Carden v The Queen (1992) 8 WAR 296

Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

Ibbs v The Queen [2001] WASCA 129

Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495

McComish v The Queen [1998] WASCA 248

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

R v Giam [1999] NSWCCA 53; (1999) 104 A Crim R 416

R v Mackay, unreported; CCA SCt of Vic; 9 August 1991

R v Noonan [1998] VSCA 8

R v Ralph and George (1988) 37 A Crim R 202

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306

1 MALCOLM CJ: In my opinion this appeal should be allowed on the first ground that the verdict of the jury was unreasonable and was not supported by the evidence, to the extent that a verdict of guilty was not one which was open to a reasonable jury to return. I have reached this conclusion for the reasons to be published by McKechnie J with which I agree.

2 As to the second ground of appeal, it was contended on behalf of the appellant that the learned trial Judge erred in law in failing to adequately direct the jury about the application of the burden and standard of proof because the jury were not directed that, even if they did not positively believe the appellant's explanation, they could not make a finding on an issue contrary to his evidence if it gave rise to a reasonable doubt on that issue. Further, it was contended that the jury should have been directed to consider the possibility that, while they found the complainant a generally truthful and reliable witness and could not positively believe the appellant's explanation, they nevertheless were left with a reasonable doubt about the issue of consent.

3 As McKechnie J has concluded, I agree that it is desirable that as a matter of prudence for directions to the effect formulated by Brennan J in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515 to be given to a jury where there is a conflict between the evidence of an accused and the evidence of a complainant, but such a direction is not one required as a matter of law.

4 In cases such as Latham v The Queen [2000] WASCA 57; Middleton v The Queen [2000] WASCA 200; and Miles v The Queen [2000] WASCA 364, the particular circumstances may require a direction in the terms substantially to the effect of the direction formulated by Brennan J in Liberato. I am not convinced, however, of the need or desirability for such a direction to be given in an appropriate case to avoid a miscarriage of justice being elevated to a requirement that such a direction be given as a matter of law. Each case will depend on its own individual circumstances.

5 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by McKechnie J. I agree with his Honour, for the reasons which he gives, that the verdict of the jury is unreasonable and is not a verdict which it was open to the jury to return. I desire, however, to make some brief comments on the second ground of appeal.

6 In Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, by a majority of three to two, the High Court refused special leave to appeal. In that case the jury had been directed by the trial Judge that, before they could convict the accused, they had to be satisfied beyond reasonable doubt of his guilt, but he had gone on to add that the jury would have to decide whether to accept the evidence of a prosecution witness or the evidence to the contrary of a defence witness. It was the latter direction that gave rise to the concerns of Brennan and Deane JJ. Mason ACJ, Wilson and Dawson JJ said there was no dispute that there were defects in the summing up given by the learned trial Judge, and that these defects had been correctly identified by the Court of Criminal Appeal. That court, however, had reached the conclusion that there was no substantial miscarriage of justice which would justify an order for a retrial. They were of the view that special leave to appeal should be refused.

7 Brennan and Deane JJ would have granted special leave. At 515, Brennan J said:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is common place for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as including the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is a 'gross simplification'."

8 Deane J, having referred to a number of misdirections by the trial Judge concerning the onus of proof, went on to say, at 519:

"The above misdirections about onus of proof must be considered against the background of a number of passages in the learned trial judge's summing up in which he carefully and correctly explained to them the requirements of the criminal onus and standard of proof. They must, however, also be considered against a background where, on a number of occasions, his Honour directed the jury in terms which indicated that the overall question for them essentially involved the making of a 'choice' between prosecution and defence evidence: 'in many ways this case boils down to who do you believe'; 'You may well think that the attitudes are so far apart that you have to make a choice'; 'The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence, [the complainant] or the accused?' Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a 'choice' between particular witnesses are, no doubt, sometimes unavoidable. The main significance of the directions about having to make a 'choice' lies, in the present cases, in their clear suggestion that the 'real question' in the cases turned upon a mere 'choice' between the evidence of the complainant and that of the accused and in the possible contribution of that suggestion to the overall effect of the misdirections about onus of proof.' Their significance in that regard is underlined by the linking, in the passage which I have quoted in the preceding paragraph, of satisfaction of 'a belief in the accused' with a failure to be satisfied beyond reasonable doubt of the ingredients of the charge. It was heightened, rather than reduced, by his Honour's further direction after the completion of his summing up, that his previous statements to them that the case 'might well be' one 'about whom you might believe' was 'a gross simplification in many ways and I am sure you will bear in mind what I have put to you about considering the evidence carefully and weighing it very carefully'.

Overall, it appears to me that it is more probable than not that the learned trial judge's orthodox directions on the standard and effect of the onus of proof would have prevailed over the effect of the misdirections. It is, however, impossible to do more than speculate in that regard. There must remain a significant possibility that the members of the jury were, at the very least, confused about the nature and the operation of the criminal onus to the extent that they saw their task as essentially one of making a 'choice' between the Crown evidence and the evidence called and statements made on behalf of the accused and as involving no more than a decision about whether or not, to adapt the words of the learned trial judge at one stage of his summing up, they should 'believe' the complainant on the whole of the evidence."

9 In KRM v The Queen [2001] HCA 11; (2001) 75 ALJR 550, at 571 [105], Kirby J, referring to the need for clear judicial directions to the jury, cited the pages containing the above passages in the judgments of Brennan and Deane JJ.

10 In the present case, there was a clear conflict between the evidence of the complainant and the evidence of the appellant. In her summing up, the learned trial Judge said:

"There are two quite different accounts of what occurred. They are quite opposite, diametrically opposed, in relation to the issue of consent. Obviously both accounts have a sexual intercourse taking place in the toilet on that night and there is some consistency in terms of meeting of details like, for example, the mention of the job and the ute and some other aspects of the accounts, but in relation to the issue arising in relation to this particular offence, they are of course quite completely different and as has been mentioned to you before, this is going to come down then to your assessment of these two different accounts. That's going to involve your assessment of the credibility of the complainant and the credibility of the defendant's account as relayed to you through the video record of interview and of course we have other evidence from other persons as to what the complainant did and said after this incident.

But of course the issue of credibility is a significant one and of course what is probably crucial in this case for you - and I'm sure you are well aware of it by now - is that the only people who can tell you what took place inside the toilet block were of course the complainant and of course the defendant, and his accounts come through the video ...

The issue of credibility - you decide the issue of credibility by using your common sense. You look at all of the evidence that has been presented to you in making that decision and of course you look at what witnesses say in court, you look at what they say, and you look at what they say in the context of all of the other evidence that has been presented to you. You look at how they give their evidence and of course you use your common sense but it is very important to understand that because this is a criminal trial and because of the presumption of innocence, it's not a question of balancing two accounts and saying 'Well, we prefer this one and we think this one is the most likely' or 'This is the one that fits in best with some of the other evidence'.

That's not the approach that you take and I suppose it's something that's highlighted all the time because when you have got two completely different accounts and the only people who can give you those accounts are the complainant, Ms Finnerty and the defendant, then there's sometimes a tendency to say, 'Well, which one do we prefer' and of course it's very important for you to understand that what you do in a jury trial because this is a criminal trial - it's not like a decision that you are making in other parts of your life where you can sort of balance things up and decide which is the most likely thing to have happened.

In this case because of the presumption of innocence and because the prosecution bear the burden, even if you decided that one thing might be more likely, one account of what occurred might be more likely, you can't convict the accused man unless you are satisfied beyond reasonable doubt that the account that the complainant has given you in court is a truthful and accurate account in relation to the essential aspects of this offence, and of course the issue, the main issue in this case, is the issue of consent, so it's very important that you bear that in mind at all times."

11 It is clear that her Honour was careful to avoid telling the jury that it was for them to decide whether to believe the complainant or the applicant, which would have given rise to the need for a direction along the lines indicated by Brennan J in Liberato v The Queen. In this case, however, the jury could have been left in no doubt that it was not simply a matter of weighing up the evidence of the complainant and the accused and preferring one to the other. Although, in my opinion, it might have been preferable for the learned trial Judge to have incorporated the direction suggested by Brennan J, the omission to do so does not lead me to uphold this ground of appeal.

12 On 28 November 2000, the appellant stood trial on an indictment which charged that on 21 February 1999 at Como, he sexually assaulted the complainant with a circumstance of aggravation that he then did her bodily harm.

13 On 30 November 2000 the appellant was convicted of sexual assault, but acquitted of the circumstance of aggravation.

14 He was subsequently sentenced to a term of imprisonment.

15 From that conviction he appeals on two grounds which may be summarised. The first ground is that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. The second ground is that the learned trial Judge erred in law in failing to adequately direct the jury about the application of the burden and standard of proof.

16 The complainant was at the time of the trial aged 26. In February 1999 she was a heroin addict and also abused other drugs such as Valium. The complainant said that she first met the appellant in a coffee shop in Albany Highway, South Perth. He introduced himself, saying that he had a job as a secretary and gave her a business card with a mobile telephone number on it. He told her to ring. The next day or the day after she rang him from the Perth train station and he picked her up at about 5 to 6 pm to take her to his business and show her around. It was late afternoon. She was at that point under the influence of heroin and a little drowsy. The appellant said he was going to drop a parcel off on the way and then they would go to the office. He took her south of the river. At the time the complainant was staying in a women's refuge in Mt Pleasant. During the course of the journey the complainant indicated that she needed to go to the toilet and the appellant drove to a toilet block in Como. She went into the toilets which were pitch black. The appellant came into the toilet block, grabbed her by the throat and hair, pulled her out of the toilet cubicle to the concrete floor and sexually assaulted her. He pushed her down onto the ground so hard that she hurt her tail bone and hit her head against the ground a couple of times. During the time he was having intercourse with her, he had his hand on her throat. She pretended that she had passed out so he would leave her alone. She heard the car start up and leave. On her evidence-in-chief, she waited about 10 or 15 minutes, came out and went to a "sort of restaurant" to use the phone. From there she went to a motel later identified as Broadwater Apartments. She spoke to the receptionist Mr Sawbridge. She rang the appellant. She then walked to the Pagoda Hotel next door. The police were called and they attended. She complained to the police who attended, Constables Stoneman and Wiseman, that she had been sexually assaulted, broadly in the terms just set out. She was taken to hospital but left. The next day she was taken to SARC where she was examined.

17 The appellant was interviewed by police on 20 April 1999. That interview was recorded on video tape and played to the jury as part of the Crown case. The appellant gave a number of divergent accounts of the incident during the course of that interview. In his first account he denied an involvement in any offence, denied knowledge of the complainant, and denied having sex in a toilet block in South Perth.

18 The police then asked for a DNA sample. The appellant changed tack, admitting: "I most probably had sex with her." He alleged that he met the complainant in Hyde Park on Sunday; that she approached him and asked whether he wanted her services. They went in his car to a car park and she performed oral sex for $50. He did speak to her about receptionist work and gave her his card. He then varied his account saying that the oral sex occurred on the Monday and she rang him on the following Tuesday.

19 After further questions by the police he admitted he did have sex with the complainant on the Sunday. In that final account he said that he met the complainant at Hyde Park on the Saturday evening and discussed the prospect of her employment, he gave her his card and asked her to call him on the following day. She did so and he picked her up from Hyde Park. She was stoned. She asked him about the job and he told her it was not available. He asked her for sexual services and he suggested the toilet block. The complainant nominated the female toilets. They had sex with the light on in a cubicle. After sex he left her there and later that evening she rang him while he was driving on Canning Highway. He paid her $100 before they had sex.

20 The appellant did not give sworn evidence at the trial. He told a series of lies to the police so there might be little confidence in his final version of events. The trial was fought around the competing versions.

21 The parties identified the live issue at trial as the question of consent. The complainant described an act of violent non-consensual sex. The appellant described an act of non-violent consensual sex for money.

22 The first ground of appeal is properly particularised. It is:

"1. The verdict of the jury was unreasonable or cannot be supported having regard to the evidence because, due to the discrepancies, inadequacies and lack of probative force of the evidence of the complainant, it is dangerous to allow the verdict of guilty to stand.

Particulars

(a) The prosecution case was wholly dependant upon an acceptance, beyond reasonable doubt, of the uncorroborated evidence of the complainant.

(b) The complainant was a heroin addict who admitted in evidence taking heroin before and after the alleged sexual assault.

(c) The evidence of the complainant was that the applicant, a virtual stranger, entered a female public toilet occupied by the complainant, dragged her out of the cubicle, grabbed her by the throat, threw her to the ground, banged her head hard against a concrete floor several times and penetrated her with his penis until ejaculation.

(d) The applicant said in his video record of interview with the police that the complainant had agreed to have sexual intercourse with him for payment of $100.00, and that, after payment, consensual sexual intercourse took place in the female public toilet block.

(e) On both versions of events the applicant left the complainant at the toilet block after he had ejaculated.

(f) Evidence from a prosecution witness, a male receptionist at a hotel, confirmed the complainant telephoned the applicant within approximately two hours after the alleged sexual assault and said to him words too the effect of 'where are you', 'where did you go'.

(g) The complainant did not make a complaint of sexual assault to either a male or female hotel receptionist whom she saw at two different hotels, within approximately two hours after the alleged assaults.

(h) The first complaint of any type was to a police officer the female hotel receptionist had telephoned because the complainant told her she was concerned she would be locked out of a refuge where she was staying, and even then there were discrepancies between the complaint and the evidence of the complainant at trial.

(i) Two police officers who attended the complainant that night gave evidence the complainant admitted she was a prostitute, which the complainant denied at trial.

(j) The complainant when examined by a SARC doctor the next day had no objective signs of injury and did not complain to the doctor about her head being smashed on the floor.

(k) The complainant made a number of prior inconsistent statements to her evidence at trial."

23 The relevant principles of law are well settled and are simple to state, although their application to the facts of particular cases may at times cause difficulty.

24 The Court of Criminal Appeal is bound by the Criminal Code s 689(1) to allow an appeal (unless there is no substantial miscarriage of justice) if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

25 The New South Wales equivalent statutory provision (Criminal Appeal Act 1912 (NSW) s 6(1) was considered in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. The test now settled is whether on the whole of the evidence it is open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

26 In explaining this test in M, the majority said:

"If the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based on that evidence."

27 Conformably with that test, it is necessary to examine the record of the trial in detail to make an independent review of the evidence.

28 The appellant points to a number of inconsistencies and improbabilities, together with evidence of unreliability, which it is said renders the verdict open to the significant doubt referred to in M.

29 The only evidence bearing on the question of consent was that of the complainant and the material contained in the appellant's record of interview. There was no admission as to non-consent. On the contrary, the appellant asserted in the video record of interview that the sexual act in the toilet was an act of prostitution.

30 It was necessary for the jury to be satisfied beyond reasonable doubt that the complainant was a reliable witness as to the question of consent; that she was a credible witness and that she was a truthful witness. It is appropriate to focus on details of her evidence to determine whether there is a significant possibility that the accused was wrongly convicted by reason of inherent discrepancies and unreliabilities.

The complainant's evidence as to drugs and her powers of recollection

31 At the time the complainant got into the appellant's vehicle she was using heroin, a drug which she had used for some four years. She had stopped using methadone some two weeks earlier. She was at the time a heavy heroin user, using as often as she needed, up to a weight a day, which is some $350 to $550. She had used heroin about two hours before the appellant picked her up and was under the influence of heroin. The influence made her feel normal but sometimes relaxed and drowsy.

32 Following the incident she took some Valium which made her feel a bit out of it. She did not remember the night: "Not that well, bits and pieces". The effect of the drugged condition of the complainant at the relevant time has a bearing on the reliability of her testimony. She was interviewed on the night by Constable Stoneman who thought she appeared upset and slightly incoherent, although he had no difficulty in understanding her. She was very evasive, in his opinion, and she admitted having some heroin prior to the police arrival.

33 Constable Wiseman gave evidence that the complainant was incoherent, having just had a hit of heroin.

34 On 24 February 1999 the complainant was interviewed for a period of 2-1/2 hours by Constable Carson who took a statement from her. Constable Carson's evidence was that the complainant's coherence varied and she was possibly under the effect of something but it did not affect her ability to give a coherent account of events. When she gave her first statement to Constable Carson, the complainant "was on a lot of drugs then." She denied that the heroin affected her recollection of what happened. She said heroin affects memory but not what happens.

The complainant's evidence as to criminal behaviour

35 During the course of her evidence the complainant admitted that she dealt in drugs to finance her habit. She denied ever turning to prostitution to support her habit, saying "... there's a lot of ways. There's fraud, there's chequebooks and - which, yeah, if you check my record, that's whats on there ---"

37 The prosecution led evidence of a number of statements made by the complainant before her testimony and inconsistent with it. These may be conveniently considered under different topics.

(a) The initial meeting between the complainant and the appellant

38 The complainant gave evidence that she first met the appellant in South Perth across from a hotel in a coffee shop in Albany Highway. She did not remember the day of the week or the time of day.

39 It was put to the complainant in cross-examination that she in fact met the appellant for the first time in Hyde Park. Although at one point she did appear confused, she maintained her evidence that she did meet the appellant at a coffee shop in South Perth or Victoria Park.

40 Constable Wiseman and Constable Stoneman gave evidence that the complainant had told them that on Friday 19 February she met the appellant in Hyde Park.

41 The complainant denied she had told police she had met the appellant in Hyde Park.

(b) Where did the complainant and appellant meet on 19 February 1999?

42 The complainant gave evidence that she telephoned the appellant about the job from the train station in the afternoon of 19 February. The appellant said he would come around and pick her up and take her to his business and show her around because he needed to go to Bunbury the next day. She thought she was picked up at the Perth train station but was not sure.

43 The evidence of Constable Stoneman and Constable Wiseman was that the complainant told them she had met the appellant on the Sunday, again at Hyde Park. He had offered her a job and that they were going to her residence in Mt Pleasant.

(c) Did the complainant have consensual sex with the appellant before 19 February 1999?

44 In her examination-in-chief the complainant was asked the following questions:

"... at any stage prior to this time in the toilets did you have any kind of sexual contact with the accused?---No.

Did you talk about having any sexual contact with him?---No.

Was there any discussion about him paying for you for sex?---No.

Did you do anything like that with him?---No.

Did you want to have sex with him?---No."

"What did she say to you?---Yes. She told us that on Friday, 19 February she'd met a male person in Hyde Park and that - - -

... She claims that she had sex with this person in Hyde Park and that the sex was voluntary.

...

She claims that then she agreed to meet this person at a later date on Sunday, 21 February ... to discuss the possibility of working for him in his removal business."

46 Constable Wiseman's evidence was that the complainant had told him she had met a man in Hyde Park on the previous Friday and had consensual sex with him and agreed to meet him again on the Sunday.

(d) Did the complainant say that she was a prostitute?

47 In her evidence the complainant denied that she was a prostitute. She denied telling police officers that she was a prostitute. She told Constable Carson she was not a prostitute.

48 Constable Stoneman said that at the end of his conversation with the complainant she said she was a prostitute. Constable Wiseman also gave evidence that the complainant said she was a prostitute.

49 The complainant gave evidence that she was grabbed by the throat and hair inside the cubicle, pulled out, pushed really hard onto the ground, so hard that she hit her tail bone. The appellant hit her head against the ground a couple of times and was applying firm force to her throat which he later squeezed. She described the hitting on the head as follows:

"... He just grabbed the front of my hair and hit my head on the ground. ... three times. ... It was hard ... as hard as a person could, I suppose"

50 The effect was that she had headaches for a couple of weeks and the locum doctor attended her a couple of times.

51 On the following day the complainant attended SARC and was examined by Dr Payne. She was asked how she was feeling at the time of the examination by the doctor. Her response was:

"My tail bone was really sore. I couldn't sit down. My throat was sore. My knee was really sore. ... I had a bruise in between my legs. ... And there was a little bit of a lump, I think."

52 Dr Payne found tenderness to palpation on the outer aspect of the area above her left breast, tenderness of the lower back above the natal cleft, tenderness of both sides of the neck below and behind the left and right angles of the lower jaw.

53 There was a faint grey bruise just above the wrist on the thumb side of the left forearm.

54 In cross-examination Dr Payne gave evidence that she took notes of what she was told and what she would find on examination. In particular she noted any injuries that could be relevant to the examination. Dr Payne said the complainant did not tell her that her head had been bashed on the concrete floor. She said she had been pushed to the floor. She was not told that she had banged her knee. She could see no bruising to the back of the head and she was not told of tenderness to the back of the head and she discovered no injury to the back of the head. She explained that if someone had hold of the fringe of somebody's head and smashed it against the concrete floor three or four times, she would not always expect to see injury on the back of the head because of the hair it is:

"... sometimes very hard to see and I have seen a lot of people who have had their head bashed and it is sometimes very hard to see bruising on the back of the head."

(f) Did the complainant say there was attempted oral penetration?

55 The complainant, in the course of cross-examination, denied any attempt by the appellant to get her to give him oral sex. She did not tell the doctor that the next day and she thought the doctor was wrong. She was asked:

"If you had told the doctor that, that would have been a lie according too you, wouldn't it?---Yeah. I didn't tell the doctor that."

56 Dr Payne gave evidence in examination-in-chief as follows:

"Did she go into detail as to what the rape constituted? What sexual act?---She said he - what sexual act? It was penile vaginal penetration.

Did she complain of any other sexual act?---She said he attempted penile oral penetration but this did not occur."

57 Dr Payne confirmed this evidence in cross-examination.

(g) Did the complainant pass out after the incident?

58 In the course of her evidence the complainant gave the following answer:

"Whilst he was banging your head or squeezing your throat, what did you do?---I just - I felt like I was going to pass out and then I just pretended I was passed out so he would leave me alone."

"Did you faint at all?---No, I said I felt like I was about to pass out and I felt myself blacking out a couple of times."

She repeated that she felt herself passing out but she did not pass out. She did not fully black out.

60 In cross-examination the complainant acknowledged that in her statement to the police there was nothing about pretending to pass out.

61 The complainant had made several pages of notes prior to being interviewed by police. In those notes she wrote that:

"He slammed my head against the concrete three or four times until I passed out."

62 There were a number of other matters of less significance which amounted to prior inconsistent statements by the complainant. A statement made on a prior occasion which is inconsistent with the witness's present sworn evidence may have an effect upon the credibility of the witness or the reliability of the present evidence. Where the purported prior inconsistent statement is an oral statement, and is denied by the witness, there is a preliminary question as to whether the statement was in fact made. In the present case the oral inconsistent statements were led as part of the Crown case. The witnesses to the prior inconsistent statements in some cases were police officers, who corroborated each other and in another case the examining medical practitioner. Other inconsistencies arose out of prior written statements of the complainant.

63 Of course some prior inconsistent statements may have little bearing upon the credibility or reliability of a witness overall on the central issue.

64 Some of the prior inconsistent statements in the present case, however, go to the heart of the issue which was joined in the trial. The appellant's case, as advanced through the record of interview, was that the act of sex was a consensual act for which he paid a prostitute whom he had collected from Hyde Park.

65 The relevant prior inconsistent statements of the complainant were, in substance, that she was a prostitute who had been collected from Hyde Park. One statement was that the complainant and the appellant had previously engaged in consensual sex.

66 The previous inconsistent statements of a witness are tendered as evidence of inconsistency with testimony, not as evidence of truth of what is contained in the statement. The statements made to the police officers are not evidence that the complainant was a prostitute or that she had consensual sex, or that on the day in question she was picked up from Hyde Park. They do, however, place a substantial impediment in the way of accepting beyond reasonable doubt her testimony to the contrary because the statements made by her are of such a different character that a reasonable doubt as to the credibility of her account on oath may be entertained.

The events following the incident and the time taken to seek help

67 The complainant gave evidence that she was picked up by the appellant at the train station between 5 or 6 pm. They drove directly to the toilet block in Como.

68 The actual incident took only a couple of minutes.

69 After the complainant heard the appellant drive off, she waited 10 to 15 minutes before she came out.

70 In cross-examination it was put to the complainant that it was about 7.30 pm when she left the toilet block and she responded that that was probably right but she was not sure. She could not explain the 2-1/2 hour difference between the time that she placed for the event and the evidence of Mr Sawbridge.

71 Mr Sawbridge was the receptionist at the Broadwater Apartments. He saw the complainant about 10 pm.

72 His evidence as to time is confirmed by Kerry Whitham, the receptionist at the Broadwater Pagoda Hotel near to the apartments.

73 Even allowing for some variation in the complainant's recollection of events, there seems to be a considerable period following the assault which is unexplained. On the other hand, the appellant in his record of interview confirmed that he had received a telephone call from the complainant: "When I left ... she said 'where are you?' I said 'I'm on Canning Highway'." This call was made in the presence of Mr Sawbridge. If the appellant was telling the truth it would narrow the period of time between the incident and the telephone call considerably. However, the evidence of the gap in time is puzzling and, in the end, remains unexplained.

What the complainant may have told Mr Sawbridge

74 When Mr Sawbridge saw her the complainant she looked like she had been crying and, perhaps, intoxicated. He gave evidence of his conversation with her and a conversation which she then had on the telephone and which he overheard. Her first words were to ask to use the telephone. She opened her handbag and removed the business card which had apparently been given to her by the appellant earlier. She made a telephone call and spoke softly. She did get upset. She asked questions: "Where are you? Where did you go to?" At the end of the conversation she did not seem upset. Part of the discussion on the telephone which Mr Sawbridge overheard was to the effect that:

"... She had been out somewhere and she had lost the person she had been out evening with and she didn't look like she had a very good evening."

75 In cross-examination the following passage occurred:

"She told you, did she not, that she had been having a meal with somebody?---Yes.

And that she had been coming back from the toilet and he was not to be seen?---That's correct.

She asked you - was it after that that she asked you whether she could buy one of the bear bags?---Yes.

And at this stage she was still in a calmer mode than when you had seen her before?---Yes.

Because it was after the phone call that she seemed calmer?---Yes.

All right. Now, after you gave her the activity bag with the bears in, that was when she left the hotel, sorry, the apartments?---Yes."

76 The complainant was cross-examined about this evidence. She denied telling Mr Sawbridge she had been out for a meal and denied saying that after coming back from the toilet the man was no-where to be seen.

77 In her examination-in-chief the complainant was asked about the telephone call. She said she had the business card and rang the number but she did not know why. She was still shocked. The fact of the call was acknowledged by her. There seems no reason to reject the testimony of the prosecution witness Mr Sawbridge.

The complainant's first complaint to police

78 After she left Mr Sawbridge, the complainant went next door to the Pagoda Hotel. When she arrived she was sobbing and distressed and asked to use the telephone. The receptionist, Ms Whitham, called the police on her behalf and then the appellant took over the telephone. The telephone call was monitored and reveals the following conversation after the complainant took the telephone:

"CONSTABLE HYDE: What's the problem there Kim?

COMPLAINANT: Um. I was with this guy, he owns Cheap Removals and he pressured me into having sex and then when I went out because he was going to take me home.

CONSTABLE HYDE: What are you saying to me Kim?

COMPLAINANT: I don't know but he left me stranded.

CONSTABLE HYDE: You said he pressured you into having sex did he?

COMPLAINANT: Yeah.

CONSTABLE HYDE: Did you want to do that or not?

COMPLAINANT: No.

CONSTABLE HYDE: Tell him to stop?

COMPLAINANT: I don't know, I can't think at the moment now."

79 The receptionist had been told by the complainant that she was staying at a women's domestic violence centre in Mt Pleasant, had no money for a taxi home, and needed to get back before 11 pm or she would be locked out for the evening.

Conclusion as to events following the incident

80 There are a number of unexplained circumstances which give rise to concern about the complainant's credibility and the probability of her account. There is the unexplained delay before she made contact with other people. The telephone conversation with the appellant from the Broadwater Resort Apartments is troubling. The complainant has no explanation for it. On its face it appears to be inconsistent with the actions of a person who had been sexually assaulted by a near stranger sometime before.

81 The telephone conversation from the Broadwater Pagoda Hotel also has some inconsistencies with her evidence. This latter point may not of itself be overly significant. When Constables Stoneman and Wiseman attended the complainant did tell them in substance the account of the incident which she subsequently repeated in evidence. Having regard to her state, there may well be reasons why her initial account to the constable on the telephone is at variance with the statement made later. Nevertheless, it is at substantial variance with the account given later.

82 The task of the Court of Criminal Appeal is to conduct an independent review of the evidence to determine whether in all the circumstances it was open for the jury to return a verdict of guilty, giving due weight to the proper role of the jury in the criminal process and to the manifest advantage which it may have in observations of the witnesses.

83 In the course of this review, I have largely discounted the evidential material which came from the appellant. He made a series of untrue statements to the police, such that it would be open to a jury to entirely reject his account of consensual sex. The one part of his record of interview to which I have had regard is that relating to the telephone call to his car following the incident, because this call was admitted by the complainant and the substance of the call was effectively confirmed by Mr Sawbridge.

84 In order to convict the appellant, the jury was satisfied beyond reasonable doubt that the complainant was telling the truth and she was a reliable witness when she said that the incident of sexual penetration occurred without her consent. Part of the circumstances surrounding the consent involved her evidence of the bodily harm she had suffered, bodily harm which in the main was not supported by the examination of Dr Payne. The jury was not able to be satisfied as to this important part of her evidence. In the factual circumstances of this case, the acquittal on the circumstance of bodily harm seems inconsistent with a general acceptance of the complainant's testimony as to consent.

85 The complainant's evidence was the subject of a number of significant inconsistencies which have been detailed. Additionally, her evidence of her behaviour following the incident, and in particular the time delay, and the telephone call to the appellant, renders her account of lack of consent less certain.

86 In all the circumstances, I conclude that there has been a significant possibility that the appellant has been wrongly convicted. A verdict may be able to be supported in a general way and yet still be not reasonable: Mickelberg v The Queen [1984] WAR 191. The verdict of this jury, although able to be supported in a general way, was not reasonable having regard to all the evidence. Consequently, I would allow the appeal on ground 1.

"2. The learned trial judge erred in law in failing to adequately direct the jury about the application of the burden and standard of proof to their consideration of the applicant's explanation of events to investigating police as recorded in a video record of interview.

Particulars

(a) The learned trial judge did not give a proper 'Liberato direction', as explained by the Court of Criminal Appeal in Myles v The Queen [2000] WASCA 364.

(b) This was because her Honour did not direct the jury that even if they did not positively believe the applicant's explanation, they could not make a finding on an issue contrary to the evidence if it gave rise to a reasonable doubt on the issue, (Transcript 230).

(c) The jury were, in error, not directed to consider the possibility they may find the complainant a generally truthful and reliable witness and not positively believe the applicant's explanation, but nevertheless were left with a reasonable doubt about consent."

88 A Liberato direction, so called, refers to a passage of the judgment of Brennan J in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 at 515:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

The popularity of the use of the expression "Liberato direction" should not obscure the fact that Brennan J was in dissent in the case.

89 Mason ACJ, Wilson and Dawson JJ refused special leave. They noted that the court below had reached its conclusion after an examination of the summing-up as a whole and of all the evidence given at the trial. They refused leave in part because:

"No question of law is involved and ... this Court is merely being asked to substitute for the view taken by the Court of Criminal Appeal a different view of the evidence and of the effect of the summing up."

90 In Miles v The Queen [2000] WASCA 364, Miller J discussed the Liberato direction. He referred to Latham v The Queen [2000] WASCA 57 and Middleton v The Queen [2000] WASCA 200. Before concluding at par 49:

"It can therefore be taken that it will be necessary in cases which turn on a conflict between the evidence of a prosecution witness and that of a defence witness to tell the jury that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if it gives rise to a reasonable doubt as to that issue. ..."

"In all the circumstances, the Judge should have given a direction in terms of Liberato...."

92 The particular passage of the trial Judge's directions under consideration in Latham did not follow the terms of Liberato. At the outset of the hearing of the appeal in Latham the Crown took the view that if the court accepted the construction of the direction as urged by the appellant, the direction would demonstrate a fundamental error.

93 The Crown conceded that part of the direction was clearly wrong in law.

94 In those circumstances, Malcolm CJ said at par 13:

"It appears that the learned Judge did not appreciate that he had not told the jury that even if they positively disbelieved the accused they still could not convict him unless the Crown had satisfied them of his guilt beyond a reasonable doubt. In my opinion ground 3 was made out."

95 In Middleton Miller J noted that on the hearing of the appeal counsel for the Crown conceded the jury were not told, firstly, that if they preferred the evidence of the prosecution they should not convict unless they were satisfied beyond reasonable doubt of the truth of that evidence and, secondly, that even if they did not positively believe the evidence adduced on behalf of the accused, they could not find an issue against the accused contrary to that evidence that the evidence gave rise to a reasonable doubt. It was conceded that the circumstances of the case were not unlike those in Latham. Miller J reached the view that the ground of appeal under consideration in Middleton had therefore been established. Kennedy and Wallwork JJ agreed with Miller J in Middleton.

96 In Miles, Wallwork J agreed with certain passages in Miller J's judgment but did not deal with this particular question. Murray J took a different view from Miller J. He conducted an analysis of Liberato, saying at par 14:

"In my opinion it is clear that Brennan J was not intending to lay down any particular addition of principle to the form of direction required in relation to the onus and standard of proof, but was seeking to make it clear that if the directions of the trial Judge included observations about conflicting evidence, care should be taken to avoid any observations which might compromise the clarity and effectiveness of the directions of law on the onus and standard of proof."

97 His Honour analysed the decisions in Latham and Middleton before concluding at par 17:

"In my respectful opinion the nature of the directions to be given about the onus and standard of proof will depend upon the particular circumstances of the case, the evidence relied upon by prosecution and defence, and the way in which that evidence is discussed, if at all, and commented upon by the trial Judge ..."

98 I would, with respect, adopt Murray J's analysis of the authorities which is more detailed than I have, for convenience, merely sketched.

Is a Liberato direction required as a matter of law?

99 It is a counsel of prudence to give a Liberato direction in most, if not all, cases. It is a sensible direction which further emphasises the standard and the burden of proof.

100 The absence of a Liberato direction in an appropriate case will make the drawing of a conclusion that there has been a miscarriage of justice easier.

101 Nevertheless, if in Miles at par 49 Miller J was intending to lay down a principle that a Liberato direction is required as a matter of law, then with great respect, I am unable to agree. I prefer the reasoning of Murray J.

102 The absence of a Liberato direction may give rise to a miscarriage of justice. In each of Latham and Middleton, the absence of a Liberato direction, coupled with positive directions given by the trial Judge in each case, meant that the Judge's summing up, overall, constituted a misdirection.

103 I would not elevate a Liberato direction to the status of a principle of law, the absence of which will inevitably lead to a conclusion that the learned trial Judge has erred in law.

104 I turn to the actual direction given in this case.

105 At the commencement of the trial, and before the Crown opened the case, the learned trial Judge briefly outlined the onus and standard of proof in term which are unexceptional.

106 In her directions to the jury, her Honour repeated and amplified directions as to the burden and standard of proof.

"In this case because of the presumption of innocence and because the prosecution bear the burden, even if you decided that one thing might be more likely, one account of what occurred might be more likely, you can't convict the accused man unless you are satisfied beyond reasonable doubt that the account that the complainant has given you in court is a truthful and accurate account in relation to the essential aspects of this offence, and of course the issue, the main issue in this case, is the issue of consent, so it's very important that you bear that in mind at all times."

"All of those things have got nothing to do with what you have to determine here which is simply, are you satisfied and are you satisfied beyond reasonable doubt that the prosecution have proved to you each and every element of this charge and, of course, the main issue in this case is the issue of consent which I think is probably quite obvious."

109 At the conclusion of her address, counsel raised some matters but did not seek a Liberato direction.

110 In the circumstances of this case, I do not consider that the summing up, taken as a whole, left the jury in any doubt as to the issue which had to be determined or misdirected them in any way. I do not consider that the absence of a Liberato direction caused any miscarriage of justice.

111 In consequence I would not uphold this ground of appeal.

112 I would allow the appeal. The consequence of allowing the appeal in respect of ground 1 is that the conviction is quashed with no order for a re-trial.