16 The matters to which I have referred in the preceding paragraph were not the only factual issues demonstrated by the evidence to divide the versions given by the complainant and the applicant. They were, however, issues which bore in a material way upon the ultimate issue as to whether the Crown had excluded beyond reasonable doubt the applicant's contention that, at the relevant time, he was not aware that the complainant was not consenting or might not be consenting; and were also materially relevant to the reasonableness of the applicant's asserted belief that the complainant was consenting to the sexual act. Accordingly, it would seem, at first blush, that when the judge was directing the jury that it was necessary for them to consider the reasonableness of the accused's belief that the complainant was consenting, it was not only desirable, but indeed required by s.37, that he remind them of those passages in the evidence (including the record of interview) which bore upon the matters to which I have referred in the preceding paragraph [14].
17 Mr. McArdle, who appeared for the respondent on the appeal, initially contended - as I understood his argument - that the "facts in issue" referred to in the provisions of s.37(1) of the Crimes Act were intended only to comprehend the "elements" of the crime of rape. Later, as I understood him, he expanded that to submit that the words "relevant to the facts in issue" mean "the evidence relevant to the elements of the offence". More particularly, Mr. McArdle submitted that s.37 had no real part to play in this trial because it was largely directed to those cases where the complainant to a sexual assault had "frozen" during the course of the sexual act. Furthermore, he submitted, that the issues in this trial were so obvious and so clearly expressed in the course of evidence as to render it quite superfluous for the judge to relate whatever directions of law he gave to the jury to the "facts in issue in the proceeding", whatever those words may mean.
18 For my own part I have some difficulty in accepting the submissions made on behalf of the Director. Whenever the central contention in a rape case is one concerning the states of mind of the accused and the complainant, and not one relating to the issue of penetration, the jury will always have to consider circumstantial evidence of facts bearing upon that central issue. It is, in my view, that evidence which bears upon the ultimate issue in the proceedings which is comprehended by s.37(1) of the Crimes Act when it requires the judge to relate any direction given in accordance with the section "to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction". Those words cannot, as it seems to me, be read - as I think counsel for the Director was submitting - as referring to the elements of the offence of rape or the "ultimate issues" in the proceedings. The distinction was drawn by the High Court in the recently published decision of Nicholls & Coates v. The Queen[15] particularly in the judgment of McHugh, J. where his Honour was discussing the distinction between a "collateral fact and a fact in issue"[16]. In most, if not all, cases a distinction will be drawn between proof of "a fact in issue" and proof of "the ultimate issue" or "the issue". When s.37(1) of the Crimes Act talks of the judge being required to direct the jury that "in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances - and relate any direction given to the facts in issue in the proceedings so as to aid the jury's comprehension of [that] direction", it seems to me to be tolerably clear that the requirement imposed on the judge is to relate his direction as to the accused's belief in consent to the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence. After all, that is the natural meaning of the words contained in the section, and is - in any event - in conformity with the procedural obligation imposed by the common law upon the judge, as made clear by Alford v. McGee (supra).
19 Counsel for the respondent further submitted that "facts in issue" cannot be created simply by counsel for the accused putting matters to the complainant in cross-examination. Issues raised in such a manner, so counsel submitted, are simply "credit issues" and are collateral to the probative facts in issue. Assuming for the moment that this submission ought to be accepted[17], the facts in issue in this case (to which I have in particular referred to above) did not necessarily arise during the course of the cross-examination of the complainant, but rather were raised in the evidence tendered by the prosecution to the Court. That evidence included the evidence-in-chief of the complainant and the record of interview between the police and the applicant which became evidence at the trial. Statements made by an accused to police officers which are tendered as evidence in the trial become evidence of the facts in issue whether they are inculpatory (in the form of admissions) or are self-serving exculpatory statements made by the accused. The whole statement goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict, and they can give whatever weight they wish to different parts of the statement. No doubt the failure of the accused to give evidence may influence the jury's attitude to the self-serving answers, but those answers remain part of the evidence in the trial upon which it is open to the jury to act[18].
20 For the reasons which I have given it seems to me that this was a case where the judge not only failed to comply with the obligation imposed upon him by s.37(1) of the Crimes Act, but was a case where that failure became material notwithstanding the brevity of the evidence in the trial. As I have said, trials of rape involving issues of consent and belief in consent - as distinct from denials of penetration - are cases which involve issues which are not always easy for the jury to grasp; a matter which no doubt underlay the introduction into the Crimes Act of the provisions now found in s.37. I am, accordingly of the view that the failure to comply with the provisions of s.37 constituted an irregularity in the trial amounting to a miscarriage of justice within the third limb of s.568(1) of the Crimes Act. Mr. McArdle submitted that, if the Court came to that conclusion, the irregularity was of such a nature that it could be
saved by the proviso to the sub-section. He again pointed to the shortness of the trial and the fact that no exceptions were taken to the judge's direction. It is true that no exception was taken to the judge's directions, but that is a "double-edged sword". As Mr. Priest pointed out in the course of argument, there are in a criminal trial "two ends of the bar table"; and each end has, or should have, an interest in ensuring that the trial does not miscarry. It should have been very evident both to the accused's counsel and to the Crown that the judge had failed to comply with his statutory obligation and that that was a matter which ought to have been brought to his Honour's attention. Although, as I have previously indicated, I do not regard the judge's failure to comply with the section as necessarily amounting to a "fundamental irregularity in the trial", it was nevertheless an irregularity, in the context of the trial, in respect of which the Crown has not discharged its burden of demonstrating that the proviso should be applied[19]. In my view this was a case where the failure of the trial judge to relate the law which he had given to the jury to the facts in issue deprived the applicant of "a chance which was fairly open to him of being acquitted"[20]. I would, accordingly, allow Grounds 2 and 3 of the applicant's grounds of appeal, set aside the convictions recorded by the jury, and direct a new trial.