Robinson v The Queen

Pursuant to the grant of special leave, Robert Raymond Lloyd Robinson appeals against an order of the Court of Criminal Appeal of Queensland dismissing his appeal against a conviction for rape. The question in the appeal is whether the trial judge erred in directing the jury that, in considering the credibility of a witness, one of the tests to be applied is the interest which the witness had in the outcome of the case and that the greater the interest the more carefully the witness's evidence should be scrutinized. The appellant contends that the jury would perceive that he had a greater interest than any other witness in the outcome of the case and that the effect of the direction was that his evidence had to be scrutinized more carefully than the evidence of any other witness, including the complainant who alleged that he had raped her.

In 1987, the complainant was studying for a Master's degree at the University of Queensland. At about 7 p.m. on 17 November 1987, pursuant to a prior arrangement with the appellant, she went to a motel unit where she met the appellant for the purpose of discussing Aboriginal religions with him. The appellant is an Aboriginal. The complainant was studying Aboriginal religions as a topic for her Master's degree. The appellant purchased two take-away meals which were consumed in the motel unit together with some glasses of wine. Discussion between the appellant and the complainant continued until about 8.50 p.m. when, according to the complainant's evidence, she announced that she had to leave as she had arranged to meet her boyfriend. The complainant alleged that the appellant prevented her from leaving and, after a struggle and threats by the appellant, she consented to have sexual intercourse with him. The Crown alleged that the consent was obtained by force and the complainant's fear of further bodily harm. Evidence that the complainant had an injury to the face between the upper lip and the nose, an injury inside the lip and bruising to her right arm was left to the jury as corroboration of her claim that she had been raped. The appellant, who gave evidence, claimed that the consent to sexual intercourse was freely given.

Early in his summing up, the trial judge instructed the jury that there were a number of ways in which they could test the credibility of a witness. After referring to two "tests", his Honour said:

Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, "Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others." That is a matter you have to bear in mind when scrutinizing a particular witness's evidence. Towards the end of the summing up, his Honour repeated his direction concerning credibility. He said: Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinize that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinize his evidence closely.

Counsel who then appeared for the appellant did not ask the learned judge to withdraw either of these directions. Indeed, counsel seems to have accepted that the directions were properly put to the jury. The chief concern of counsel in respect of the directions was that the jury should understand that the complainant also had an interest in the outcome of the case. He said:

I am asking your Honour to direct the jury that the complainant also has an interest in the outcome of the proceedings in that she has given evidence on oath about an episode and she has made a complaint to the police and consequently she would like to see that successfully prosecuted. As the result of this request, his Honour redirected the jury as follows: On Friday I told you in effect that one of the tests you apply in considering a witness was the interest a witness had in the outcome of the case, and I think I suggested to you this morning you might well conclude that the accused has the greatest interest of all the witnesses. I think I also said that you might think that the greater the interest the more carefully you should scrutinize a witness's evidence. You might well conclude, it is a matter for you, that the complainant also has an interest in the outcome of this case. I didn't intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only. You apply it to all the witnesses if you believe that test is applicable.

Shortly after giving the first of these directions, the learned trial judge instructed the jury as to the criminal onus and standard of proof in a way which was unexceptionable. Indeed, he told the jury that they could:

disbelieve the accused and his witnesses in every word they utter from the witness-box and it would not follow that therefore he is guilty and the Crown has proved the case against him. That onus of proving his guilt is still with the Crown. Furthermore, at the end of his summing up, his Honour reminded the jury that: the onus of proof of the accused man's guilt is at all times with the Crown; that onus is to be to the standard of proof beyond reasonable doubt; although the accused went into the witness-box and called evidence in his defence he did not undertake any burden to disprove his guilt. Remember, from start to finish the onus of proof is always with the Crown, there is no onus on the accused.

Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had "the greatest interest of all the witnesses" in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a "suspect witness" in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as "suspect witnesses", that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny [1] . An express direction which had the effect of his Honour's directions would have been a clear misdirection, as Mr. Butler, counsel for the Crown, readily accepted. Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.

1. See Reg. v Hester , [1973] A.C. 296, at pp. 324-325; Longman v The Queen (1989), 168 C.L.R. 79, at pp. 85, 104-105.

Nothing in the above is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.

It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence.

Despite the lack of any objection to the directions at the trial and the failure to make the directions the subject of a discrete ground of appeal in the Court of Criminal Appeal, the conviction must be quashed. A conviction based on such directions is simply too unsatisfactory to be allowed to stand.

The appeal should be allowed. The conviction should be quashed and a new trial ordered.