn to the complainant, who was apparently standing beside the bins, absent her pants. At this time she said that the appellant was over talking to Darren in his car. 23 While still in chief, Ms Lenton gave some additional evidence after having her memory refreshed by reading her statement. She then said that she had seen the appellant and the complainant, earlier in the night, talking at the bar and later talking in the laneway between the entrance of Uncle Bucks and Tilly's. She said that it was at this time, in the laneway, that she heard the complainant ask, "Can I have you?" to which the appellant replied, "No". The complainant then said, according to her, "How much will it cost me to have you for the night?" The appellant replied, "You can't buy me." 24 She also said, at this point of her evidence, that when she saw the appellant and the complainant standing on the corner, as she walked to the service station after leaving the club at closing time, she did not hear what they were saying. Twenty minutes later she saw the appellant at the service station. He stayed there she said for about fifteen minutes before walking off towards the railway station. It was within thirty minutes of his departure that she saw the complainant standing near the bins. In cross examination she agreed that when she saw the appellant at this time, he did not have any mud on his clothes or hands. 25 The complainant, it may be observed, denied making any remarks that might have suggested an interest in buying the appellant, or asking how much it might cost to have him for the night. 26 Police interviewed the appellant, by way or ERISP, on 8 August 1998. He denied having assaulted the complainant. He said that she had approached him on the night of 2 May, and asked if she could take him home. He had refused. When she asked how much it would cost to have him for the night, he said to her, "You can't buy me, I have a daughter and girlfriend that I love and want to go home to". He said that she tried to force a kiss on him and to stop him going away from her. This, he said, occurred on the corner of Mount Street and the restaurant. When the brick was thrown through the club window, he used that as a distraction to walk away from the complainant, who had tried to pull him back. He then went to the railway station and caught a train with his friends. 27 There was no identification parade. The appellant indicated to police that he felt "it would be a waste of time", because he knew the girl and she knew him. Following the interview, photographs were taken of him which he was informed would be used for identification purposes. He did not oppose that occurring. 28 The appellant gave sworn evidence to similar effect of the account given in the ERISP. In the course of doing so, he acknowledged having met the complainant on a few prior occasions at Tilly's night club. He also acknowledged that, on this night, he met the complainant at the corner and spent about ten minutes with her there. After refusing her offer and making good his departure of her, he walked back towards the night club. After looking back and seeing that she had gone, he then walked over to the service station where he spoke to his cousin Melissa and to two other people, identified as Hayley and Darren. The interval between encountering the complainant in the street and joining these acquaintances, he fixed at between ten and twenty minutes. He later walked off to the railway station where he caught up with Glen Glover and Angelo Tseros. 29 In cross examination the appellant agreed that he had seen the complainant on about three prior occasions at Tilly's, that he had danced with her on such an occasion, and that he had spoken to her in the bar area on the night of second/third May. 30 He also agreed that he had consumed about six bourbons and cokes that night. He denied having spoken to the complainant during the evening in the laneway, as mentioned by Ms Lenton. 31 The only other witness in the defence case was Nathan Lenton, another cousin of the appellant, who said that around December 1998, he had a conversation with the complainant. After being introduced as the appellant's cousin, she said, according to him, that "at the end of the Court case, she could get fifty grand out of it". The complainant denied this conversation when it was put to her in cross examination. There was no cross examination of the appellant in relation to it, nor any evidence of a claim for compensation having been made. 32 There was no issue that the complainant had been sexually assaulted this night. The defence case was that this occurred after the appellant had managed to get away from her at the time the brick was thrown through the window, and that some person other than him had been responsible. In essence, it was the defence case that the complainant's version of events, in which she suggested that the appellant was her attacker, could not be accepted beyond reasonable doubt.

k) the possibility that, after the appellant walked away from the complainant, when the incident relating to the broken window and the pursuit of the man responsible for it occurred, some person other than him attacked the complainant. 38 These were all matters properly to be taken into account by the jury when considering the credibility and reliability of the complainant, which had a considerable advantage over us in hearing and seeing each of the witnesses who were called. None of them in isolation, or in combination, leads me to the view that the jury ought to have entertained a reasonable doubt. Nor, for the reasons later mentioned, do I have a concern that the jury were insufficiently directed as to the relevant issues, or as to the way in which they should approach the evidence. 39 There was no issue other than that the complainant was severely beaten, and the subject of a sexual assault that involved the forceful penetration of her vagina. The appellant was already known to the complainant and he was seen by several persons to be in her company at the relevant time. He admitted to being in her company for about ten minutes at a time proximate to the assault. In the circumstances described by those witnesses who knew him and who left him with her, while they went about their business, he had the opportunity to do what she alleged. 40 Several of the matters said to amount to discrepancies (items (a), (b), (c), (f) and (i) above) were readily explicable by reference to the extremely distressed and shocked state in which the complainant was left after the attack, and to the difficulty which the police officers who first spoke to her, and Dr Edwards, subsequently had in obtaining a coherent account from her. 41 What was consistently provided, however, was the disclosure that the assailant was the man "Rob", who the complainant identified as the appellant. This was a matter relevant to the issue of her credibility. The complaint was instantaneous and it was consistent. Moreover, the reply "Rob," which was given in response to Miss Combo's inquiry as to the "they" who attacked her, is inconsistent with any suggestion made by the complainant to the effect that more than one offender was involved. 42 The jury were entitled to regard this part of Miss Combo's evidence either as a misunderstanding on her part, or as an imprecise statement by the complainant, attributable to her shocked state. 43 Although there is no doubt that the complainant had drunk a good deal of alcohol, there was no suggestion by any witness that she was incoherent before the attack or unable to appreciate to whom she was talking, or what was occurring to her. She accepted that she was "happy" but denied being well affected by liquor or being drunk. Neither of the uniformed police suggested that she was inebriated or was cross examined to that effect. Moreover, in his opening address, Counsel for the appellant put the matter no higher than that she had consumed "a moderate amount of alcohol". Nor was there any suggested that the blows to the head were such as to lead to any loss of memory after the event. This disposes of item (g) above. 44 There was no suggestion that the appellant fell to the ground, or was otherwise positioned in a way that would necessarily have led to him getting mud on his clothes or hands. At most, he was said to be kneeling between her legs. Whether that involved him placing his knees on the ground, whether the area on which he was kneeling was wet so as to attract mud to himself, and whether Messrs Glover and Tseros would have noticed any mud or wet patches on the brown jeans that the appellant was wearing, were no doubt matters properly to be considered by the jury, they were not matters that inevitably invited the conclusion contended for by the appellant. This disposes of item (e) above. 45 Items (d) and (h) are interrelated, and admittedly are somewhat curious. However, they were quintessentially matters for the jury which was entitled to find, for example, that the appellant was somewhat unimpressed by what may have seemed to him to have been promiscuous and unwelcome conduct on the complainant's part, and to have responded by humiliating or degrading her in the way described, which as I have observed fell short of the penile/vaginal intercourse which might otherwise have been expected. The case is not one in which the events described were so extraordinary, or so inconsistent with the expected range of human behaviour, as to lead to their rejection as fantastic, or even as inherently improbable. 46 Certainly there was no eyewitness to the actual attack. Equally there was no evidence as to the presence, in the general area of the attack, of any other possible candidate for it. In those circumstances, item (j) remained a matter for the jury, as did the possibility referred to in item (k). The latter is, however, answered by the circumstance that the complainant might reasonably have been expected to have seen exactly who did attack her. If that were the appellant, then it is difficult to see how there could have been an error in identification as he was already known to her, both according to her own evidence, as well as according to the evidence of several other witnesses, including the appellant himself. 47 The possibility that some other unobserved patron of the night club, who was intoxicated, and in an amorous mood, was responsible for the attack, was, no doubt, hypothetically open. However, in the circumstances described by the complainant as to how it was that she and the appellant came to be at the toilet block, and as to how their kissing developed into an assault, I am not persuaded that it remained open as a reasonable possibility. Certainly the jury, by the verdict, came to believe the complainant's version of events, which excluded any attacker other than the man to whom she began to talk after leaving the club, who undeniably was the appellant. 48 In the end, I am satisfied that this was a case where the jury was much better placed than this court to evaluate the reliability of the witnesses, and to come to the necessary conclusion as to whether the Crown had proved its case beyond reasonable doubt by reference, in particular, to the way in which the critical witnesses performed in the witness box. The observations of Brennan CJ and Kirby J in Jones earlier mentioned are apposite. Particularly is that so in a case where the jury were obviously at pains to discharge their task properly, as was indicated by their request to have the tapes of the evidence of the complainant, Ms Combo, and Ms Lenton, replayed. 49 This ground of appeal is, accordingly, not made good.

Ground 2 Competing versions 50 It was next submitted that his Honour erred in failing to direct the jury, adequately or at all, as to the way in which they should deal with the competing versions offered by the appellant and by the complainant. There was no complaint in relation to this aspect of the summing up raised at trial, and leave is accordingly required to argue it. 51 As was observed by Brennan J, with whom Deane J agreed, in their dissenting judgments on a special leave application in Liberato (1984) 159 CLR 507 at 515: "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue." 52 Although their Honours were in the minority in this decision, the relevant passage has been taken up elsewhere as requiring the relevant direction, where a case is left upon the express basis suggested - ie as a case of word against word, in which a jury is invited to consider which of the complainant (or prosecution witness) and the accused (or defence witness) they believe: Edwards NSWCCA 27 September 1995 at p8, and Beserick (1993) 30 NSWLR 510 at 528; and see also E (1995) 89 A Crim R 325 at 330 and Towner (1991) 56 A Crim R 221, at 228-229. 53 The inappropriateness of ever leaving a case upon that very blunt basis, without the necessary caution, is obvious, since it risks leaving the jury with the belief that their task involves one simply of choosing between the two witnesses, justifying a conviction if they come to prefer the evidence of the prosecution witness to that of the accused. The vice lies in the circumstance that such an approach may dilute the requirement of proof beyond reasonable doubt, and divert the jury from that fundamental principle of law. 54 Whether or not a case has been left in such blunt terms will depend upon a reading of the summing up as a whole: Short [2000] NSWCCA 452. In Liberato, as Brennan J noted, at 514, there had been a failure, in the summing up, to distinguish between "reasonable doubt and choosing between two contradictory stories". The matter was compounded by various other directions which Brennan and Deane JJ considered may have effectively reversed the onus of proof. 55 This ground of appeal drew essentially upon the following passage in the summing up: (p 11 on 8th June) "What you are required to do in finding the facts is not very different from what each of us commonly does individually, although perhaps subconsciously in our day to day lives we are commonly confronted with situations where different people give us different versions of something that has happened. Sometimes the situation is one where, for one reason or another, we have to choose between those different versions. In such everyday situations we probably make up our decisions without spelling out in our minds just how we are doing it. However, such are the conflicts in the evidence in this case and so important is your task that it is desirable that I should take a few minutes to analyse briefly how the process works, or should work." 56 This followed upon clear and detailed directions (at pages 6 to 7 of the summing up on 7th June) as to the fact that the onus of proof fell upon the Crown to prove its case beyond reasonable doubt , and as to the fact that there was "no onus of proof on the accused at all". In the course of giving that direction, which included a conventional direction as to the presumption of innocence, the jury were also instructed: "The accused is entitled to the benefit of any reasonable doubt in your minds. It is vitally important that you clearly understand that the accused must be acquitted if his guilt has not been proved to your satisfaction beyond reasonable doubt . You do not have to be satisfied that the accused is innocent before you should acquit him. If you are unable to decide where the truth lies, even though you feel that he may be guilty if you have a reasonable doubt about it you must find him not guilty."

The essence of those directions was repeated when his Honour continued the summing up on 8th June. 57 Immediately following the passage earlier mentioned his Honour gave careful directions concerning the way in which the reliability of witnesses was to be approached. This was followed by a Murray direction, (1987) 11 NSWLR 12, in the course of which all of the matters relevant for an assessment of the complainant's reliability were identified. When summarising the address of defence Counsel, his Honour repeated the various matters that had been identified as potentially damaging to the Crown case, as well as those capable of supporting the defence case, before again reminding the jury of the need "to scrutinise (the complainant's evidence with great caution" (summing up 8th June p29). 58 I am not persuaded that the question for the jury was framed in terms inviting them to choose between accepting the evidence of the complainant and that of the appellant, in the way that was said to be prohibited in Beserick and Edwards, that is in the absence of the additional directions mentioned in Liberato. 59 Hunt CJ at CL said in Edwards (at 8-9): "It is commonplace for the issue in cases such as the present to be described as one of word against word. Sometimes it is unavoidable. But it is essential that, when such a description is given, the judge ensures that the jury understands that it is not a question of making a choice between the evidence of the Crown's principal witness and that of the accused. The best approach, in addition to saying just that, is to tell the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt notwithstanding the (sworn) denial by the accused, and that they do not have to believe that the accused is telling the truth before he is entitled to be acquitted." 60 That was a case where the trial Judge, on more than one occasion, informed the jury that the "real issue" was whether they believed the complainant or the accused, an error that was compounded by a direction that as part of the choice, the jury had to decide beyond reasonable doubt whether they accepted or rejected the evidence of the accused. 61 The present case is very different. I am not persuaded that read in its full context, (including the Murray direction) the summing up risked watering down the burden that rested upon the Crown to prove its case beyond reasonable doubt. In that regard, it is important to note that the reference to choosing between different versions (para 54 above) was not related to the present case. Rather it was a general observation made in the course of some preliminary directions. At no stage was the issue for the jury expressed in the stark form evident in Edwards. 62 Nor was anything else said that risked watering down the requirement that the jury find the complainant's allegations true beyond reasonable doubt before they could return a verdict of guilty. Similarly to the decision of this court in Short (see par 73 - 75), I am satisfied that the correct question was kept in the forefront of the jury's mind. 63 This ground is not made good, and I would refuse leave under R4 of the Criminal Appeal Rules 1952.

Ground 3. Admission of photographic evidence 64 It was submitted that his Honour erred in admitting the evidence of the photographic identification, by the complainant, of the appellant, on 21 August. Again there was no objection by trial Counsel in relation to this evidence and R4 applies. 65 I have some difficulty in understanding the point sought to be made in relation to this ground of appeal, and in relation to the following ground, since the identification by the complainant of the appellant, as the person who she knew as Rob, was simply not in issue. On her account, there was a continuum of activity between their conversation on the corner, including her acceptance of his invitation to go for a walk, which took them to the toilet block where they kissed, immediately following which she was struck, and sexually assaulted. 66 The case was not pursued as one depending upon the identification of a man who was previously unknown to her, or of a man who suddenly came upon her and who she saw only briefly. She had given a contemporaneous account as to his first name, and as to his clothing. The photographic identification had a relevance only in confirming that the man, whom she had referred to as "Rob", was in fact the appellant. In that respect it had an obvious relevance. It could not have had any possible prejudicial effect since it was common ground, based upon the evidence of the independent witnesses, as well as that of the appellant, that the person to whom she had been speaking on the corner was indeed the appellant. 67 An argument advanced on appeal was that the identification exercise was tainted because it was conducted during the evidentiary phase, rather than during the investigative or detection phase of the case. Additionally, it was put that the procedure was tainted by the separate identification exercises that were undertaken, by the delay, and by what was said to have been the showing of only a limited number of photographs to the complainant. 68 There was no cross examination to provide a proper basis for any such complaint, nor as I have observed, was there any objection to the evidence. That this matter was regarded as little more than a formality, in view of the fact that the complainant and the appellant were known to one another, is established by the circumstance that neither the videos or stills from them were tendered, or shown to the jury. 69 So far as the timing of the identification procedure was concerned, reliance was placed upon various passages in Alexander (1981) 145 CLR 395, particularly in the dissenting judgment of Stephen J. That decision confirmed the desirability of identification being effected through an identification parade, as near in point of time as possible to the offence, ie whenever that is possible. It also dealt with the care needed for photographic identification, so as to avoid contamination through the effects of suggestion, displacement and the like, and so as to avoid conveying any impression to the jury that the accused was already known to police as a person who had committed similar offences, or was a person already in police custody. 70 The observations of Gibbs CJ (at 401) need to be understood in that context. His Honour there said: "… it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender. However, there is little support to be found in the authorities for the view that a conviction must necessarily be quashed if it is based on evidence that the accused was identified other than at an identification parade at a time when he had been charged or was definitely suspected, even though there was no valid reason why an identification parade could not have been arranged. The judgment of this Court in Davies and Cody v The King (1937) 57 CLR 170 suggests that the proper approach is to consider whether the conviction can safely be sustained on the whole of the evidence." 71 His Honour noted a number of cases in which convictions had been sustained where the identification had been made post arrest, and where it had been made through the use of photographs. His Honour continued (at 402-403): "The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason 'only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person': Reg v Russell [1977] 2 NZLR at 28."

Ground 4 - absence of warning as to the identification evidence. 76 It was next submitted that, as evidence of the 21 August identification had been received, then it was obligatory for his Honour to give directions to the jury relating to the need for caution generally, as well as in the circumstances of the particular case, by drawing their attention to any matters of significance that might have undermined the reliability of the evidence that was led: Clout NSWCCA 1 December 1995; Mark Anthony Clarke (1993) 71 A Crim R 58; and Kerrie Anne Clarke (1997) 97 A Crim R 414. 77 The matters of significance relating to the present case were said to concern the complainant's sobriety or lack of it, her state of consciousness, and the "external prevailing conditions of the time". 78 The nature of the direction which is now required, in relation to identification evidence, is dictated by sections 116 and 165 of the Evidence Act. S 116(1) provides, relevantly: "116 (1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case." 79 Section 165 requires a warning to be given in relation to identification evidence where requested by a party (S 165(2)), unless there are good reasons for not doing so (S 165(3)). 80 Section 116(1) is expressed in terms which this Court, in Kerrie Anne Clarke, suggested (obiter) were not qualified by the exemption provided by S 165 (3). To the extent that this is correct, it would involve a departure from the common law noted in Domican (1992) 173 CLR 555 and Heuston (1995) 81 A Crim R 387. 81 As I have observed, there was no real issue as to identification, the relevant evidence having been led, without objection, as follows: "CROWN PROSECUTOR: Q. Now [DR] do you recall going to the Mount Druitt police station some time in August of 1998? And being shown a video? A. yes. Q. And was it the case that the video had a number of pictures of various men? A. yeah. Q. Do you remember picking out a picture whilst that was being done? Whilst that was being shown to you? A. Yeah. Q. And did you tell the police which number you picked out? A. yeah. Q. Each one of them being numbered? A. yeah I think so HIS HONOUR: Well, its a bit unclear there Mr -- CROWN PROSECUTOR: Yes, certainly your Honour. Q. The person that you picked out, who was it? A. Robert Smith. Q. Did you have any difficulty in picking him out? A. No." 82 Moreover, there was no request by trial Counsel for the S 165(2) direction which, it is now submitted, should have been given. 83 Viewed literally, every criminal trial involves identification evidence within the wide meaning given to that phrase in the dictionary to the Evidence Act. The evidence of any eyewitness who gives evidence, based upon his or her own observations, that the accused was present at the place where the offence charged occurred, falls literally within that definition. Yet common sense would suggest, in such a case, where such evidence was not in issue, that there would little if any point served in giving the S 116(1) direction. 84 Whether the observations in Clarke at 424 to 425, concerning the apparent universal and mandatory application of S 116(1) require reconsideration, need not, however, be decided here. 85 If there were error by his Honour in not giving the directions suggested, then the case would be one where an application of the proviso would be appropriate. The reasons for this are straightforward. 86 This was a case where the appellant was known to the complainant as Rob, where it was common ground that they were conversing on the corner, and where it was the complainant's evidence that they walked together from that position directly to the place where, within moments, the assault occurred. It is impossible in those circumstances to see what relevant or helpful direction could have been given to the jury concerning her identification of the man she already knew as Rob. 87 It needs to be firmly borne in mind that juries need those directions that are relevant to the case that they are to decide and only those directions. To embark upon some general excursus concerning substantive or procedural law, unrelated to a live issue, is more likely to confuse than to assist, and should always be avoided. 88 The real issue for the jury was not one of identification, but whether they could be satisfied beyond reasonable doubt as to the truth of the complainant's account of what occurred after she began to talk to the appellant. Her sobriety, her state of consciousness and her general reliability as a witness were relevant to that issue. They were dealt with expansively in relation to that issue in the summing up. They were not, however, relevant to her photographic identification of the man who she knew as Rob, the sole purpose of which was to confirm that he was the appellant. 89 In those circumstances, no risk of a miscarriage of justice arose by reason of the absence of any directions in relation to the photographic identification that was conducted at the police station. This ground of appeal is not made good.

Grounds 5 and 6 - motive to lie 90 In the course of his address, the Crown Prosecutor dealt with the complainant's nomination, to Ms Combo, and to Constable Whitely, of the person "Rob" as the person who had just assaulted her. He continued: "Now that's what she's telling Constable Whitely moments after she's fled from this scene near the toilet block. Now is she making it up members of the jury? I tell you I think not. If so, why? Why would she be making this up? I suppose there are many answers to that and I certainly don't ask you to speculate because she tells you who did it; she tells you it's this person Rob, a person that she doesn't know particularly well, but knows him well enough to recognise him and also knows it's him because he's the bloke she went to the toilet block in the first place when she was fully aware as to what she was doing in terms of being quite keen on the fellow and being prepared to go along with him. So she knows who it was." 91 Later in the address, the Crown Prosecutor said: "You will recall the evidence of the accused himself. I asked him some questions as to whether there was any animosity, I think I said, or disagreement or something like that, between he and DR; there was none, they were friendly. Members of the jury DR is not making up first the fact of these things happening to her, nor the second as to who did them to her. She has no reason to in my submission to you members of the jury and she has not made it up." 92 The invitation to the jury that was said to arise from this submission gave rise to the fifth ground of appeal, it being submitted that it led to a miscarriage of justice. The manner in which it was dealt with by his Honour gave rise to the sixth ground of appeal, it being submitted that his Honour failed to give appropriate directions to the jury concerning the argument advanced. 93 The posing of a question, in the course of a closing address, that is designed as an invitation to the jury to consider why the complainant would be making her evidence up, is both imprudent and inadvisable, that is where the question of motive has not been ventilated in the evidence. This follows from the decisions of this court in Davies NSWCCA 8 December 1994; F (1995) 83 A Crim R 502; E (1996) 39 NSWLR 450; Uhrig NSWCCA 24 October 1996; Graham NSWCCA 2 September 1997 (reversed on other grounds 1998 HCA 61); and Jovanovic (1997) 42 NSWLR 520; and of the High Court in Palmer (1998) 72 ALJR 254. 94 However, what was said by the Crown Prosecutor, in this case, must be viewed in context, and in particular by reference to the fact that he made it clear to the jury that they were not to speculate about the matter. Understood in its full context, the Crown Prosecutor was conveying the message that the complainant had no reason to make up the allegation and was not doing so. He did not directly suggest to the jury that they should ask the offending question of themselves. 95 When his Honour came to deal with this part of the address in the same context in which it had arisen, ie in relation to the complaint to Constable Whitely, he did so in a way that did also not pose the question in a prohibited way. What he said was this: "The Crown agrees that there are two versions by Ms Ross but the Crown says however that the version is consistent with the offence occurring and refers to the yellow and white stripe shirt that was being worn by the accused on that night. However, you may recall the evidence in relation to the trousers. Ms Ross says that on one part of the evidence that he has baggy brown trousers on and I think she tells the police that she does not recall what he was wearing on the bottom, again that is a matter for you. The Crown also says " Well look, is she making it up?" The Crown then goes on to say "Well, ladies and gentlemen, you are just not to speculate". And you may recall the directions I gave you about not guessing or speculating, you must determine this matter on the evidence that is before you." 96 The potential vice in posing the kind of question, discussed in the cases earlier mentioned, lies in the fact that it is a rhetorical question that implies its own answer, namely that in the absence of a reason being identified for the complainant to lie, none existed. It risks consciously or unconsciously reversing the onus of proof, so far as it might imply, unless accompanied by a direction to the contrary (Palmer at 258), that it is for the accused to provide a reason or motive, and that if he or she cannot do so, then the complainant can all the more readily be accepted. 97 As Sperling J, pointed out in E (at 462) the absence of motive cannot be inferred from the absence of evidence of motive, yet to pose the question is to give legitimacy to a line of reasoning that would support such an inference. Moreover, an unfairness can arise so far as a question, posed in such terms, may leave an accused accountable for failing to discern a motive in the mind of the complainant, even though no ready or reliable means exists of accessing another person's mind to discern the reasons for what he or she does or says. (see E at 464). 98 As a matter of common sense and everyday experience of life, one of the first matters that will occur to the jury is the prohibited question - why, unless it is true, would the complainant make the allegation up and go through all the trouble and stress to himself or herself, as well as to the accused and their respective families, that would be associated with an investigation and trial? 99 The reality of that circumstance has not been overlooked by appellate Courts, e.g. F at 511 per Gleeson CJ; Robinson (1996) 1 VR 402; Palmer Vic CA 10 September 1996; Rodriguez (1997) 93 A Crim R 535 at 553 per Callaway JA; Graham at 28 per Levine J and Jovanovic per Cole JA at 527-528 and especially by McHugh and Kirby JJ at 269 and 276 in Palmer. 100 Notwithstanding, the rigours of the criminal law have held the line by reference to the foundational principle that it is for the Crown to prove its case beyond reasonable doubt , and not for the accused to prove his innocence. The only exception allowed has been where a motive to lie has been asserted, on the part of the complainant, or by some other witness essential to the prosecution case, or where such a motive could reasonably be inferred from the evidence. In such a circumstance, justice requires that it be dealt with, and that the jury give consideration to the question whether there was a reason for the complainant to lie. 101 As Hunt CJ at CL said in Uhrig at 16-17: "A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by S 103 of the Evidence Act 1995 for admissibility. If the alleged motive is denied by the witness, other evidence may be led to rebut that denial in accordance with S 106. What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth." 102 In the various decisions, where the prohibited question has resulted in a conviction being set aside, it has been left in a way giving the matter prominence as a "central theme or issue", see F at 15-16; Rodriguez at 541, 544, and 549, or endorsing its legitimacy or otherwise describing it as an "appropriate" or a "reasonable" or "proper" question to ponder: see E at 454 and 467; Rodriguez at 542; and Jovanovic at 538. 103 That was not how his Honour dealt with the matter in the present case. Moreover, the immediate response to the question supplied by the Crown Prosecutor and repeated by his Honour, in my view, served sufficiently to overcome the potential problem. 104 The relevance and permissibility of cross examining a complainant to establish motive (but not the cross examination of an accused to show a lack of awareness of any motive unless its existence has already been raised by him), was confirmed in Palmer (per Brennan CJ, Gaudron and Gummow JJ at 257-258, and per Kirby J at 275 and 278). 105 The correctness of the passage in Uhrig cited above, as a statement of the law, was also recognised in Jovanovic per Priestley JA at 522. His Honour went on to explain that the reference, in that passage, to it being "appropriate" for the trial judge to give the direction as to what should follow in the event of the jury rejecting the motive, appeared to him to have been a reference to it being something that should necessarily be done. 106 Although some support for this view exists in the judgment of Kirby J in Palmer at 275, I would prefer to read the expression in a less rigid way, leaving it to the trial Judge to frame a direction suitable to the way in which, and the firmness with which, the possibility of motive has been opened up on the evidence, and in the closing addresses. In some cases, particularly where the motive is offered by the accused himself or herself, then the additional direction would normally be appropriate, lest the jury think it proper to penalise the accused for offering a reason which they find to be spurious or hollow, or designed unfairly to denigrate the complainant. 107 Where the evidence of a possible motive comes from another witness, or where the matter arises in some half-hearted way, in passing, as I believe it did in this case, then the need for the additional direction will not be so compelling. In such a case it may well be sufficient if the jury has been properly and fairly instructed that the appellant does not have to prove his or her innocence, it being for the Crown to establish guilt beyond reasonable doubt, and that they ought not to speculate about matters that are not established upon the evidence. 108 The possibility of a motive for giving false evidence did in fact emerge, by inference, in the course of the cross examination of the complainant when she was asked about a conversation with Nathan Lenton, which allegedly took place at Tilly's night club, in December 1998. "Q. And do you recall an occasion when Nathan Lenton was with Jacko and Adam at Tilly's nightclub in or about December of last year? A. No. Q. And I suggest to you that you were introduced to Nathan as Robert's cousin. Do you remember an occasion when that occurred? A. No. Q. And I suggest to you that you said to him that after you were finished with Robert you wanted fifty thousand dollars? A. No. Q. That conversation took place didn't it? A. No. Q. Did it take place anywhere? A. No. Q. You see I suggest to you that you were saying to Nathan words to the effect that you were going to get Robert? A. No." 109 In the way in which the cross examination was developed, particularly in the absence of any direct question suggesting that the contemplation of monetary gain provided a motive for the complainant to pursue the claim, and to give false evidence, it would seem to have been more directed towards an issue of credit. However, it was capable of raising an inference as to motive, at least for persisting with the allegation; although possibly not for the initial complaint unless the complainant had been particularly venal in setting out, from the very beginning, to establish a case for compensation - in which event the plan went terribly wrong for her. 110 The defence called Nathan Lenton in its case, to contradict the complainant's denial. He gave evidence of a conversation along the lines put to the complainant, although this occurred, he said, at Colours nightclub at St Mary's, rather than at Tilly's. There was no objection to the evidence which, in any event, could have been called as an exception to the general rule that a witness's evidence, on a question going to credit cannot be contradicted by other evidence noted by Brennan CJ, Gaudron and Gummow JJ in Palmer at 257, or alternatively as a matter going to a fact in issue (per McHugh in Palmer at 265). 111 In cross examination, Mr Lenton agreed that the complainant had given no indication to him on this occasion, of having made up her account of the assault. There was no other evidence touching upon this aspect of the case. 112 For completeness I add, since it is a material consideration for the way in which the case was left, that the appellant gave no evidence suggesting the existence of a motive on the part of the complainant to lie, and was not cross examined in a way inviting him to offer one. At the highest, he was asked to agree, and did agree, that he and the complainant had been on friendly terms. This occurred in the context of questions designed to show that they knew each other, and that he was aware that she liked him - he agreed to having "had some indication" of that. This had a direct relevance so far as it tended to support the complainant's version that they went for a walk and kissed, after their meeting on the corner. 113 The Crown Prosecutor did not deal with the Lenton conversation in his address at all. However, counsel for the accused did take it up, after emphasising the need for the jury to "pull (the complainant's) evidence to bits, (to) scrutinise it, (and to) put it under the magnifying glass", and to look for any support for it, as well as for any matters that supported the defence case. This occurred in the course of his analysis of the matters which, he suggested, should leave the jury with a reasonable doubt about the complainant's credibility and reliability. 114 When he came to the evidence of Mr. Lenton, and her denial, he said: "What do you do with that? Is it a motive perhaps? Who do you believe on that? Why does she deny it? Why does she deny it but she does. 'How much would it cost me to have you for the night?', words to that effect. She says 'Nuh', never said it. The accused said it happened on many occasions in his interview and in his evidence. Angelo says it happened. Glen says it happened. Melissa said it happened. What do you do with that? So you give him the benefit of the doubt, that's what you do with it. That's what you're required to do. Why would she deny saying it? It's all odd. It's very odd. Her whole evidence is odd. It's not enough."

115 When his Honour came to this matter in his summing up it was dealt with in the following terms: "Well just in relation to that just let me tell you this, ladies and gentlemen, that most cases where there are victims of crime they are entitled to make an application for victims compensation. That is to be determined by usually a tribunal, and so whether she was to receive $50,000 or not, and you have seen the injuries she received, she may well have been entitled to receive 50,000 or less, but that is beside the point. I think Mr. Cattini was saying to you that in fact this lady was bragging about it, that she is going to receive $50,000. But as I said in relation to that people are entitled to make an application for it, whether they get it or not is quite a different thing." 116 These directions did no more than provide an explanation by which the jury might have better understood the significance of any mention by the complainant of an expectation of receiving $50,000, ie if there had been such a mention. His Honour refrained from giving any direction at this point in relation to motive, or from raising the rhetorical question. 117 Admittedly he did not go on to give the additional directions that were said to be "appropriate" in Jovanovic where motive is raised by the defence. However, I am not persuaded, in view of the way that the matter was left, that there was any risk of a miscarriage of justice in its omission. Certainly there was nothing to suggest that if Mr. Lenton's evidence was not believed, then that might rebound to the discredit of the defence case. If anything, the directions that were given tended to assist the defence since they provided the background against which the relevant conversation might be understood. 118 The absence of any complaint by trial counsel in relation to the matters, now sought to be raised in these grounds, the lack of prominence given to the matter of motive, and the absence of any encouragement given directly to the jury to ponder upon the question 'why would the complainant lie', leads me to the conclusion that, in the context of this trial, there was no error or risk of a miscarriage of justice. I would refuse leave under R4 of the Criminal Appeal Rules. 119 For these reasons I do not consider that any ground of the appeal has been made good. In my view the appeal should be dismissed, and the conviction and sentence below confirmed. 120 JAMES J: I agree with Wood CJ at CL. **********

R v Smith

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