R v Coney (1882) 8 QBD 534; Roughley v R [1995] TASSC 14; (1995) 5 Tas R 8, referred to.

Criminal Law - Jurisdiction, practice and procedure - Witness - Cross-examination - Generally - Leave to cross-examine - Witness giving unfavourable evidence - Test for "unfavourable evidence" - Evidence as to complainant's capacity to consent to sex.

Evidence Act 2001 (Tas), s38(1)(a).

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal against sentence - Appeal by convicted persons - Applications to reduce sentence - When refused - Particular offences - Offences against the person - Sexual offences - Rape - Five years.

Appellant Randall: Legal Aid Commission of Tasmania

Judgment Number: [2004] TASSC 42

1 The appellant Randall was convicted of the rape of the complainant as a principal, and the appellant Farmer likewise convicted of rape, but as an aider or abettor of Randall. Each appeals his conviction. Randall was sentenced to imprisonment for five years and has appealed the sentence.

2 In November 1995, Randall was the manager of a nightclub in Launceston called "the Playroom". He had a 15 per cent interest in the business, a man named Davies had a further 15 per cent interest and Farmer owned the remaining 70 per cent. On Sunday, 5 November 1995, the complainant attended the Playroom some time before midnight and was observed consuming alcohol in the bar in the company of Farmer at about midnight or 1am the following morning. At about 2.15am, she was seen by another witness (Mark Foster) at the main entrance talking to the two appellants for about 10 minutes. She did not appear to the witness to be in total control of what was happening. At about 3am, most of the patrons had left the premises, but there were still present a number of members of staff and of bands which had been engaged to provide the night's entertainment. In the manager's office there were the two appellants, the other partner Davies and one Touber, a promoter who had arranged for performances that night by several bands. He had travelled with Farmer from Hobart where they both then lived and they subsequently returned there together in Farmer's car. They were discussing business. The complainant, an 18 year old woman, was also in the office. When she got there and in what circumstances is not clear from the evidence, as it was the Crown case that she was so stupefied by alcohol or drugs that she had little recall of the events surrounding the commission of the crime. Farmer in fact was charged with procuring by administering drugs, but was acquitted of that charge by the jury.

3 Touber gave evidence that the complainant had come to the office and had offered to strip. The offer was not accepted and he had then left the room. He said that on his return, he observed her on a desk in the office, naked. He said there were a lot of people milling about the open door. He had navigated his way past them and observed Randall standing with his trousers down having sexual intercourse with her, as she lay on the desk. This continued for 45 - 90 seconds, whereupon the complainant sat up and Randall pulled his trousers up. He recalled Farmer and a witness Lockwood being present and said there would have been 10 or 12 people in the room "standing around like stunned mullets". He and Farmer had then left the office and returned to Hobart.

4 Davies gave evidence that towards the end of the evening, he, Farmer and Touber had been in the office discussing business. He did not recall if the complainant had entered the office before he did, but at some stage she was there and had offered to strip for money. He, too, claimed to have then left the office, leaving her with Farmer and Touber. When he returned a short time later, she was standing on one of the desks, naked, in the presence of 10 to 12 people, including Farmer. Touber was also there, or came in shortly thereafter. The complainant got into a lying position on the desk and Randall had then had intercourse with her.

5 Lockwood, a security officer employed at the Playroom, went to the office to sign off at about 3am. He found four or five persons there, including the complainant, who was lying on the desk on her back, naked. Others whom he saw were Farmer, Randall and Davies. He observed Randall having sexual intercourse with the complainant for a couple of minutes. He was not sure if Touber was present in the room. At the conclusion of the act, Randall pulled his trousers up and left and Lockwood left as well.

6 Randall was interviewed by the police on 23 November 1995 and claimed that the complainant had entered the office and offered to strip for $60. He said she removed her clothes and lay back on the desk, but nobody in the office had touched her. At the trial, however, neither appellant seriously challenged the proposition that Randall had had sexual intercourse with her in the presence of Farmer and others. What was essentially in issue in Randall's trial was the issue of consent and in Farmer's trial, that issue and his encouragement of Randall to rape the complainant. Neither of the appellants gave or adduced evidence at trial.

7 Both Touber and Davies gave evidence not only of the offer by the complainant to strip, but of her general condition being such as to indicate that she was conscious of what was going on around her, capable of giving consent to sexual intercourse with Randall, and was in fact giving consent to that act. Lockwood, on the other hand, gave evidence supportive of the Crown case, although qualified in cross-examination, that she was, in effect, comatose and quite incapable of giving consent to sexual intercourse. There was ample evidence from a number of other men in the office at about the time intercourse occurred which supported the Crown contention that this was her condition. These witnesses claimed not to have seen the act of intercourse, but did see the complainant while she was naked. No challenge is made to the reasonableness, on the evidence they heard, of the jury's findings, implicit in the verdict, that Randall did have sexual intercourse with the complainant without her consent and without there being any honest and reasonable mistake on his part that she was consenting.

8 The original notice of appeal raised the sole ground that the verdict was, in all the circumstances, unsafe and unsatisfactory. This ground was expressly abandoned by the appellant and four further grounds added. They were:

"2 The Trial Judge erred in law by granting leave to the Crown to lead evidence from Natalie Carlson pursuant to s66 Evidence Act 2001;

3 The Trial Judge erred in law by granting leave to the Crown to cross-examine Scott Davies and Charles Touber pursuant to s38 Evidence Act 2001;

4 The Trial Judge erred in law by refusing leave to Counsel for Mr Randall to inform the jury in his closing address that the unexplained failure of the Crown to call material witnesses it might have been reasonably expected to call may lead to the inference that the witnesses would not have assisted the Crown case; and

5 The Trial Judge erred in law in failing to direct the jury that the unexplained failure of the Crown to call material witnesses it might have been reasonably expected to call may lead to the inference that the witness would not have assisted the Crown case."

9 Natalie Carlson was a friend of the complainant and saw her on Monday, 6 November 1995. The complainant herself gave evidence that she told Miss Carlson that she thought something had happened the night before. She could not, at trial, recall any other conversation. Miss Carlson gave evidence before the jury that the complainant had come to her house, asked her to go for a drive with her and that a conversation had occurred as follows:

"I said 'What's wrong' and she said 'Something's wrong. I don't know what happened last night.' She said she'd been at the Playroom. 'There's big pieces - chunks of my memory I can't remember.' ...

She said 'My head feels really fuzzy and hazy.' She doesn't know why she feels like that because she doesn't feel that drunk. She said 'I think something bad's happened.' I said 'What do you mean, something bad's happened?' and she said 'I think they've - something bad.' I said 'What do you mean?' She said 'Well, my bra's ripped. My arms are sore' and she said 'I think they've had sex with me.' I said 'Who?' She said 'I don't know.' She said 'I think something bad's happened' and then she said - we just sort of sat for a minute and she was kind of staring out the window and I said 'Well, what do you remember?' She said 'I can remember being at the Playroom. I saw Skip [Randall] and Farmer. ... And everything else is a blur.'

Q: Okay. Did all this come out in a spontaneous burst?

A: This came out probably over a period of maybe five to ten minutes while we were sitting in the car at McDonalds. "

10 Prior to this evidence being given, counsel for Randall made an objection that at the time the complainant asserted these facts to Miss Carlson, their occurrence was not fresh in the complainant's memory. The learned trial judge accordingly conducted a voir dire. In the course of the voir dire it was put to Miss Carlson that these assertions had not been made to her by the complainant on the Monday, but had been made to her over a period of several weeks. Support for this contention was suggested to be found in a statement Miss Carlson had made to the police on 7 November 2001. In that she had claimed that the complainant told her on the Monday:

"K told me something happened last night and she couldn't remember what. She said she couldn't remember everything that happened to her at the Playroom but she knew something bad had happened.

K was really disorientated, she was acting strangely.

I was trying to understand what K had told me and I remember sitting in silence with K for a couple of minutes.

We went back to my house and drank a coffee and talked more.

K could remember bits and pieces of what happened but she couldn't make sense of what she remembered. ...

K said she had a big gap in her memory during the night, and during the night she knew something bad had happened. She said her bra strap had been ripped and she couldn't remember how and she said she didn't feel hung over but felt strange and all cloudy in the head."

"Over the next few weeks, she started to remember other things.

She said that she'd been speaking to Farmer and Skip [Randall] and they'd given her a drink. She said she remembers being in a room with more than one person."

When her failure in that statement to assert that the appellant's names had been mentioned on the Monday was put to her in cross-examination by Farmer's counsel on the voir dire, she said she had been thinking intently over the last week of what had been said on the Monday and had not done so with that intensity prior to her statement to the police. To counsel for Randall she said that in the past week she had been sure that the complainant had told her on the Monday that the appellants had been in the room the night before, but she remembered "from day one" that the complainant had said on the Monday "I think they had sex with me. I think they've done things to me."

11 The Evidence Act 2001 ("the Act"), s66, relevantly provides:

"66 (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the previous representation that is given by -

(b) a person who saw, heard or otherwise perceived the representation being made -

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation."

Whether or not the condition precedent for the admission of the evidence has been satisfied in any given case is a question of fact for the judge to decide. In this case, the learned trial judge, having heard the evidence, was satisfied that the representation made by the complainant to Miss Carlson was made on the day following the occurrence of the asserted fact and that it was then fresh in the complainant's memory. He was perfectly entitled to make such a finding and no error has been demonstrated. Furthermore, the only part of the evidence given to the jury by Miss Carlson which it was argued had not been the subject of a representation on the Monday, was the reference to the presence of the appellants at the Playroom. This was not a matter of controversy in any event. It was common ground that they had been there when she was naked. This ground has no substance.

12 The Act, s38(1), provides:

"38 (1) A party who called a witness, with the leave of the court, may question the witness as though the party were cross-examining the witness about -

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement."

13 I have already mentioned the evidence of Touber and Davies in respect of the alleged offer by the complainant to strip and their evidence of her condition and behaviour which was suggestive of consent to Randall's act of intercourse. The Crown sought, and was granted, leave to question each as though it was cross-examining them about those matters, claiming that this evidence was unfavourable to it.

14 The Act, s38, represents a clear departure from the common law which restrained parties from cross-examining their own witnesses save in circumstances where they were shown to be hostile. It has been the subject of many observations by the Supreme Court of New South Wales where the section has been in operation for nearly a decade longer than in this jurisdiction. In R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450, a case where a crucial eye witness was not called, Greg James J, with whom Spigelman CJ agreed, made a passing reference to the section at p461 - 462, where he said:

"In the context of a criminal case, care may have to be given to the question of what 'unfavourable' to the Crown means. That concept will not necessarily be satisfied simply because the witness' potential testimony does not accord with some prosecutor's view of the appropriate 'camp' or some case theory which does not accord with all the otherwise reliable evidence.

There have been various views taken in the court as to the meaning of 'unfavourable' in s38 of the Evidence Act (see R v Milat (Hunt CJ at CL., 23 April 1996, unreported); R v Lozano (Court of Criminal Appeal, 10 June 1997, unreported); R v Souleyman (1996) 40 NSWLR 712; R v Pantoja (Court of Criminal Appeal, 5 November 1998, unreported); R v GAC (Court of Criminal Appeal, 1 April 1997, unreported); R v Adam and Adam (Wood CJ at CL, 24 November 1998, 3 December 1998, 11 December 1998, unreported); on appeal R v Adam and Adam (Court of Criminal Appeal, 23 July 1999, unreported); R v Patsalis and Spathis (No 10) (Kirby J, 10 August 1999, unreported). Those views properly reflect the object of s38 of the Evidence Act to provide a wider entitlement than s53 of the Evidence Act 1898, its predecessor. That provision dealt with the circumstance of a witness proving 'adverse'. However, the full width of any entitlement under s38 and the criteria for the proper exercise of discretion to permit cross-examination remain to be settled. Other questions remain as to the appropriateness of calling witnesses known or expected to give unfavourable evidence and the eliciting or refraining from eliciting particular testimony against the interest of or not to the advantage of the party calling the witness. There is much about the application of the section still to be resolved."

15 In the case of R v Pantoja referred to by James J above, leave was given at first instance for the Crown to cross-examine a witness called by it who, in cross-examination by the defence, gave evidence supportive of an alibi for the accused, notwithstanding that he had made a prior statement inconsistent with that testimony. The appeal against conviction was dismissed. At 25, Adams J said:

"It should be noted that s38(1)(a) is confined to circumstances in which a witness gives 'unfavourable' evidence. Other paragraphs of the subsection give other grounds for cross-examination, of which para(b) is directly applicable to the circumstances here and which would have permitted the Crown to ensure that this important evidence went to the jury upon an accurate basis. However, as I have said, he did not choose this course. It seems to me that some attention will need to be given in due course to the meaning of 'unfavourable' so far as the Crown case is concerned. The Crown case is, in essence, the truth, wherever that might lead and even if it leads to a reasonable doubt about guilt. I am far from persuaded that merely because a witness declines to give evidence supporting the theory of the facts for which the prosecution contends or, indeed, gives evidence that contradicts that theory or contention, his or her evidence may thereby be regarded as 'unfavourable'. How can truthful evidence ever be 'unfavourable' from the Crown's point of view? In the circumstances of this case, however, there were good reasons for concluding that, if not untruthful (and I do not think that this was ever suggested in the sense of being deliberate) the evidence of the witness as adduced by the cross-examination was doubtful, even if (by parity of reasoning) the evidence adduced in chief by the Crown was also doubtful."

16 In the circumstances of this case, the evidence of both Touber and Davies, so far as consent was concerned, conflicted not only with "some case theory" of the prosecution but with the preponderance of evidence of the complainant and those who observed her immediately before or after the act of sexual intercourse occurred. Lockwood, who also saw that act, described the complainant as "lying on her back with her head up against the wall with her eyes shut" when he first entered the office. When Randall had intercourse with her, he said he did not see her make any response. In cross-examination, however, he agreed that at the committal proceedings he had said he had not reported the incident to the police because he did not think anything of it at the time, "she had sex with Craig Randall, she wasn't hurt, she wasn't forced by what I could see". He also said that as far as he was concerned "she may have been in it". On trial, he said he believed this to be true.

17 On the other hand, Derek Beresford, a security officer, said that at closing time he saw the complainant between the back bar and the front bar holding on to somebody and she appeared to be drunk. A little later he entered the office and saw her naked and lying on her back in the presence of about ten men. Her eyes were half closed. He never saw her open them and as she lay on the table, she made a moaning noise. Greg Murray, another security officer, went to the office and saw the complainant lying on the desk "not moving or doing anything much at all, her eyes rolling around in her head". She appeared to be trying to get up "but nothing was moving". Nothing happened to her before he left the office. He said Randall had given him money and asked him to take the complainant home in a taxi. He and another man had dressed her and had taken her down the fire escape to a taxi because "she wasn't capable of walking down the stairs on her own". On entering the taxi, she "sort of slumped and laid over on the back seat of the taxi". Asked for her address, she had muttered one somewhere in Invermay Road "which turned out just to be an empty warehouse block or something". He then took her back to his premises.

18 Timothy Peypers was a band member. He saw the complainant naked on a table in the office with up to eight men nearby. She was lying on her back with her eyes shut. She said nothing. Her head was rolling about a bit and "she seemed to have a lack of control - she wasn't in control of her actions. She seemed intoxicated or inebriated". He left after about 20 minutes. Scott Targett, another band member, saw the complainant lying naked on the desk in the presence of others. While he was there, he said he saw her trying to get up without assistance, but "she kept collapsing". He saw her try to sit up "maybe twice". She did it in "kind of a slow motion".

19 Joshua Munday also played in a band and went into the office where the complainant was lying naked on the desk. He said "she seemed quite out of it, quite drunk, but she was conscious and she half sat up". He said her eyes were open but "maybe glazed over". The men in the office were laughing but she did not appear to be.

20 Matthew Mann was an employee of the Playroom. His job was to collect glasses and generally clean up. About 3am he saw the complainant at the bar. She appeared drunk. About 4am, he went to the office and saw the complainant lying on her back on a table. She appeared extremely drunk and he did not "see a lot of conscious reaction".

21 Michael Tiffin had a similar job. He was summoned to the office and saw the complainant lying naked on the desk. Her eyes were half opened and she was "quite oblivious".

22 Geoffrey Taylor was the head of security at the Playroom. He saw a girl in the office on the table, naked. He described her as "relaxed enough but obviously had a few under the belt; she was pretty well out there". Asked to elaborate, he said "could be like any - I'm not a judge of the difference in intoxication or anything else but glazy eyed, vague, but she was smiling so". Asked if she was smiling at him, he said "just in general, she had a smile looking up at the ceiling and she turned her head to the left away from me". That was the only movement he noted her make. Nothing happened to her in his presence. He said he was there for only a minute.

23 Given the support for the complainant's claim to have been incapacitated by alcohol or drugs at the time of intercourse which can be gleaned from the evidence of the men who saw her at about that time, the evidence of both Touber and Davies was clearly inconsistent with the Crown case of incapacity to give a free and rational consent to that intercourse and unfavourable to the Crown. Many of the cases to date have not been confined to situations where reliance was based only on s38(1)(a), but rather on the fact that a prior inconsistent statement had been made (s38(1)(c)) or that the witness was not in examination-in-chief making a genuine attempt to give evidence (s38(1)(b)). In Adam v R (2001) 207 CLR 96, evidence in a prior inconsistent statement of a Crown witness was held relevant because, if accepted, it affected the assessment of the probability of the existence of some of the central facts in issue in the trial. Furthermore, the trial judge found that the witness was not making a genuine attempt to give evidence. At 106, the majority judgment of Gleeson CJ, McHugh, Kirby and Hayne JJ contains the following statement:

"The finding which his Honour made was, however, a finding which clearly bore upon the question presented by s 38(1)(b): was the witness, in examination in chief, making a genuine attempt to give evidence? Given that the witness had made prior inconsistent statements, there is no doubt, then, that pars (b) and (c) of s 38(1) were satisfied. It is not necessary in those circumstances to consider whether par (a) was also met. There appears much to be said, however, for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without 'making a genuine attempt to give evidence', is to give evidence 'unfavourable' to that party."

24 The granting of leave under s38(1)(a) in no way depends upon some objective assessment by the trial judge when the application is made of the truthfulness of the evidence, the subject of the application for leave to cross-examine on. Indeed, it is only at the conclusion of all the evidence that any proper assessment of the truth can be made by the Court. As the Crown's concern should always be to place the truth before the jury, where there is a reasonable basis for presenting a particular version consistent with the guilt of the accused, there is much to be said for the proposition that a material witness such as an eye-witness to the actus reus should be subjected to testing if he or she advances evidence quite inconsistent with that version. In my view, the evidence of both Touber and Davies was unfavourable to the Crown which had called them as witnesses and that opened the way to the learned trial judge to permit their cross-examination under s38(1)(a). Furthermore, it was clear from a previous aborted trial that if the Crown did not test the evidence of these witnesses, it would not be contested by the defence and might assume an unwarranted probative value because it was led by the Crown.

25 The Crown has an obligation to call available material witnesses. In Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 at 674, Dawson J said:

"All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. "

The prosecutor in this case carried out his obligation to call Touber and Davies because their evidence, though inconsistent with the Crown case, was not apparently judged by him to be incapable of belief. The Act now gives a prosecutor, faced with unfavourable evidence which it is his or her duty to call, the opportunity to cross-examine upon that evidence and upon the witness' credibility in respect thereto. It is not the prosecutor's obligation to espouse or adopt that evidence and it is in the interests of justice that in circumstances such as these, the truth be ascertained by a proper testing of the evidence by permitting the Crown to cross-examine upon it.

26 There remained an obligation on the learned trial judge to exercise his discretion to grant the leave sought in accordance with the limits placed upon him by the Act, ss135, 137 and 192. He gave detailed consideration to each section in the reasons published by him ([2003] TASSC 140). The only factor advanced before him or before this Court was that of unfairness, it being submitted that by giving the Crown leave to cross-examine Touber and Davies, their evidence was being singled out and treated as different in character from that of all the other Crown witnesses. I can see no basis for regarding this as being unfair. There would be a justified cry of unfairness if all the Crown witnesses had been treated in the same manner and had been questioned as though the Crown were cross-examining them. The Crown was entitled to invite the jury to reject their evidence as inconsistent with that of the other witnesses for the Crown. In making that submission, the Crown, in the circumstances of this case, did so after the witnesses had been tested in cross-examination and the jury had the benefit of assessing their response thereto.

27 Section 38(6) provides:

"(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction, it is to take into account -

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party."

In this case, the Crown gave very late notice of its intention to seek leave. A first trial of the appellants had been commenced on 17 November 2003, but aborted on 25 November 2003 because inadmissible evidence, irremediably prejudicial, had been given. Touber and Davies had been called on that trial, but no similar application had been made. A second trial at which the verdicts, the subject of these appeals, were returned, commenced on 1 December 2003 and the notice given in writing on Friday 28 November 2003, one working day before the evidence was led. Furthermore, it was given in inconclusive terms, namely that the Crown may seek leave. No prejudice to Randall was claimed by his counsel on trial or on appeal by virtue of the lateness of the notice given. So far as the second consideration in subs(6) is concerned, as I have already said, the learned trial judge had cause to believe that the witnesses were unlikely to be challenged by any other party. There was no reason, in my view, why leave should not have been granted.

Grounds 4 and 5 - The failure of the Crown to call the complainant's mother

28 These grounds allege that the complainant's mother was a material witness who ought to have been called by the Crown, but inexplicably was not so called. At the conclusion of the evidence, counsel for Randall indicated to the learned trial judge that he intended in his address to invite the jury to conclude that, had she been called, her evidence would not have assisted the Crown case and submitted that the learned trial judge should give a direction to that effect in his summing up. His Honour rejected both courses as inappropriate.

29 The only reference in the case to the complainant's mother was made by the complainant when she said that on the day after the incident at the Playroom, on her return home she told her mother she "thought something had happened the night before". As already noted, she had said to her friend Miss Carlson words to much the same effect, although she said she thought something bad had happened to her and did elaborate a little. The complainant was not cross-examined about what else, if anything, she had said to her mother, nor was her evidence in this regard challenged. There was no request by Randall or his counsel for the complainant's mother to be called as a witness and if any proof of evidence had been procured from her, it had not been disclosed to the defence. In these circumstances, I find it impossible to accept that she was a material witness. What she might have said is a matter of speculation.

30 Reliance for the comment and direction which the grounds of appeal say should have been permitted and given is placed upon Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. That was a civil case and one, moreover, in which it might reasonably have been expected that a party would give or call relevant evidence which was not given or called. It was held to be open in such a case to conclude that the failure of the party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case (per Windeyer J at 321). Here, there is no reason why the complainant's mother might have been expected to be called. The complainant's evidence of what she told her mother was not challenged. There was no reason to suppose that had she been called, she could have added to or subtracted from her daughter's testimony in that respect. The mother's evidence was not "necessary to unfold the narrative and give a complete account of the events on which the prosecution" was based (see Whitehorn v R (supra), per Dawson J at 674; Dyers v R (2002) 210 CLR 285 at 295, per Gaudron and Hayne JJ). Furthermore, as Dawson J pointed out in Whitehorn v R (supra) in the sentence following the passage which I have cited from 674:

"... if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made."

Having regard to the unchallenged evidence of the complainant and that of Miss Carlson as to her recollection on the following day of the events of the night of the crime, calling her mother would have been unnecessarily repetitious.

31 The application of the rule in Jones v Dunkel (supra) in criminal cases has been held to be confined to exceptional cases. Its limitations in respect of a failure by the accused to give or adduce evidence have been pointed out in RPS v R [2000] HCA 3; (2000) 199 CLR 620 at 632 - 633 in the joint judgment of Gaudron ACJ, Gummow, Kirby and Hayne JJ, where they said:

"By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 at 227-228 per Mason CJ, Deane and Dawson JJ:

"[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused." (Emphasis added)

In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations."

In the more recent case of Dyers v R (supra), Gaudron and Hayne JJ observed at 291:

"As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi (2001) 205 CLR 50 at 74. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.

Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses."

32 In my opinion, permitting counsel for Randall to comment to the jury in his address about the Crown's failure to call the complainant's mother as a witness, would not have been justified, nor was there any error in the learned trial judge declining to give the direction sought. The appeal against conviction should be dismissed.

33 The original notice of appeal contained four grounds and a fifth was added by leave at the hearing of the appeal. They are as follows:

"1 The verdict is against the evidence and the weight of the evidence;

2 The verdict in all the circumstances is unsafe and unsatisfactory;

3 The learned Trial Judge misdirected the jury as to the elements of aiding and abetting, in that the jury was instructed:

a) that the appellant could be found guilty of aiding and abetting the crime of rape on the basis that he permitted the Manager's office to be used for the sexual act; and

b) that the appellant could be convicted as an aider/abetter by failing to act when the sexual assault took place;

4 The learned Trial Judge misdirected the jury that the presence of the appellant in the circumstances of this case could amount to aiding and abetting.

5 The learned Trial Judge erred in law by misdirecting the jury in relation to proof of aiding and/or abetting by failing to direct the jury that they had to be satisfied beyond a reasonable doubt that the appellant did not have an honest and reasonable belief that the complainant was consenting to the act of sexual intercourse, thereby giving rise to a substantial miscarriage of justice."

It is convenient to deal with the grounds of appeal in reverse order.

Ground 5 - Honest and reasonable mistake on the part of an abettor

34 At the commencement of his summing up, the learned trial judge distributed two written memoranda to the jury as follows:

Before the accused is guilty of the crime of rape, the jury must be satisfied beyond reasonable doubt that:

(2) had sexual intercourse with [the complainant];

(4) did not, honestly, but mistakenly, believe on grounds that the jury think reasonable, that she was consenting.

Sexual intercourse means, the penetration to the least degree of the vagina, genitalia, anus, or mouth by the penis and includes the continuation of sexual intercourse after such penetration.

Consent, for the purpose of this case, means a consent which is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which the consent is given. Without limiting the meaning that may otherwise be attributable to the expression 'freely given', a consent is freely given where it is not given by a person so affected by liquor or drugs, or so otherwise affected, as to be incapable of forming a rational opinion upon the matter to which the consent is given."

Before the accused is guilty of the crime of rape, the jury must be satisfied beyond reasonable doubt that:

(2) Shane Farmer, shortly before, or during the commission of that crime, aided and/or abetted Craig Randall to commit that crime.

Aiding simply means doing an act to assist another person to commit the crime. Abetting means encouraging or urging another person to commit a crime. The two expressions often overlap.

Before a person can be convicted of a crime by aiding another to commit that crime, the jury must be satisfied beyond reasonable doubt that:

(a) The crime was committed (in this case, the crime of rape)

(b) The accused wilfully did an act or acts intending that it or they should aid the principal offender to commit the crime charged.

(c) At the time the accused aided the principal offender, he knew of the facts that must be proved to establish the crime charged, (in this case, that he knew that Mr Randall was going to, or was engaged in, sexual intercourse with [the complainant] without her consent [as defined].

Before a person can be convicted of a crime by abetting another to commit that crime, the jury must be satisfied beyond reasonable doubt that:-

(b) The accused was then present, and wilfully did or said something intending that it should encourage the principal offender to commit the crime charged.

(c) That the accused words and/or conduct in fact encouraged the principal offender to commit the crime.

(d) At the time of those acts and/or words he knew of the facts that must be proved to establish that the crime charged was committed."

In charging the jury in respect of the crime of rape alleged against Randall, the learned trial judge told them that they had to be satisfied beyond reasonable doubt that Randall had sexual intercourse with the complainant without her consent, and, furthermore, that Randall did not honestly and reasonably believe on grounds which they thought reasonable that she was consenting. No criticism has been made of the elaboration he gave in respect of each of these elements. When he came to the crime alleged against Farmer of aiding and/or abetting Randall in the rape of the complainant, he instructed them as follows:

"... shortly stated, there are two elements, that the crime was committed by Mr Randall and Mr Farmer shortly before or during the commission of that crime aided or abetted Mr Randall to commit rape. And as I've written down there, aiding simply means doing an act to assist another person to commit the crime and abetting is a rather old-fashioned word, it means encouraging or urging another person to commit a crime, and quite obviously the two expressions overlap because an act that's aided, you do something to help someone commit a crime, you're obviously also encouraging them or abetting them. I think the dictionary uses the words 'hound on' as a meaning of abetting, it's to encourage someone to commit a crime.

So what does all that mean? I've written down this. Before a person can be convicted of a crime by aiding another to commit the crime, the jury must be satisfied beyond reasonable doubt, as I've said, that the crime was committed. Two, that the accused, that's Mr Farmer, wilfully did an act or acts intending that it or they, the acts, should aid the principal offender to commit the crime charged. So he must do something wilfully, deliberately intending to give assistance to commit the crime, and the third element, at the time he gave that assistance Mr Farmer knew the facts that must be proved to establish the crime charged, in this case that he knew that Mr Randall was going to or was engaged in sexual intercourse with [the complainant] without her consent, because you'll remember sexual intercourse includes initial penetration and the penetration that continues after that initial penetration. And then aiding and abetting is the same kind of proposition, the elements are once again that the crime was committed, rape, that the accused was then present when that crime was being committed and did or said something intending that it should encourage the principal offender to commit the crime charged. So that's the abetting, that he did something - Mr Farmer did something or said something and that which he did or said he did with the intention of encouraging Mr Randall to commit rape. And third element, as Mr Dunn told you, that did in fact encourage Mr Randall to commit the rape and at the time Mr Farmer gave the encouragement he knew what facts had to be proved to establish rape, namely penetration without the consent of [the complainant]."

35 There was no reason for any instruction about an honest and reasonable mistake on the part of Farmer that the complainant may have been consenting to intercourse with Randall. The jury were told that before they could convict Farmer, they had to be satisfied that Randall had committed the crime of rape (thereby negativing any honest and reasonable mistake on his behalf) and that Farmer knew the facts which had to be proved to establish that Randall had committed that crime, namely that Randall was going to engage in, or was engaged in, sexual intercourse with the complainant without her consent. In the circumstances it would have been wrong to give a direction that if Farmer honestly believed the complainant was consenting, then, provided that belief was held on reasonable grounds, the case against him would not be made out. No matter how unreasonable his grounds might have been, the absence of a belief that the complainant was not consenting would have entitled him to an acquittal because the Crown would have failed to establish that he "knew that Randall was going to engage in or was engaged in sexual intercourse with the complainant without her consent". A state of satisfaction on the part of the jury that he did know these facts necessarily negated the possibility of the existence of a state of mind on the part of Farmer that the complainant was consenting to intercourse with Randall (cf Roughley v R [1995] TASSC 14; (1995) 5 Tas R 8 at 66 per Zeeman J). A direction of the kind sought in ground 5 was inappropriate and any similar direction which omitted reference to the reasonableness of Farmer's belief quite unnecessary in the circumstances.

Grounds 3 and 4 - Misdirections as to aiding and abetting

36 Particular (b) of ground 3, namely that the appellant could be convicted as an aider/abettor by failing to act when the sexual assault took place, was abandoned. Reliance was placed only on the allegedly erroneous instruction that he could be convicted on the basis that he permitted the manager's office to be used for the sexual act. Ground 4 complains that the jury were wrongly told that the appellant's presence could amount to aiding and abetting.

37 I have set out in para34 above the commencement of the learned trial judge's instructions to the jury on the elements of the crime of aiding and abetting Randall to commit rape, pausing to consider whether any direction as to an honest and reasonable but mistaken belief by Farmer in the consent of the complainant was necessary. His Honour's charge then continued as follows:

"So that's what aiding and abetting is and that's what the Crown case is against Mr Farmer, that he aided and/or abetted Mr Randall to commit the crime of rape because he deliberately did something intending to give assistance or intending to encourage Mr Randall to commit rape and he knew all the facts that go to make up the crime of rape, that's pretty obvious I would have thought, but that's a matter for you, and in the case of abetting he did in fact - it had the desired result, it did encourage Mr Randall to commit rape.

So let me conclude that by saying on the evidence that we have in this case what acts, what acts could have amounted to aiding? Whether they do or not is entirely up to you. My task as trial judge is to tell you what evidence there is of acts which could constitute aiding Mr Randall to commit rape. You might say, 'Oh we didn't accept that evidence anyway', so be it. I don't know what you're going to accept and I will direct you as a matter of law that if you're satisfied beyond reasonable doubt that Mr Farmer committed the crime charged against him, namely administering a drug, that is an act obviously which is capable of aiding the commission of rape by Mr Randall, and there is evidence of this case, it seems to me, from which you could find, but whether you do or not is entirely up to you, that Mr Farmer permitted the office in the Playroom nightclub, of which he was the principal owner, to be used for the purpose of Mr Randall committing rape. That is doing something that's capable of being an act of aiding. In the robbery scene providing tools and lending a car or something like that could be an act capable of amounting to aiding.

I do stress, ladies and gentlemen, it's first of all for you to decide on the evidence whether he did that at all, whether he permitted the office, whether that was the situation or not, and then even if you do decide that you've got to go on and say, `Well does that amount to aiding, was it something that he deliberately and wilfully did intending to give assistance, make provision, give assistance for Mr Randall to commit the crime of rape'. So they are the two acts that on the evidence are capable of amounting to aiding, and I stress whether they do or not is entirely up to you. What acts on the evidence can amount to abetting or encouraging? Once again permitting the office to be used for the purpose of Mr Randall having sexual intercourse with the complainant, committing the crime of rape I should have said on the complainant, and the evidence to which Mr Dunn referred of Mr Lockwood when he said that Mr Randall was there and he was laughing and there was - I'll refer to it myself - but laughing and there was some egging on there in the room.

Now I do want to explain this last principle to you. A person doesn't ordinarily aid or abet the commission of a crime if they're just a passive bystander. So if you're walking away from here through the park and you see some youths bashing up an old lady and you stand and just watch there, just stand and watch them, that mere presence alone can never in law amount to aiding and abetting, but using a less colourful illustration than Mr Dunn's, if one of you says, 'Give it to her', then you would be abetting or hounding on or encouraging because you're doing something. Or you might give some gesture of encouragement or something like that, but if you just stood there mute then you commit no act of aiding or no act abetting, and that's why Mr Dunn referred to so much of the evidence and pointed to you that nobody said Mr Farmer did anything or said anything to you, and that was because he knows the law is that mere presence alone when a crime is being committed does not constitute and cannot constitute either aiding or abetting. But the Crown put to you that permitting the office in the building with which he was the seventy percent owner and his - or the desk in there to be used for the purpose of Mr Randall having intercourse was something that amounted to both aiding and abetting, and of course the laughing is capable, whether you think it was I don't know, Mr Dunn put to you, 'Well if you just laugh at something going by then - well that's not offering any encouragement to anyone', but I'm sure, ladies and gentlemen, that you'll understand there's laughter and there's laughter and it depends upon the circumstances of how it's done. That's what we have juries for, to assess whether the laughter was just a joke, as I understand Mr Dunn was putting to you, or whether it was more than that and it constituted a wilful offer of encouragement to Mr Randall to commit rape with the intention of encouraging him and it had the desired effect of giving him encouragement."

38 Counsel for Farmer at the trial asked for a redirection in respect of the question of Farmer permitting the office to be used, pointing out that both Randall and Davies were part owners of the Playroom, that Randall was its manager and that the office was that of the manager and hence Randall's office. The learned trial judge acceded to the request and instructed the jury in these terms:

"Now the other matter that Counsel suggested to me that I might mention is this question of aiding and abetting, in the case of Mr Farmer, on the charge of rape; namely, the charge that he committed rape by aiding and/or abetting Mr Randall to commit rape. And I said to you, that it's not for me to say what acts constitute aiding or abetting; it's for me to point to the evidence and say, 'these acts - if you accept this evidence, this is evidence that's capable of being construed by you as an act of aiding and/or abetting'. Whether you do so or not is up to you. And I said, as you'll no doubt remember, that the evidence of Mr Farmer permitting the office to be used could be construed by you as an act of aiding or abetting, or both really, in the same way, in a more graphic sort of way, if someone permits their car to be used to commit a crime, or provides them with equipment, or something like that. That's the general concept.

But Counsel quite rightly pointed out to me that you have to - I should say to you, you have to have regard to all the evidence of all the circumstances to decide whether you're satisfied that it was an act of aiding, and in that context, although as I said to you Mr Farmer, the evidence was, owned seventy per cent of the nightclub, you should also bear in mind, that at the time he wasn't the sole owner, and the other two owners, Scott Davies and the accused, Mr Randall, were also in the room. And I said that I would certainly point that out to you because it's a factor you need to take into account.

The evidence is a bit unclear about Mr Davies. You'll remember he said he sold his share to Mr Farmer in November, and I must say it wasn't clear to me whether he did that before this night, or after this night, or whether he'd agreed to do it but hadn't actually got the money until afterwards, or something like that. But you just have regard to all the circumstances as surrounding the events of that night in the room, and you ask yourself, having regard to all that what happened. And then, if you're satisfied beyond reasonable doubt that Mr Randall committed the crime of rape, you can go on and consider whether Mr Farmer aided and/or abetted him in the way in which I said."

39 As the jury acquitted Farmer of the charge of procuring by administering drugs, it is clear that they could not have used evidence relating to that issue in respect of this charge and must have based their verdict on Farmer permitting the office to be used.

40 The concepts of aiding and of abetting, as the learned trial judge acknowledged, can overlap. In respect of aiding, the Criminal Code, s3, requires that there be an act done or an omission made for the purpose of enabling or aiding the principal offender to commit the crime. Abetting requires not merely wilful encouragement by the abettor, but the communication of that encouragement to the offender with the consequence that the offender is in fact encouraged. In either case, some active step must be taken with intent to bring about the commission of the crime by the principal offender. In most cases of aiding, some physical act or deliberate omission can be readily identified and in many cases of abetting, the communication of encouragement may take an identifiable physical form such as gestures or spoken words. In R v Coney & Ors (1882) 8 QBD 534, Hawkins J said at 557 - 558:

"In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, on non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted."

Mere presence, even if it has the effect of encouraging the principal offender to commit the crime and is accompanied on the part of the accomplice by an intention to render assistance, if required, is not sufficient (R v Jones & Mirrless (1977) 65 Cr App R 250 at 252; Roughley v R (supra) at 12).

41 In the present case, more than mere presence was proved against Farmer. He was present in the office of an establishment of which he was the principal shareholder when a young woman, incapable of making a rational decision on the question of whether or not to give her consent to intercourse with a man who knew her only as a patron of the Playroom and at some stage an applicant for a job there, got into a state of nakedness, lay prone on a desk in the presence of several men and was sexually penetrated by his junior partner who continued to engage in sexual intercourse for up to approximately two minutes before withdrawing. The appellant, Farmer, notwithstanding his status as the senior partner or shareholder and his obligations to one of the patrons of his establishment who was badly affected by alcohol or drugs, made no move to stop Randall's activity or to voice a protest at its performance or at the entry through the open doorway of a large number of leering males who, if they did not see that act, observed the complainant in her nakedness and virtually comatose state. The jury were reminded that Farmer was not the sole owner of the premises and that both Randall and Davies, who were present in the office, were co-owners. They were told that they should take those matters, together with evidence of all the circumstances, into account in considering whether Farmer took active steps to encourage him by permitting the use of the room, as the Crown particularised his acts of aiding and abetting. In my opinion, the learned trial judge's instructions to the jury that Farmer could be convicted of the crime of rape on the basis that he permitted the manager's office to be used for the sexual act, were not erroneous. Furthermore, his directions on the issue of the appellant's presence made it clear that more than mere presence was required and were unexceptionable.

42 While the paucity of evidence of verbal encouragement by Farmer required that the jury rely upon the surrounding circumstances to draw the inference of active encouragement, it is not the case that the verdict was against the evidence and the weight of it. Apart from the evidence of Touber and Davies, which conflicted with the preponderance of the Crown case, there was no evidence to contradict the finding that Randall raped the complainant and that Farmer aided and/or abetted him to do so. Neither appellant gave evidence and there was no evidence of any discouragement by Farmer of Randall's activities. The complaint is better expressed in ground 2, namely that the verdict in all the circumstances was unsafe and unsatisfactory. I see no basis for concluding that it was.

43 The principles applicable to this ground were set out in Morris v R [1987] HCA 50; (1987) 163 CLR 454 by Mason CJ at 461 - 462, where he said:

"... it is now well settled that a verdict may be set aside as unsafe and unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, at pp 660, 686; Chamberlain v The Queen [No 2] (1984) 153 CLR, at pp 532, 604 et seq, 618 et seq. In Chamberlain Gibbs CJ and I, after noting that it was unnecessary to consider whether the jurisdiction exercised by the Court of Criminal Appeal in Australia is precisely the same as that exercised by the Court of Criminal Appeal in England, said (at p 534):

'... the proper test to be applied in Australia is, as Dawson J said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused. To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not in a particular case, it is not unimportant to observe the distinction - the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt.'"

In M v R [1994] HCA 63; (1994) 181 CLR 487, the following dictum appears in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (See Whitehorn v The Queen (1983) 152 CLR at 686; Chamberlain v The Queen (No 2) (1984) 153 CLR at 532; Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 504-505, 511) . But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (at 493)

44 In addition to the circumstances already outlined concerning the absence of protests by Farmer at the use to which the office was put while the complainant was in his presence, there was evidence that he was in close proximity to her, being seated within a metre and a half from her as she lay naked on the desk while the act of intercourse occurred. Davies said that there were several men in the room "maybe 10 to 12" and that when the act took place, there were comments in the room, but he could not recall their nature. He said there was a "blokey" atmosphere in the room. Touber said that when he entered the office, there were a lot of people milling around the open door and that when he navigated his way past them, he saw Randall having sexual intercourse with the complainant and Farmer towards the back of the room. He said he heard murmurings from the crowd and that it was a "very embarrassing low rent situation", but he heard no one encouraging Randall. Lockwood said that Randall had intercourse for a couple of minutes. This exchange then occurred:

"And was there anything said by anyone in the room while that was going on? ... The only thing I can recall in the room was, I heard Shane Farmer laughing, like everyone was sort of egging him on a little bit.

Right. Can you tell us what - did Shane Farmer say anything? ... All I can probably recall that he could have said was, "Come on", a bit of a laugh, apart from that, no.

Okay. So who was he saying that to? ... Craig Randall or just laughing in general.

All right. Did you hear anyone urge him on? ... Only probably Shane Farmer."

45 In my opinion, not only was there evidence to sustain a verdict, but on a consideration of the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Farmer was guilty. I would dismiss the appeal.

46 I have had the advantage of perusing the reasons for judgment prepared by Evans J in respect of this appeal. I agree with them and am of the opinion that that appeal should also be dismissed.

47 I agree with the reasons for judgment prepared by Cox CJ in respect of each appellant's appeal against his conviction. I would dismiss each of these appeals.

48 Craig Randall appeals against the sentence imposed on him of five years' imprisonment with a non-parole period of three years. His grounds of appeal are:

"(i) that the sentence was manifestly excessive; and

(ii) the learned judge erred in failing to give weight or proper weight to the delay in prosecuting the appellant which was not due to the act, neglect or fault of the appellant."

49 Mr Randall and Mr Farmer were sentenced in the course of a joint sentencing hearing. The learned judge's comments on passing sentence include the following:

"For the purpose of imposing sentence, I find that on the evening of Sunday 5, November 1995, the complainant, then aged 18 years, went to a nightclub in Launceston called the Playroom. You, Shane (Farmer), owned at least 70% of that club while you, Craig Randall, owned 15% and were its manager. I find that the complainant arrived about 10pm. She had had some drink before she got there, but was not affected by alcohol. I find that while she was in the Club she drank more liquor, but the evidence does not permit a finding to be made with respect to how much she consumed. Further, the evidence is such that no finding can be made with respect to what the complainant did ... between shortly after 10pm and 3am the following morning, except that at some stage during that period she was in the company of the two of you, and that you, Shane Farmer, bought her alcohol to drink. I find that at about 3am she was in the office with the two of you and the witnesses Touber and Davies. I further find that by reason of excess alcohol consumption, or by reason of involuntary drug consumption, she was at that stage stupefied and unable to stand or walk or sit up properly. She was, as the jury found, so stupefied that she was incapable of giving any lawful consent to sexual intercourse. She was, as one of the witnesses said, in a state of near oblivion.

I find that at least you, Randall, determined to take some kind of advantage of the complainant while she was unable to resist, and that you, or someone else in the room, took off her clothes and laid her naked on a desk in the office. I find that at various times while she was naked in the office the two of you encouraged other males who were on the premises, to come into the office and see this girl. I find that both of you were well aware that this girl was incapable of giving a consent to intercourse and that she was virtually unaware of what was happening to her. While she was in that state you, Craig Randall, dropped your trousers and had sexual intercourse with her in front of a number of others.

For the purpose of imposing sentence on you, Shane Farmer, I find that you were present in the office while this was going on. I find that you aided and encouraged the commission of the crime of rape by Craig Randall by permitting the office to be used for this shameful spectacle, and by laughing while others in the room were giving encouragement to Craig Randall to continue his despicable behaviour. Although you did not touch the young woman, you were the principal owner of the club, and I find, had it in your power to stop the occurrence of the criminal conduct, but instead of doing that, you facilitated it and encouraged it.

This was a wicked and disgraceful crime perpetrated on a young woman who was powerless to defend herself. Your criminal conduct, committed in front of other leering males, was a gross violation of this woman's dignity and integrity. By your sanctimonious lies in answer to police questions, Craig Randall, you falsely sought to paint the complainant as a person of low moral character. She must have been extremely humiliated as she gradually became aware of what had happened to her. She became the object of gossip. Your criminal conduct destroyed her reputation, for in the following weeks and months, others in her community called her a slut and other derogatory names. All of this is referred to in the victim impact statement that I have been given. That statements concludes in part by saying this:

'These crimes committed against her have taken away the best of her early adult years where she continues to live with the loss of not knowing how life could have been life without such a traumatic event taking place. In my opinion she has sustained a highly significant level of psychological, emotional and social injuries.'

So the commission of this crime has had a devastating effect on the complainant, although I stress that I am clearly mindful of the fact that the psychological deficits she has suffered are probably not all caused by the crime of which you have been convicted. The complainant is to be admired for her courage in coming forward as she did, and giving evidence in the face of cross-examination that at times, appeared to me designed to continue the process of humiliating her.

Neither of you are, of course, to be punished for entering pleas of not guilty and defending the charge, but quite clearly I see no sign of remorse to mitigate against imposition of penalty. There are mitigating factors, however, as have been put to me. You, Mr Farmer, are forty eight. You, Mr Randall, are thirty seven years of age and neither of you have any relevant prior convictions and you are therefore both to be regarded as otherwise of good character. I have taken into account the matters that have been urged upon me by your counsel this morning, and in particular, that both of you will suffer serious financial detriments by reason of this conviction. I also take into account the delay in the police prosecution being brought to a conclusion insofar as during that time each of you have taken steps to rehabilitate yourself and insofar as that period of time has caused anxiety and stress pending the outcome of the investigation.

In all these circumstances in the case of each of you there will be a conviction for rape and in your case, Craig Randall, there will be a sentence of 5 years' imprisonment to date from 12 December 2003. I fix a non-parole period of 3 years."

50 In support of the contention that the sentence imposed on Mr Randall was manifestly excessive, his counsel submitted that the learned judge failed to give sufficient weight to the following matters:

* the spontaneous and opportunistic nature of the crime;

* the absence of violence in addition to the act of rape was perpetrated upon the complainant;

* Mr Randall's lack of any relevant criminal history;

* significant delays in the instigation of and the hearing of the prosecution;

* that Mr Randall and his family have been ostracised for the crime; and

* that there is a low risk of Mr Randall re-offending.

51 It is plain from the learned judge's description of the events on the night in question that he recognised that Mr Randall's involvement was opportunistic rather than premeditated and that the crime involved no violence in addition to the act of rape. Relevant as these matters were, their significance was greatly outweighed by a most reprehensible aspect of the crime, that is, its perpetration in the presence of others and in circumstances that indicate that it was considered to be for their entertainment. The learned judge appropriately characterised what occurred as a shameful spectacle, despicable, and a gross violation of the complainant's dignity and integrity. Her plight was widely known. Male workers at the Club that night filed their timesheets in the office where the rape occurred. For periods prior to and subsequent to the rape, the comatosed complainant lay naked on a table in the office. Mr Randall told the police officers who interviewed him about the events of that night that he estimated the number of male workers at the Club at nearly 50; the number was elevated, as about 30 band members were working that night. Mr Randall, in substance, said that the male workers would have observed the naked complainant when they entered the office. He also said that whilst the six female workers at the Club that night would not have delivered their timesheets to the office, there were so many people going in and out of the office that the female workers would have been made aware of the complainant's circumstances.

52 A consequence of the sexual degradation of the complainant in such an open way was that she became the subject of vicious and damaging rumours. As she became aware of the circumstances of her abuse, she was confronted with the appalling realisation that although many men knew of her plight, none had done anything to help her, and some had even encouraged Mr Randall to take advantage of her state and rape her. This realisation has seriously damaged her faith in others and her capacity to trust others. Since the rape, the complainant has received counselling on a regular basis from a sexual assault counselling service. The learned judge was provided with a report from a counsellor that records the complainant's reaction to the rape as including fear, depression, panic attacks, social isolation, low self-esteem and suicidal ideation. In the opinion of the counsellor, the complainant will continue to need regular treatment in order to deal with her daily life.

53 The open and derisory circumstances in which the complainant was abused have contributed significantly to the adverse consequences she has suffered. Bearing in mind this aspect of the crime, there is no reason for concluding that the learned judge gave too little weight to the opportunistic nature of the crime and the low level of violence involved in its commission.

54 When referring to mitigatory factors, the learned judge expressly mentioned Mr Randall's lack of any relevant prior convictions and his good character. There is no basis for the contention that insufficient weight was given to these matters. The nature of the offence for which Mr Randall was being sentenced was such that it was open to the learned judge to conclude that Mr Randall's otherwise good character was only a small factor to be weighed in the sentencing process; Ryan v R (2001) 206 CLR 267 at 278 [33] and 300 [112].

55 Another mitigatory factor, expressly adverted to by the learned judge, was delay in relation to the prosecution. The delay of about eight years, between the commission of the crime in November 1995 and the trial in December 2003, was plainly significant. For sentencing purposes, Mr Randall benefited from this delay insofar as it enabled him to put evidence of his good conduct and achievements subsequent to his commission of the crime before the sentencing judge. This evidence included details of his impressive accomplishments in the workforce, particularly in Western Australia, during this period. As recognised by the learned judge, anxiety and stress caused to a defendant during a period of delay is a mitigatory factor. In an appropriate case it may be a particularly important factor; Prehn v R (2003) TASSC 55 [21]. Here, whilst the period of eight years that passed between the crime and the trial is significant, nothing was put before the learned judge to suggest that during the first six years of this period Mr Randall suffered unusually from the delay. Within three weeks of his commission of the crime, Mr Randall was interviewed by the police and denied having sexual intercourse with the complainant. Thereafter, the police file was lost and the matter lay dormant until the investigation was revived in 2001. During this period, it is reasonable to assume that the possibility of a renewed investigation was a concern to Mr Randall. Whilst Mr Randall's counsel put to the learned judge that Mr Randall had been in a state of suspense about the matter, the focus of counsel's submission was the delay of about two years between the filing of the complaint and the trial in December 2003. Counsel put to the learned judge that for about a year during this period, Mr Randall frequently had to drive hundreds of kilometres in order to comply with the conditions of his bail; and that, in consequence of the conditions of his bail, Mr Randall had been unable to participate in training courses and attend conferences held out of the country. Counsel also said that when Mr Randall was extradited from Western Australia to Tasmania, his employment had been terminated and this had a serious impact on his financial circumstances. The period of two years that elapsed between the charging of Mr Randall and his trial was not, in the circumstances of a trial such as his, which involved three accused, an inordinate period of delay. The hardship suffered by Mr Randall as a result of the conditions of his bail and the termination of his employment was not precipitated by delay, it was a not unusual consequence of Mr Randall being charged with a serious offence. The hardship, however, would have been aggravated by delay. There is no reason to consider that the matters put to the learned judge referable to delay were not given due weight. This was not a case where the delay was a powerful mitigatory factor.

56 At the sentencing hearing, Mr Randall's counsel told the learned judge that Mr Randall and his family had been ostracised and Mr Randall was concerned about the disgrace he had brought upon himself and his family. Mr Randall's counsel also submitted to the learned judge that Mr Randall's conduct was an aberration and it was most unlikely that he would re-offend. In the course of the appeal, Mr Randall's counsel submitted that the learned judge had given too little weight to these matters. There is no reason to doubt that the learned judge gave due weight to these matters, as well as the many other matters referred to in the course of the sentencing hearing. The learned judge's imposition of a non-parole period of three years is a clear indication that he considered that Mr Randall was unlikely to re-offend.

57 Professor Warner's text, Sentencing in Tasmania, 2nd ed, the Federation Press, 2002, provides a convenient basis for the consideration of the contention that the sentence was manifestly excessive. The sentences imposed in Tasmania for rape are dealt with in pars11.401 - 11.413. Professor Warner's analysis of the sentences imposed since 1978 for a single count of rape demonstrate that a sentence of five years' imprisonment is within range. When considering past sentences, it must be borne in mind that many of them involve an offender who has pleaded guilty and thereby saved the victim from the trauma of giving evidence and provided the victim with the satisfaction of knowing that the offender acknowledged the wrong that had been done. A plea of guilty which achieves these ends is an important mitigatory factor which may warrant a meaningful reduction in the sentence that would otherwise have been imposed. This mitigatory factor was not available to Mr Randall. The sentence imposed on him was not manifestly excessive. His appeal should be dismissed.

58 I agree that each of these appeals should be dismissed. I agree with the reasons for judgment prepared by Cox CJ and Evans J. There is a little that I would like to add in relation to ground 3(a) of Farmer's notice of appeal in respect of his conviction, which concerns the proposition that he could be found guilty of the crime of rape as an abettor on the basis that he permitted the manager's office to be used for the sexual act. In my view the direction of the learned trial judge as to this point was consistent with a number of reported cases.

59 In Du Cros v Lambourne [1907] 1 KB 40, one version of the facts was that the appellant, the owner of a motor car, was sitting next to the driver, who drove it at a speed dangerous to the public. Lord Alverstone CJ, with whom Ridley J agreed, said at 45 - 46:

"The case states that the appellant must have known that the speed of the car was dangerous; that if Miss Godwin was driving, she was doing so with the consent and approval of the appellant, who was in control of the car, and that he could, and ought to, have prevented her from driving at this excessive and dangerous speed, but that he allowed her to do so and did not interfere in any way. I will not attempt to lay down any general rule or principle, but having regard to these findings of fact, it is, in my opinion, impossible to say that there was in this case no evidence of aiding and abetting on the part of the appellant."

"I am of the same opinion. I think that there was ample evidence on which the appellant could be convicted of aiding and abetting Miss Godwin in driving the car at a speed dangerous to the public. The appellant was the owner of the car and in control of it, and he was therefore the person to say who should drive it. The case finds that he allowed (I emphasize that) Miss Godwin to do so; that he knew that the speed was dangerous, and that he could and ought to have prevented it."

61 In Dennis v Pight (1968) 11 FLR 458, the appellant had been convicted of aiding and abetting the driving of a motor vehicle in a manner dangerous to persons using a public street. He had been a passenger. He and the driver jointly owned the vehicle. The appeal, which was by way of a hearing de novo, succeeded because of findings of fact made by Smithers J. However his Honour said the following at 466 - 467:

"It was urged on behalf of the appellant that, the driver being part owner of the car, the appellant could not be said to have the exclusive right of an individual owner to determine who should drive the vehicle and how it should be driven. This is of course true. But the question is whether or not the appellant associated himself in the relevant sense with the driving offence of his co-owner. This depends on the inferences to be drawn from all the evidence. Evidence of ownership is relevant because it connotes capacity to control. Evidence of a shared ownership is evidence of shared capacity to control. Its significance in any particular case would vary. Some co-owners might be expected to have very little real influence in the control of the vehicle. In this case I have proceeded on the basis that the circumstances of the relationship between the parties was such that the influence of the appellant in the control of the vehicle, arising in part from his interest as co-owner, would have been in substance the same as if he had been an individual owner. In any particular case where aiding and abetting is alleged all the circumstances are relevant, but in the end adequate knowledge of the relevant circumstances and a real intention to participate in the offence to allow it must be proved."

62 Those two cases, amongst others, were cited with approval by Crawford J, with whom Cosgrove J agreed, in Smith v R, Court of Criminal Appeal, 4/1979. The appellant in that case had been convicted of rape as an abettor. The principal offender was her boyfriend. He had raped her daughter at her home in her bed when she was also in the bed. At 34, Crawford J said the following:

"The passages from the cases which I have cited, including the 'motor vehicle' cases, establish that, if a person who is present when a crime is about to be committed and is committed, who believes that the commission of the crime is about to be committed, and who might be expected to protest but does not protest , may, in circumstances such as those of this case, be properly found to have abetted the principal offender by encouragement."

63 In the light of these cases, I think it was open to the jury to find that Farmer had abetted Randall in committing the crime of rape by allowing him to use the manager's office as his chosen venue for the rape.