REGINA v Michael WHYTE

LEGISLATION CITED: Crimes Act 1900: s86(2)(b), s61L Evidence Act 1995: s136, s76, s78, s60, s66

Gipp v The Queen (1998) 194 CLR 106 Knight v The Queen (1992) 175 CLR 495 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 CASES CITED: Papakosmas v The Queen (1999) 196 CLR 297 R v Drollett [2005] NSWCCA 356 R v Habib [2005] NSWCCA 223 Sheherd v The Queen (1990) 70 CLR 573 Smith v The Queen (2001) 206 CLR 650

PARTIES: Michael Whyte (Applicant) Regina (Respondent)

COUNSEL: H Dhanji (Applicant) V Lydiard (Respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (Applicant) S Kavanagh - Solicitor for NSW Director of Public Prosecutions (Respondent

• 21 - IN THE COURT OF CRIMINAL APPEAL 2005/2222

SPIGELMAN CJ SIMPSON J BARR J

Friday 24 March 2006 Michael WHYTE v REGINA Judgment 1 SPIGELMAN CJ: On 22 April 2004 the Appellant was convicted by a jury on a charge of detaining a victim, without her consent, with intent to obtain an advantage, namely to have sexual intercourse with her and at the time of the detention actual bodily harm was occasioned to the victim. This was an offence under s86(2)(b) of the Crimes Act 1900. 2 At the same trial the Appellant was acquitted of the charge that, during the same course of events, he assaulted the victim and at the time of assault committed an act of indecency on her. This was an offence under s61L of the Crimes Act 1900. The act of indecency, the subject of the second count, was the touching of the victim's breast by the Appellant during the course of the events to which I will refer in more detail below. One of the options available to the jury was to find that the touching was not intentional but simply an accidental touching in the course of the struggle. No issue of inconsistency of verdicts has been raised. 3 It is of central significance to this appeal that the Crown case was limited by the provision of particulars to the effect that the act of sexual intercourse, being the advantage said to be the subject of the intent to detain, was identified as penile/vaginal intercourse or penile/anal intercourse. It is not apparent why the Crown limited its case in this way, but it did.

The Course of Events 4 The background facts were usefully summarised by his Honour in the course of his remarks on sentence as follows: "That on 30 December 2003 you went to a café in an arcade on Main Street, Blacktown. That café, which was called 'Chantelle's Café', was owned by [the complainant's] parents. You had at that time a packet of condoms in your pocket and you sat down at a table at the café. [The complainant], who is a young adult woman, was working in the café and you saw her there. You saw and heard her say to her mother that she needed to go to the toilet and collect the relevant key to enable her to have access to the toilet. You then saw her leave the café and you followed her up to the first floor of the arcade where the toilet was situated. [The complainant] went into the hallway that led from the upper floor of the arcade to the toilet and having used the toilet there she heard a noise caused by your banging on the door to the toilet attempting to gain entry. You waited for her outside the toilet hallway door and when she opened the door leading from the toilet into the arcade you grabbed her by the upper arms and pushed her backwards into that hallway. She struggled to get free of you and commenced screaming. As a result of your movement and her struggle you ended up behind her. You then grabbed her by her ponytail and pulled her head backwards forcing her to stumble backwards and thereby retaining and detaining her in the hallway. Whilst you were behind [the complainant] you also grabbed her body. … that the jury's verdict should be taken to represent that they were not satisfied that your touching of [the complainant's] breast, which I am satisfied did in fact occur, was in any way intentional by you, but rather that it was simply an accidental touching occasioned in the struggle that was going on between the two of you. You then placed your hand over [the complainant's] mouth, but she was able to break free by pushing against the walls of the toilet hallway and she managed to escape into the arcade and by reason of her screaming to attract assistance. As a result of the detention that she sustained, that is by being pulled back into the hallway after having opened the door leading from the hallway into the arcade, she suffered soreness to the neck, tenderness to her spine and a restricted range of movement in her arms which the jury held, and which I am satisfied, did constitute actual bodily harm. I am also satisfied of course, particularly having regard to the situation of where the detention took place and the fact that you had the condoms in your pocket, that your attempt to detain [the complainant] was with the necessary intention, that is of having sexual intercourse with her, that [the complainant] at no time consented to the detention and that you knew full well that she was not consenting to such detention." 5 These were findings of fact that his Honour needed to make for the purposes of sentencing the Appellant. Nevertheless, this outline of the course of events is accurate and sufficient for present purposes. Some issues of a factual character arise with respect to particular grounds of appeal and I will refer to them in their context.

Ground 1: Unreasonable Verdict 6 Ground 1 is that the verdict of the jury is unreasonable and cannot be supported on the evidence. The approach to the determination of a ground of appeal of this character has been authoritatively stated by the High Court in M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606, as recently summarised by McClellan CJ at CL in R v Habib [2005] NSWCCA 223 at [48]-[56]. 7 The Appellant's submissions on this ground of appeal focused on the particulars given of the sexual intercourse. The Crown's case on intent was a circumstantial case. The Appellant contended that there was no evidential basis on which a jury could conclude that such sexual intent as there may have been was of the particular character to which the Crown confined its case, i.e. either penile/vaginal intercourse or penile/anal intercourse. 8 The Appellant relied on the principle that in a circumstantial case it was for the Crown to exclude any reasonable hypothesis consistent with innocence. He submitted that such reasonable hypotheses existed. Perhaps the Appellant had no sexual intent. In any event, the Appellant may have intended to commit some other kind of sexual conduct such as an act of indecency or an indecent assault or fellatio or cunnilingus. The Appellant relied on Knight v The Queen (1992) 175 CLR 495 at 503-505. 9 In his outline of the essential elements of the offence under s86(2)(b) the trial judge, Knight DCJ, referred to the element of detention to obtain an advantage as the "fourth element". His Honour directed the jury, in terms which I will set out more fully below, but indicating to the jury that this element was a matter to be inferred from the circumstances. 10 His Honour summarised the Crown case about the relevant circumstances on which the Crown relied as follows: "First of all, that the accused had been in the arcade on other occasions. Second, the accused and [the complainant] were sitting in the café adjacent to each other. Third, [the complainant] asked in a loud voice for the toilet key which she was given and he said that you would therefore draw the conclusion that the accused followed [the complainant] up to the first floor of the arcade. That there was no one in the arcade on the upper level except perhaps a receptionist on the - although Mr Goffett, in fact, says that he was there and we know that there were people inside in the various offices there. Next, he says that [the complainant] heard - she opened the door and she heard a banging and then a subsequent second banging on a different door or different place. The Crown pointed out that it was a secluded location despite there being offices there. It's way away from the street et cetera. He pointed out that the sign next to the door refers to surveillance but, in fact, there were no cameras in the arcade and a person could readily see that there were none. He then said once the door was open, the accused pushed in and indecently assaulted [the complainant] after she had struggled and he had detained her. He continued to detain her and to try and stifle her screaming. He then pointed out that he had a packet of condoms and the accused had said in his record of interview that he was not in a relationship and that the accused said that the condoms just happened to be there and he did not even know they were there. He pointed out the condoms have a benefit in the offence in the sense that if a condom is used it enables an offender who has sexual intercourse to hide the offender's identity. Of course, there are many other reasons why people might use condoms." 11 His Honour identified the onus upon the Crown in the context of a circumstantial case in a manner to which no exception has been taken on this appeal. His Honour said: "Now in this case the Crown alleges that the accused Michael Whyte detained [the complainant] with the intention of having sexual intercourse with her. Now again I point out to you that this test is subjective it is not objective. It is the state of mind of the accused Michael Whyte that needs to be considered. The Crown needs to prove to you, beyond reasonable doubt, that Mr Whyte's intention in relation to detaining [the complainant] was to have sexual intercourse with her. Now how does the Crown go about doing that? Because there was nothing said by - there is no evidence of Mr Whyte saying anything. How does the Crown do it. Well the Crown submits to you that you would infer that from all the circumstances surrounding what allegedly occurred. Now let me say this to you and I want to emphasis it. In the context of a criminal trial you can only draw an inference adverse to the accused if it is the only rational inference that is available in all the circumstances. So in other words the Crown has to prove to you that the only rational inference in all the circumstances of this case was that Mr Whyte was detaining this woman in order to have sexual intercourse with her. Now the Crown submits to you that there are various facts which would lead you to come to that conclusion. Those facts being that the Crown asks you to find these beyond reasonable doubt, that the accused and [the complainant] were sitting in the café, one on each side of the glass door. That [the complainant] asked for the keys to the toilet, from her mother, did so loudly, the accused heard that. She then got the keys and went upstairs to go to the lavatory. That the accused followed her up there. That the accused banged on the door. That when she came, ultimately after she had finished using the conveniences, she came and opened the door, that he then pushed her or grabbed her by the upper arms, pushed her back into the corridor, in doing so forced the door open, that she was screaming, she struggled, she managed to get in front of him. He pulled her pony tail back and then put his hand on her breast. She was still screaming, he moved it up onto her mouth and she managed to escape and run away, the Crown says and subsequently there was found on the man a packed of two condoms. The Crown says to you, his submission is that if you find all those facts that you will be satisfied that his intention was to have sexual intercourse with this young woman on this particular day." 12 His Honour put to the jury the defence case that even if they found, contrary to the submissions of the accused that the relevant events had happened, they would not be satisfied beyond reasonable doubt about the element of intention. His Honour said with respect to the accused's case: "In other words that you would not be satisfied beyond reasonable doubt that his intention was to have sexual intercourse with her, because the submission is made there are other rational inferences that could be drawn. He may have just simply wished to grope her. He may have wished to simply fondle her or whatever. But the submission that is in effect put to you or substance of it is, that you have to be satisfied that the accused had the intent to have sexual intercourse with her and in order to come to that conclusion it has to be by way of inference from the facts as you find them and you must not draw an inference adverse to the accused unless it is the only reasonable, rational inference that is available in all the circumstances. The accused puts to you that it is not the only reasonable, rational inference that is available even if you found all those circumstances existed." 13 His Honour directed the jury in express terms that: "… sexual intercourse, for the purposes of this trial and this trial only, means only penis in the vagina or penis in the anus." 14 The Appellant submitted that the only factor capable of proving an intent of the particularised character was the presence of condoms. The Appellant submitted that the carrying of condoms is commonplace and there is no evidence that would support an inference that they were intended for immediate use. The condoms could only elevate a general sexual intent to an intent to have penile/vaginal or penile/anal intercourse if the jury was satisfied beyond reasonable doubt that the condoms were present with the intent that they be used for that purpose with the complainant. The Appellant submitted that any such proposition was unsustainable and, accordingly, that the verdict of the jury was unreasonable and could not be supported having regard to the evidence. 15 In my opinion, this was a quintessential jury issue. The jury was able to draw inferences as to the requisite intention, being of the character particularised, on the basis of the evidence before it. A circumstantial case is necessarily of a character when a process of inference is required. The presence of the condoms indicates that penile penetration was a mode of sexual gratification in which the Appellant did indulge. In all of the circumstances before the jury it was open to the jury to find, and to find beyond reasonable doubt, that this was what the Appellant intended to do on this particular occasion. 16 I do not accept the proposition that the circumstantial case on intention of the character conducted here can be approached as if the jury had to consider a particular range of facts with respect to the intent being one of "sexual gratification" and thereafter identify facts that could be said to particularise the element of "sexual gratification" to the specific form of penile intercourse. The jury was entitled to take into account the whole range of the circumstances, including the presence of the condoms, with a view to determining the intention of the Appellant. These facts included the way he followed the Appellant to a secluded location and the manner in which he assaulted her. These were all matters to be taken into account with respect to the element of intention as particularised. 17 It is entirely inappropriate in a circumstantial case, which necessarily requires a process of inference, to require that the particulars of sexual intercourse intended be separately supported by circumstances that are to be considered separately from the overall body of evidence. In any event, the presence of the condoms could do so. This evidence was reinforced by the complainant's belief, reflected in the statement "He tried to rape me" - which would ordinarily refer to attempted penile intercourse - considered below under Grounds 3 and 4. The jury was properly directed on how to deal with a circumstantial case. It was open to the jury to find the Appellant guilty beyond reasonable doubt. 18 This ground of appeal should be rejected.

Ground 2: Proof of an intermediate fact. 19 The Appellant submits that the jury could not have been satisfied of the guilt of the Appellant unless satisfied beyond reasonable doubt that he intended to use the condoms for the purpose alleged by the Crown. This was said to be an intermediate fact of an indispensable character, of the nature identified in Shepherd v The Queen (1990) 70 CLR 573 esp at 579, 581 and Gipp v The Queen (1998) 194 CLR 106 at 133. 20 This is simply another way of putting the first ground of appeal rejected above. The Crown did not have to satisfy the jury beyond reasonable doubt that the Appellant intended to use the condoms for penile intercourse against the complainant. This was not an "intermediate fact" of the character relied upon. It was a circumstantial fact which could be taken into account with the other circumstances, discussed above, to prove the element of intention. 21 This point was not raised and leave under Rule 4 is therefore required. I would refuse leave. In any event the matter is covered by my analysis of Ground 1.

Grounds 3 and 4: Admission of part of the complainant's evidence. 22 Grounds 3 and 4 each relate to the statement in the complainant's evidence that she had told her mother "A man tried to rape me". Ground 3 states that the evidence should not have been admitted at all. Ground 4 states that the evidence should have been limited, as sought at trial, pursuant to s136 of the Evidence Act 1995. 23 Leave is sought to rely on Ground 3 which was not raised at trial. I would refuse leave. Her mother gave a different version of the initial complaint, which did not contain the sexual reference. The complainant was cross-examined on credit, including on this divergence from her mother's evidence. This Court should infer that the absence of any objection was a tactical decision. Leave under Rule 4 of the Supreme Court Rules should be refused. 24 Ground 4 is based on the application, that was rejected by his Honour, to limit the use of the evidence pursuant to s136 of the Evidence Act. The limit sought was to the effect that the use of the evidence should be limited to the fact that she made the statement to her mother, but that it should not be admitted as proof of the fact that what had occurred was "rape". The cross-examination to which I have referred proceeded after the rejection of this application. 25 The Appellant submitted that the statement was irrelevant and, as a mere "opinion" was inadmissible under s76 of the Evidence Act. I am of view that the evidence was relevant. 26 The Appellant submitted that the fact that the complainant had the opinion (that the Appellant intended to rape her) could not assist the jury in determining whether the Appellant intended to rape her or not. The Appellant relied upon Smith v The Queen (2001) 206 CLR 650 in which the High Court held that evidence of police officers to the effect that they recognised the accused from photos taken by a security camera was not admissible in circumstances in which the task could be performed by the jury itself. It was submitted that in this case also the jury would not have been assisted by the fact that another person had formed a particular opinion. The Appellant submits that the material available to the complainant was no different to the material available to the jury in the manner identified in Smith. In my opinion this submission should be rejected. 27 A case of a complainant of a sexual assault and a case of police officers viewing photographs have nothing to do with each other. A victim has an understanding of the events in which he or she has been involved of a character which is quite different to that of a third party viewing objective evidence. (See also R v Drollett [2005] NSWCCA 356 esp at [51].) 28 Evidence of complaint is admissible on a number of different bases. It can be relevant to credibility, to consent and to prove the facts asserted in the statement. There was nothing in the way that the defence was conducted which indicated that any element of the offence was conceded. The cross-examination in this respect (T 19/4/05 pp42-44) was directed to having the complainant accept her mother's version of the complaint, which was limited to a statement that she had been pushed. This cross-examination was designed to establish that there was no sexual element to the incident of any kind. It constituted an attack on her credit. 29 On this appeal, the submissions focused on the use of the complaint for a hearsay purpose, i.e. to prove the truth of the content of the statement made. That such a statement is both relevant and capable of use for a hearsay purpose was established in Papakosmas v The Queen (1999) 196 CLR 297 see esp at [20]-[22], [30] on relevance and [33]-[35] on hearsay purpose. The issue in that case was consent. The issue, as argued on this appeal, is the use of the statement for the purpose of proving that the Appellant had a sexual purpose and, more particularly, intended to have penile intercourse. Nevertheless, it is pertinent to point out that detention without consent was an element of the offence in this case and the statement made did negative consent. 30 The parties make submissions on the basis that the evidence was only an assertion of a belief. Two questions arise. First, is the belief relevant to a fact in issue, most relevantly the intention of the Appellant being of a particular character. Secondly, is it admissible as lay opinion. 31 The words used - "tried to rape me" - would in their ordinary meaning refer to an attempt to have penile intercourse. In my opinion, the victim of a sexual assault who has a belief as to what is being done is entitled to express that belief. 32 The Appellant's submissions focused on the Appellant's physical acts, e.g. following the complainant, banging on the toilet door, pulling her hair etc. as if such objective conduct of a physical character constituted the full scope of relevant evidence. That is not so. It is not the case that a description of the objective events was all that was relevant. This is clear from the fact, for example, that the complainant gave evidence that the Appellant "looked angry". Evidence of this character is capable of being given by a victim and is not necessarily able to be identified in terms of physical movements. 33 The same is true of a belief by a woman who has been assaulted that the intention of the attack was sexual gratification. This is not something necessarily capable of full description by describing the movement of parts of the body or other physically observable acts. Such a belief can arise from the impression given at the time by matters which cannot be described in a physical way. Such an impression may only be able to be conveyed to the jury in the form of a statement such as "He tried to rape me", as occurred in this case. 34 In my opinion, the evidence was relevant to a fact in issue. It is sufficient to say that it was relevant to whether the assault had a sexual overtone of any character. I am also of the view that it was relevant to the particularised fact in issue, i.e. whether the Appellant intended penile intercourse. Whether it was of any weight, especially for the latter issue, was a matter open to be tested in cross-examination. 35 The Crown relies on s78 of the Evidence Act that evidence of a lay opinion is admissible if: "(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 36 I agree that this exception applies. An opinion of this character is obviously based on what the complainant perceived and, in my opinion, it was, in this case, necessary to obtain an adequate account of that perception. Putting aside the issue of whether it supports the particular of an intent to have penile intercourse, the evidence was necessary to give an "account of [the] perception" that the assault had a sexual purpose. That this perception was significant was indicated in the cross-examination directed to supporting the mother's version. 37 In rejecting the application, Knight DCJ said: "… it seems to me that the complainant's evidence as to the construction that she was putting on what the Accused allegedly did to her is perfectly permissible to be given, particularly when it was articulated in her complaint. I do not see that there is a danger that the use by the jury of the complaint evidence as evidence of the truth of what was being complained about is going to be unfairly prejudicial to the Accused or be misleading or confusing. After all the complainant is going to give evidence as to what precisely happened to her and if there is any difference between what she says happened to her and what she complained about to her mother, that is a matter on which counsel can cross-examine and no doubt attack the complainant's credit. I do not see that it is either misleading or confusing or that it is unfairly prejudicial in anyway to the Accused but the emphasis of course being that it has to be unfairly prejudicial." 38 I can detect no error in his Honour's reasoning in this respect. His Honour accepted the possible use of the evidence for a hearsay purpose, but rejected the proposition that any prejudice would be "unfair". His Honour indicated that cross-examination could proceed and gave the example of cross-examination about her mother's different version. That is, as I have indicated, precisely what transpired. This cross-examination would, in all probability, have proceeded even if the s136 direction had been given, on the basis that she asserted that she had made such a statement but that her mother's version should be preferred. 39 On this appeal counsel for the Appellant submitted that there was a significant risk that the jury would substitute the opinion of the complainant for their own. I do not see that there was any such risk. His Honour carefully directed the jury on the performance of its functions in a manner of which no complaint is, or could be, made. There was no basis for the suggestion that the jury may have substituted the complainant's belief that what was intended was "rape" for its own assessment of the whole of the evidence. I can see no reason for concluding that there was any prejudice, let alone any unfair prejudice. 40 Since writing the above I have read the judgment of Barr J in draft. I agree with his Honour's additional observations on Ground 3. 41 The Appeal should be dismissed. 42 SIMPSON J: I have read in draft the judgment of the Chief Justice. I respectfully agree with what his Honour has said about Grounds 1 and 2, and, for the reasons given, I would reject those grounds. While, ultimately, I agree that the appeal ought to be dismissed, I take a different approach to Grounds 3 and 4. 43 The evidence in controversy is within a very narrow compass. The complainant gave a detailed account of the events in question, which it is unnecessary here to reproduce. She then said that she broke free from her attacker, and ran, screaming, for her mother. She said that her mother asked her why she was shaking, pale, and crying, to which she replied: "A man tried to rape me." 44 It is this passage in the evidence that gives rise to Grounds 3 and 4 of the appeal. It is apposite here to observe that the complainant's evidence in this respect was not entirely confirmed by her mother, who gave evidence before the complainant. Her mother said that, on hearing the commotion, she investigated; she found the complainant looking "very soggy"; her hair that had previously been in a pony tail was loosened. The complainant's mother asked what happened. Her evidence was that the complainant replied: "This man tried to push me inside"

and indicated the appellant. 45 Partial objection was taken to the admission of this portion of the complainant's evidence. Counsel then appearing for the appellant sought, under s136 of the Evidence Act 1995, a limitation on the use that could be made of the evidence. That section provides: " 136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(b) be misleading or confusing." 46 The specific limitation sought by counsel was that the evidence should not be admitted as evidence of the truth of what was asserted by the complainant. Counsel appeared to accept, as did all concerned, that evidence of what the complainant said was, in conventional terms, admissible as evidence of complaint. It was on that basis that the trial judge admitted the evidence and declined to impose any s136 limitation. His Honour gave his reasons for doing so, referring to the decision of this Court in R v BD (1997) 94 A Crim R 131, since affirmed by the High Court in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297. 47 Evidence of complaint in sexual cases was traditionally, at common law, admitted as an exception to the hearsay rule. The purpose of the law in making that exception was to enable the Crown to call evidence of consistency of conduct on the part of a complainant, relevant to the jury's assessment of his/her credibility. Such evidence was never admitted as evidence of the truth of the content of what was said by the complainant by way of complaint, and juries were invariably cautioned as to the use they could make of this kind of evidence. 48 The 1995 introduction of the Evidence Act brought a significant change in this respect: see Papakosmas. Pursuant to s59, the hearsay rule is preserved. That is, generally speaking, a previous representations of a fact (or facts) is generally not admissible to prove the truth of the fact or facts intended to be asserted by the person who made the previous representation. However, in the succeeding sections are enacted a series of exceptions to the hearsay rule. Relevantly, for present purposes, s60 permits evidence to be given of a previous representation that is relevant for a purpose other than proof of the fact intended to be asserted by the person who made the previous representation. S66 applies in a criminal proceeding, where a person who made a previous representation is available to give evidence about an asserted fact. Where that person has been or is to be called to give evidence, s59 does not operate to exclude the evidence of the previous representation given by that person or a person who saw, heard, or otherwise perceived the representation being made, if, at the time the previous representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the previous representation. 49 In my opinion, evidence of complaint in sexual cases is now made admissible under s60, in order to prove something other than the fact asserted - it is, as was traditional, admissible to prove consistency of conduct, and thus enhance the credibility of the complainant. Depending upon the content of the complaint, it may also, under s66, be admissible as evidence of the truth of the fact or facts asserted. 50 These sections, and the evidence, require some careful analysis. The previous representation in question is the complainant's statement that the appellant tried to rape her. The fact, for the purposes of s59, that she intended to assert was that the appellant tried to rape her. If there were any doubt about that it is dispelled by the written submissions provided on behalf of the Crown, in which the following was put: "The Crown submits that the words as used by the victim express what she perceived had just happened to her, and the words as used in her complaint are relevant, not only to her credibility, but are relevant to the fact in issue in the case as to whether the appellant did in fact have the intention of having sexual intercourse with the victim. The victim clearly believed that the attack upon her was sexual by nature, and the words she used reflect her observation and experience of the situation. The words she used explain her distress and it is a piece of circumstantial evidence, which together with the subsequent finding of the condoms in the accused (sic) pocket, and other pieces of circumstantial evidence ... was available for the jury to use in determining whether the Crown proved beyond reasonable doubt that that (sic) at the time of the detention, the appellant intended to have sexual intercourse with the complainant." 51 The appeal, and, indeed, the argument at trial, were at all times conducted on the basis that the admissibility of the evidence depended upon s66 of the Evidence Act. However, in my opinion, that is an erroneous assumption. S66 and other sections providing exceptions to the hearsay rule only permit hearsay evidence to be given of an assertion that would, in the ordinary course, be admissible through the mouth of the person who made the previous representation in question - that is, the person who, within s59, intended to assert a fact. The exceptions to the hearsay rule do not permit hearsay evidence to be given of a fact or matter of which the person who made the hearsay representation would not be able to give direct evidence. To invoke an ancient but useful cliché, a stream cannot rise higher than its source. The exceptions to the hearsay rule relax the restrictions on the admissibility of hearsay evidence, but only of hearsay evidence that would otherwise be admissible. They do not permit evidence to be given indirectly that would not be admissible directly. 52 That is why it is important to recognise the character of the fact intended to be asserted by the complainant. In saying that the appellant tried to rape her, she was not asserting that he conducted himself in any particular fashion: she was asserting that he had a particular state of mind - an intention to rape her. 53 The complainant would not have been permitted to give this evidence in court. (Indeed, no attempt was made to have her give such evidence.) Why would she not be permitted to give that evidence in court? There are two reasons. Firstly, what was within the appellant's mind was not within the complainant's knowledge and was not made admissible by any other provision of the Evidence Act. What she said was, properly characterised, her conclusion, drawn from the conduct she observed, of what was in the appellant's mind. Her conclusion as to what was in the appellant's mind was not relevant to any issue in the proceedings. (What in fact was in the appellant's mind was very much relevant to the proceedings - it is the complainant's conclusion or assumption as to what was in his mind that is irrelevant.) The second reason the complainant would not have been permitted to give evidence of what was in the appellant's mind is that that was a critical issue for the jury to determine. It was an element in the Crown case. 54 In my opinion, the complainant's evidence of what she said to her mother was, however, admissible under s60 - it was admissible for a purpose other than proving what was in the appellant's mind. It was, in the traditional way, admissible to establish consistency of conduct on the part of the complainant, and to enhance her credibility. It was not admissible under s66 to prove the truth of the fact asserted by the complainant. 55 The use to be made of the evidence ought to have been limited, under s136, and the jury directed that the complainant's assertion of (what she concluded to be) the appellant's intention could not be used as evidence that that was indeed his intention. 56 The Crown advanced an alternative proposition that the evidence was admissible as evidence of the complainant's opinion. By s76, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. There are, however, as with the general prohibition on hearsay evidence, a number of exceptions to this general prohibition. By s78 the opinion rule does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 57 The first condition is, in this case, met; if what the complainant said can be properly characterised as an opinion, then it was plainly an opinion or conclusion based upon what she saw, heard and otherwise perceived about the events in question; however, the second criterion is not met. Evidence of the complainant's opinion is not necessary to obtain (or to give the jury) an adequate account or understanding of her perception of the matters and events in question. S78 does not operate to render the complainant's statement admissible as opinion evidence. 58 It follows that, in my opinion, error has been demonstrated in the manner in which this evidence was treated. It does not, however, follow that the appeal ought to be allowed, whether with the order of a new trial or otherwise. In my opinion, the evidence can have done no harm to the appellant. It would plainly have been perceived by the jury as the complainant's conclusion of the appellant's intentions, and as a conclusion drawn by her from the facts and circumstance which she had described in detail. In my opinion no miscarriage of justice, substantial or otherwise, has been occasioned: see Weiss v The Queen [2005] HCA 81; 80 ALJR 444. 59 I agree that the appeal ought to be dismissed. 60 BARR J: In my opinion the appeal should be dismissed. I agree, for the reasons explained by Spigelman CJ, that the first and second grounds of appeal have not been made good.

Ground 3: A miscarriage of justice occurred as a result of the admission into evidence of the complainant's evidence that she told her mother "a man tried to rape me". 61 The complainant's evidence of what she had told her mother immediately after the attack, viz - A man tried to rape me

was plainly evidence of complaint and admissible as such. If objection had been taken to the tender of that evidence the proper response would have been to overrule the objection and receive the evidence. This Court ought therefore to refuse leave to argue the third ground of appeal.

Ground 4: The learned trial judge erred in not limiting the use of the complainant's evidence that she told her mother that "a man tried to rape me" to the fact that it was said, pursuant to s136 Evidence Act 1995. 62 Evidence of the words the complainant uttered to her mother was admissible to prove the consistency of the complainant: see Papakosmas v The Queen (1999) 196 CLR 297. 63 Fortunately, since the advent of the Evidence Act 1995, evidence of complaint has been received under rules more attuned than before to common sense. Under the old law, juries hearing evidence of complaint asserting facts not materially distinguishable from the corresponding evidence-in-chief had to be told that the evidence could prove only the consistency of the complainant in making the complaint but not the truth of what was asserted in the complaint. Only unthinking jurors would have failed to ask themselves how the prior statement could prove consistency (leading to a possible conclusion that the evidence-in-chief was therefore more likely to be true) if it could not prove that what was asserted was true. Now, s60 Evidence Act has removed this logical conundrum. 64 The words of complaint were wider than the words used by the complainant in her evidence-in-chief. But there is no rule of law that says that if the terms or scope of a complainant's evidence-in-chief and her prior complaint are different, the latter must never exceed the former. Whatever the differences between the terms of the complaint and the terms of the evidence-in-chief, they were of the same species or substance. Both statements spoke of attempted rape, the one directly and the other indirectly. 65 It is not altogether easy to understand how, if the jury had been told that they could use the words the complainant said to her mother to prove the consistency of the complainant though not that what the complainant said was true, they could have given practical effect to such a direction. For the reasons which I have explained, such a direction would have confused the jury. In my opinion the trial judge was correct in not reintroducing the problem by ordering under s136 that the use of the evidence should be limited.

66 Witnesses commonly remember and describe events in a conclusive or apparently opinionated way. They frequently describe a person as "trying to" do a particular act. There are examples of such reportage in the evidence of the complainant in this very case, viz - He pushed me into the hallway with both his hands on my upper arms and with this, because he pushed me so hard the door , which is the main door, stayed open . It's one of these doors that has like a hinge at the top so that it shuts automatically, but because he pushed me that hard the door stayed open when he pushed me. … Q In relation to when you were pushed when did you start screaming?

A Basically as soon as I could see that he was angry and I didn't recognise him as someone of the workers, like in the building, and so just when he pushed me, yeah. … Then he let go of my right breast and I was still trying to get out but then he moved his hand from my breast, all this time I was still screaming for my mum and then he moved his hand over my mouth to cover my mouth to stop me from screaming .

67 In these passages the complainant was describing what she had observed. She was not necessarily expressing her opinion about what she had observed. I do not think that the words she said to her mother were the expression of any opinion. I think that she was reporting an event. 68 Insofar as the evidence was tendered for a hearsay purpose, s66 Evidence Act had effect. The conditions of that section were met: the complainant was available to give evidence and did so; the facts were fresh in her mind when she uttered the impugned words. As I have observed, the complainant was by her words describing an event. In my opinion any difference between what she told her mother and what she told the jury was of form and not of substance. There was no occasion for limiting the use of the evidence of what she told her mother.

69 In my opinion this ground of appeal has not been made good.

06/06/2007 - Changes to "the complainant" - Paragraph(s) 4, 10 and 11

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