40 Defence counsel responded to this submission as follows:
"But the fact that she says she was assaulted and did not consent to sexual activity I say is absolute nonsense. And the fact that a person may cry or not cry is of no consequence, in my submission to you" ( my italics).
41 It was objected on behalf of the appellant that the Crown's was an unusual submission and that normally a submission about demeanour should be couched in more general terms, that the prosecutor was asking the jury to reason to guilt for a number of reasons including the fact that the witness cried at the relevant part of her testimony, that the crying was being relied on as "real evidence", and that a warning should have been given that it may be unreliable under s 165 of the Evidence Act.
42 I do not agree. Although warnings have been given from time to time about excessive reliance by tribunals of fact on the demeanour of witnesses, the common law has long recognised the relevance of demeanour in the witness box in assessing the credibility of witnesses: Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304 at 313 C-D. That case concerned observations by the trial judge (in a trial without a jury) of the plaintiff outside the witness box and the necessity for the judge to give notice to the parties of his observations, but as pointed out by Kirby P in the passage indicated, there is no such obligation in respect of observations made of the witness when giving evidence because all parties are necessarily on notice of what they can see for themselves.
43 A party addressing a tribunal of fact on the credibility of a witness is not only entitled to make general submissions in this regard but may descend to particulars. If the witness has fidgeted, displaying obvious discomfort when giving evidence, has laughed, or been slow in giving answers, these matters may be commented on, and I see no reason why crying when giving sensitive evidence may not similarly be relied on.
44 It is of course open to the opponent to suggest that they are not genuine tears, or that the witness is crying because he or she is telling lies and finding it difficult to do so, but I can see no objection to the prosecutor asking the jury to take the crying of the complainant into account when assessing her credibility in saying she had not consented to what occurred. In this case the Defence Counsel in his address responded to the submission in the form I have indicated. I suspect that he did not elaborate for fear that to do so, in the atmosphere of the trial, would only have reminded the jury of her tears and thus aggravated the situation from his client's point of view.
45 As to ground 3, the actual passage from the Crown Prosecutor's address was as follows: (T429).
"Now once again Jenny's account to the police was taken on the 19 November last year, the day after his happened. You can assume that her account to the police was consistent with the evidence she has given in court because she was not cross-examined about any inconsistency".
46 And later she said:
"But the law also provides that you can use this consistency, and the immediate reporting of it, when assessing the truth of what happened. That is, what she told Mr Felice, her boyfriend, the police and Dr Hui is evidence that what she said happened, did actually happen. And the law provides that"
47 There was evidence in the trial of what the complainant had said to Mr Felice, to her boyfriend and to Dr Hui, but there was no direct evidence of what she had told police as her statement to police had not been tendered, and could not have been unless her evidence was inconsistent with it and the complainant denied such inconsistency (s 106). The evidence of what she told the other persons to whom she made complaint was all consistent with her evidence.
48 In his written submissions, the Crown Prosecutor concedes that the submission ought not to have been made and that the trial judge should have cautioned the jury in drawing such an inference on that basis, because there may have been any number of potential reasons for the absence of cross-examination, including mere oversight by Defence Counsel. However, as he further points out, the submission was otiose since there was a substantial body of evidence before the jury which disclosed that the complainant had made substantially consistent complaints to other witnesses (Mr Felice, her boyfriend and Dr Hui).
49 Of course, Defence Counsel had the opportunity to respond to this submission in his address but, not surprisingly, did not do so, and he made no application to the trial judge for any direction to the jury in relation to the matter. I would not uphold the appeal on this ground.
50 This case can be distinguished in this regard from R v GED [2003] NSWCCA 296 when the complaint concerned what was said by the judge in his summing up where he referred to inconsistencies in the evidence of the complainant and a witness on the one hand, and a recorded interview by the accused on the other hand, and where the failure to cross-examine the complainant and the witness on the inconsistencies was used to found an argument to the effect that the accused had lied in his recorded interview on account of a consciousness of guilt.
51 Grounds 4, 5, 6 related to the directions given by the trial judge in his summing up. Ground 4 was as follows:
(a) The trial judge failed to direct the jury adequately, and erred in his directions, in relation to lies, having regard in particular to the way in which the prosecutor addressed on the topic in the course of her address to the jury.
(b) The trial judge erred in admitting the record of interview. Alternatively, the trial judge did not adequately direct the jury on how it should use or assess the evidence found in the record of interview.
(c) The trial judge erred in admitting evidence about AIDS or HIV medicine and notes from Concord Hospital. Alternatively, the trial judge failed to give the jury adequate directions and warnings about this material.
52 In her address to the jury, the Crown Prosecutor referred to the Concord Hospital notes and what she alleged were lies told by the appellant in his recorded interview where he said he was physically incapable of penile intercourse, whereas what he had told the doctors at Concord Hospital indicated otherwise. It was submitted that the submissions put to the jury involved an unmistakable reliance on consciousness of guilt reasoning. I do not see them as carrying such a suggestion and do not believe the jury would have so understood them.
53 In his Written Directions, his Honour referred to "lies" under the heading "Credibility" and there is nothing in those Written Directions suggesting "consciousness of guilt" type reasoning.
54 His Honour's oral directions on this subject were as follows:
"Now, members of the jury, I point out on pages 5 and 6, under the heading "Credibility", that people have many reasons for telling lies. Sometimes, it has to be said, people will, when confronted with possible criminal charges, tell lies. They try to distance themselves from it. It may be that they are not in fact guilty, and they give a version of events which is very incriminating, and it incriminates them because they are trying to distance themselves from events. It could be panic that causes people to tell lies. There could be other reasons to tell lies. But if a person tells a lie, and you find it to be a lie, that must cause you to consider anxiously any other evidence given by him. And in this case, if he tell lies in his interview, you must give anxious consideration to the question, when he says she consented is that true or is it not?
Well, if you came to the conclusion he was lying about the fact that he did not ever get his penis in, for example, you might ask the question what does that say about his evidence in this document that she was consenting to whatever occurred; and not only consenting but indeed being the moving party?
55 These directions appear to be clearly directed to lies as going to credibility, although the reference to persons "trying to distance themselves from it" is confusing and tends to blur the distinction between lies as evidencing a consciousness of guilt and lies as going to credibility; but his Honour went on to put that remark in the context of a person who is not guilty of an offence incriminating himself by telling lies, and it was apparently intended as a warning to the jury not to infer guilt merely because they were satisfied that the appellant had told lies.
56 The suggestion that if they found that the appellant had told lies, that "must" cause them to consider anxiously any other evidence given by him, and they "must" give anxious consideration to whether it was true or not when he says that the complainant consented is unfortunate and "may" would have been more appropriate in both instances. For a time I was concerned that the use of the word "must" indicated that they were required to reason in a particular way, but on reflection I consider that in the context, his Honour was merely directing them to take such lies as they found into account, but not directing them to reach any particular conclusion in consequence thereof. Otherwise, the direction is unobjectionable as a direction on lies going as to credibility, although it would have been preferable to have warned the jury against employing "consciousness of guilt" reasoning: Zoneff v The Queen [2000] HCA 28, 200 CLR 234 at [24].
57 As to (b), the recorded interview was clearly admissible as part of the investigation, subject to editing of any parts which were irrelevant or unfairly prejudicial to the accused. It contained a number of admissions, including the presence of the complainant with the appellant at his house on the day in question and some sexual activity. It was the appellant's version of the facts as given to the police and, as the appellant subsequently did not give evidence, it was the only material from him before the jury containing his assertion that the claimant consented to such sexual activity as took place between them and that she was the "moving party".
58 It also claimed what the Crown asserted were lies e.g. that he was incapable of penile intercourse, but such alleged lies were relied on not as showing a consciousness of guilt (although it would appear they could have been), but as reflecting on his credibility when he asserted that the complainant consented to what occurred.
59 Consistent with what was said in Richardson v The Queen (1974) 131 CLR 116 and R v Apostilides (1984) 154 CLR 563 the prosecutor's obligation to put the case fairly would, on its face, require the Crown to tender the recorded interview in its case, unless there were some positive reason for not doing so: R v Soma [2003] HCA 13, 77 ALJR 849 at [31]. Furthermore, the Crown could not anticipate what other matters might be raised in the Defence case (if any) and could not split its case, so had to tender all its relevant and available evidence in its case.
60 The recorded interview was substantially edited and it is now claimed that as edited it was a very unsatisfactory document, but that complaint does not appear to have been made at the trial. However, notwithstanding that the recorded interview was admissible, the Crown in his Written Submissions concedes that the transcript of the recorded interview (Ex C26) is in many respects a confusing document and that the final edited form of the interview which went to the jury may not have fairly conveyed the full import of the appellant's representations on subjects which the Crown sought to rely on as lies.
61 As to (c), the appellant submitted that evidence relating to the HIV medicine found at his premises and the history he gave the doctor at Concord Hospital was not admissible as such evidence only went to credibility as showing he had lied in his recorded interview; and that it was accordingly inadmissible as s 102 Evidence Act renders inadmissible evidence which relates only to credibility (subject to the specified exceptions). However this evidence was not relevant only to credibility, but was admissible to show that the appellant was capable of doing what the complainant said he had done. This was made clear by his Honour in the last section (pp 8-9) of his written instructions (excluding the last 3 lines) and at T 407 his Honour made it clear that he regarded the evidence as gong not only to credibility, otherwise he would not have admitted it.
62 Accordingly although the direction on lies could have been better expressed and, like the Crown Prosecutor I had some uneasiness concerning the final form of the recorded interview, I was not satisfied that any of the elements of ground 4 were established.
Ground 5: The trial judge erred in his directions on corroboration and assessment of the complainant's evidence.