44 There was, however, an abundance of evidence to support the Crown case that the appellant was not prepared to allow the complainant to leave the premises. According again to the complainant's evidence, the appellant had already made it clear that he could be violent towards her. There was his statement that he would have thrown her from the train the day before when she had called the co-accused a child molester if he had not liked her so much (see par [7] supra). He had also already made it clear that he was not going to allow her to leave the premises. When she had first asked to leave, he had shouted at her that she was not going anywhere, and that she was going to be dead anyway (see par [8] supra). Depending on the reliability of her recollection of the sequence of events, he had also at that stage threatened to cut her toes off whilst holding the bolt cutters and opening and shutting the blades (see par [8] supra). Later, he chased her with the lighted blowtorch (see par [10] supra).
45 What then did this evidence add to the Crown case other than the information that the appellant had been in gaol, and therefore had a criminal record? The Crown did not provide a satisfactory answer to this question. It has argued that material which the jury were entitled to regard as discreditable, and according prejudicial, was disclosed to the jury in any event - that the appellant and his co-accused had picked up the complainant knowing that she was a prostitute, the appellant had had sexual intercourse with her, they had shared heroin the next day and had then consumed intoxicating liquor together. The fact that the appellant had left gaol five days earlier, the Crown has submitted, has not been shown to have "substantially increased" any prejudice already suffered by that evidence. Nor has the failure of the appellant's counsel at the trial to object to the reference to his incarceration in gaol been shown to have created a "significant possibility" that the evidence affected the outcome of the trial, or that it was not a "perfectly reasonable" forensic decision on the part of counsel.
46 I do not accept that in this day and age the conduct of the complainant and the two men would have produced the prejudice it may have many years ago. No one has suggested that this was a Sunday school picnic. It is difficult, however, to imagine more damaging evidence in a jury trial beyond the direct and circumstantial evidence of the crime than the fact that an accused has a criminal record. In Dawson v The Queen (1961) 106 CLR 1, Dixon CJ said (at 16):
It is the thesis of English law that the ingredients of a crime are to be proved by direct or circumstantial evidence of the events, that is to say, the parts and details of the transaction amounting to the crime, and are not inferred from the character and tendencies of the accused.
In exercising the discretion to exclude such evidence, he said (at 16):
[…] it became necessary to consider whether the interests of justice were not best served by excluding evidence of the accused's convictions or bad character in order that his guilt should be judged on the facts of the case and not upon the propensities which his past disclosed or the prejudices his character or career might engender.
Although the Chief Justice was in dissent in the disposal of that appeal, the first passage was quoted with approval by the majority in Phillips v The Queen (1985) 159 CLR 45 at 55, and his statements of principle were said (at 50-51) to have been held to have been "entirely consistent with the trend of authority". Deane J, who dissented in Phillips , said (at 60) that the long experience of the common law is that evidence in a jury trial of the criminal record of the accused is "liable to besmirch justice with the ugly stain of prejudice or prejudgment", and (at 63) that it introduces "a substantial risk of unfair prejudice".
47 Earlier, in Hall v Braybrook (1955) 95 CLR 620, Dixon CJ referred (at 629) to the general rule that a tribunal of fact should not be informed of the accused's criminal record, bad character or antecedents before that tribunal pronounces a finding of guilt. That general rule, the Chief Justice said (at 628), had become a principle which pervades the law governing the conduct of criminal proceedings, and all concerned in the criminal law are highly sensitive to any infringement of that principle "because of the prejudice to the issue of guilt which is thought inevitably to ensue". The Chief Justice concluded (at 629) that this traditional principle protects an accused from the undue prejudice which "must" be derived from that knowledge. In the same case, Fullagar J said (at 648) that this principle was fundamental to the administration of criminal justice, and that a breach of that principle means that any conviction obtained cannot stand. In Regina v Knape [1965] VR 469, the Full Court of Victoria (Winneke CJ, Pape & Starke JJ) said (at 472) that the law has long recognised the prejudicial effect of such evidence, and that it is "calculated to render a fair trial improbable".
48 My own experience in relation to criminal trials is that the effect of any reference to the criminal history of the accused remains the same today. If the evidence had been objected to at the trial in the present case, the proper balance in this case in my opinion was that the evidence should have been rejected in accordance with s 137. That is not to say that my view is the only one possible. The trial judge, had he been asked to reject the evidence, may for example have said that the evidence could be edited so that it satisfactorily conveyed the appellant's fear that he would be in more serious trouble than might otherwise have been the case if the complainant reported the incident to the police, without disclosing that he had a criminal record. I am not sure myself how that could have been done, but I recognise the possibility that it could have been done. There was already evidence given according to some such arrangement (see par [9] supra). But I am satisfied that the prejudice caused by evidence that the appellant had a criminal record necessarily outweighed the probative value of that evidence to the Crown case, notwithstanding the evidence of what the jury were entitled to regard as antisocial behaviour by the appellant. There was no justification for allowing the fact that the appellant had been in gaol to go before the jury.
49 If it be assumed that, over objection, the evidence of the complainant's evidence would have been admitted by the trial judge without any editing, it would clearly have been a rational or reasonable decision for counsel for the appellant to have elicited evidence as to the reason for his client's incarceration - that it was only for two weeks, and it followed a conviction for shoplifting. However, in my view it would have been unwise to do so, as that evidence inevitably suggests that the complainant's evidence of what the appellant said to her was true.
50 But I can see no possible rational or reasonable explanation at all for the tender of virtually the whole of the appellant's criminal record. Proof that the appellant had no record of violence against women did not require the other details of what his record contained. It would have been sufficient to have asked Det Sen Const Draper whether, in the course of his investigations, he had found that the appellant had no record of convictions for violence against women. Nor can I see any possible rational or reasonable explanation for the extraordinary emphasis counsel placed in his cross-examination of Det Draper, and in his final address to the jury, on (i) the length of the appellant's record ("a fair amount of reading", "this fairly extensive record" and "a very long document containing his record"), (ii) his lack of success in crime ("a failed crim"), (iii) his propensity for "street offences" and (iv) his description as a "property crim".
51 The other possible explanation for the tender of the evidence of the appellant's criminal record was that it demonstrated his good character in a particular respect, in accordance with s 110(3) of the Evidence Act. By the absence of any record for violence against women in his criminal record, it was suggested, it was unlikely that he would have acted in the way the complainant had alleged. There are currently differences in judicial opinion as to whether the mere absence of convictions establishes good character making it unlikely that the accused committed the crime charged: compare Regina v Aziz [1996] AC 41 at 51, Regina v Falealili [1996] 3 NZLR 664 at 667, and Melbourne v The Queen (1999) 198 CLR 1 at [108]. It is unnecessary in this case to resolve those differences of opinion. It is sufficient to say that the mere absence of any record of violence against women does not to my mind suggest very strongly that it is unlikely that the appellant acted in the way the complainant alleged, particularly in the light of the three convictions he had for offences of violence.
52 Whatever value the evidence may have had, however, it was of little if any benefit to the appellant in the light of the other material brought out by his counsel. Section 110(3) permitted the appellant to raise his character in only one particular respect if he wished to do so, and the effect of the other material brought out by counsel for the appellant was to swamp whatever small benefit the absence of convictions for violence against women may otherwise have had. Moreover, the effect of that benefit was seriously reduced by the fact that Det Sen Const Draper was unable to confirm the absence of such convictions in Western Australia, where it appeared that the appellant had spent some time, a fact to which counsel gave unnecessary emphasis in his final address (see par [37] supra). The judge, with the agreement of the parties, went as far as he could go in his directions to the jury in saying that the effect of the officer's evidence was, "as far as Det Draper knows", the appellant had no such convictions in Western Australia.
53 In my opinion, there was no rational or reasonable explanation for the whole course of conduct by counsel for the appellant in eliciting the appellant's criminal record in the way he did, and that conduct necessarily caused the trial to be unfair. As will be seen when consideration is given to the second ground of appeal, the complainant's evidence presented some problems for the Crown case, and the conduct of counsel lost to the appellant a chance fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514; Wilde v The Queen (1988) 164 CLR 365 at 371-372. There was therefore a miscarriage of justice.
54 There is one other relevant issue mentioned by counsel for the appellant at the trial to which reference should be made. He suggested at one stage (although he never returned to it) that, if he cross-examined the complainant about the drugs she took and the alcohol she consumed during the time she was in the apartment in order to show that her evidence was unreliable as a result, his client could be cross-examined on his record. Such a suggestion misstates the effect of s 104 of the Evidence Act. That section prevents cross-examination of the defendant in a criminal proceeding on matters relevant only to his credit without leave, and it provides that leave must not be granted unless the defendant has adduced evidence either (a) of his own good character or (b) of the tendency of a Crown witness to be untruthful where the evidence is relevant solely or mainly to that witness's credibility.
55 Dealing with the alternative (b) first, s 104 also provides that evidence of the witness's conduct adduced by the defendant does not include evidence of the witness's conduct in relation to the events about which the defendant is being prosecuted, so the appellant here was not at risk of cross-examination on his record if the complainant were cross-examined in the way proposed. As to alternative (a), the trial judge, in determining whether to grant leave, is required by s 192 to take into account, inter alia, the extent to which that cross-examination on that criminal record would be unfair to the defendant and the importance of the defendant's criminal record to the Crown case. This task was closely examined by the High Court in Melbourne v The Queen (referred to in par [51] supra). It is clear from what I have already said that this would not have been an appropriate case in which to grant such leave.
56 It follows from my conclusion that counsel's conduct at the trial caused a miscarriage of justice that the appellant is entitled to have the verdicts against him quashed. The circumstances in which this miscarriage of justice occurred do not permit the proviso to s 6 of the Criminal Appeal Act 1912 to be applied. The Crown did not suggest otherwise. Normally, this would lead to an order for a new trial. The appellant's second ground of appeal seeks to avoid such an order being made, to which I now turn. If that ground is successful, the appellant is entitled to have a judgment and verdicts of acquittal entered.
57 Ground 2 - Unreasonable verdict
This ground of appeal asserted that "[t]he verdict was unsafe and unsatisfactory". It has been clear since at least 2002, when MFA v The Queen (2002) 213 CLR 606 was decided (if it was not clear before), that the appropriate ground of appeal attacking the quality of the evidence leading to the conviction should be stated in the terms of s 6(1) of the Criminal Appeal Act , that the verdict was unreasonable. The appeal has been dealt with on the basis that the ground of appeal should be interpreted in that way.
58 Where this Court is asked by an appellant to exercise its power under s 6(1) of the Criminal Appeal Act, it must make its own independent assessment of the evidence, and then consider whether, notwithstanding that as a matter of law there was evidence to sustain the jury's verdict, it was nevertheless open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty, paying full regard to the circumstances that the jury is the body entrusted with the primary responsibility of determining the issue of guilt and that they had the benefit of having seen and heard the witnesses. This Court must be satisfied that the evidence on which the Crown case relied was cogent and unequivocal, and that it was not inherently implausible. Where the evidence appears on a reading of the record to contain discrepancies, display inadequacies, or lack probative force, its apparent lack of credibility may in many cases be explained by that advantage enjoyed by the jury. But, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, this Court is entitled and obliged to act on its own assessment of the nature and quality of the evidence if it is satisfied that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: Knight v The Queen (1992) 175 CLR 495 at 503, 511; M v The Queen (1994) 181 CLR 487 at 492-495; Gipp v The Queen (1998) 194 CLR 106 at [18], [128], [169]; MFA v The Queen at [25], [30], [48], [55]-[56], [59].
59 The complainant's evidence, as suggested earlier (in par [52] supra), presented some problems for the Crown case. Her recollection was at best variable, and her concentration when giving evidence was uneven. The trial judge formed a strong view that her evidence lacked cogency because of its inconsistencies in relation to a number of matters, that she had made assumptions rather than seen matters to which she had referred, and that this showed that her evidence was unreliable rather than dishonest. Attention was drawn to her assertions that the blowtorch was used and that it was lit when it was used; that the co-accused was standing guard at the door with a baseball bat; that both accused had threatened to kill her; and that a gun had been produced. (The judge appears, with respect, to have been confused as to the state of the evidence in that particular trial in relation to the blowtorch.) There was also the fact that, notwithstanding her assertion that she had been unhappy to remain in the apartment, the complainant stayed with the two men for almost twenty-four hours after she had had sexual intercourse with the appellant, and had not departed even when they went to purchase some beer (see pars [4]-[6] supra).
60 It was these matters which persuaded the trial judge to give a Prasad direction. Such a direction takes its name from Regina v Prasad (1979) 23 SASR 161, in which King CJ was dealing with a submission that a trial judge had a discretion to direct the jury to give a verdict of not guilty if the judge considered that the evidence for the prosecution was so unsatisfactory it would be unsafe to convict on it. In rejecting that submission, the Chief Justice said (at 163) that it would be contrary to law if there was evidence to support a conviction. He continued:
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings.
The context makes it clear that the situation in which the Chief Justice thought it was appropriate to give such a directions was where, although there was evidence to support a conviction, the quality of the evidence was such that the jury would be likely to reject it.
61 In Regina v Pahuja (1987) 49 SASR 191, the trial judge had given a Prasad direction which occupied seventeen pages of the transcript. King CJ said (at 201):
The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case.
In that case, it seems, there was no more than the normal and expected conflict between the evidence of the complainant and that of the defence witnesses. Cox J said (at 218):
There are two things that I would say about the procedure that was followed in this case. First, any Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction - usually some serious weakness in the Crown case that has emerged during his presentation. I think, with respect, that this direction was far too long. Secondly, it seems to me that this was not a proper case for a Prasad direction at all. The typical occasion for it in any sexual case will be the discrediting of the complainant in the witness box - admitted lies or plain contradictions or vacillations - or important contradictions with other Crown witnesses. No doubt there may be other occasions for its use as well, but they are the obvious ones.
Johnston J agreed with what had been said by King CJ and Cox J.
62 The judge followed closely what was said in those cases. There were no addresses, and only short legal directions. As stated earlier (at par [15] supra), the jury returned a verdict of not guilty for the co-accused on both charges, but they indicated that they would like the case against the appellant to continue.
63 On behalf of the appellant it has been submitted on appeal that, although the co-accused did not physically do more than smash the complainant's mobile telephone and thus prevent her seeking help (see par [9] supra), and put his hand over her mouth to stop her screaming when the appellant was choking her with the studded leather dog collar (see par [11] supra), he was nevertheless a party to a joint criminal enterprise to detain the complainant and to arm the appellant with the bolt cutters and a lighted blowtorch with intent to assault her. It is difficult to see any evidence that the incidents with the bolt cutters and the blowtorch fell within the joint criminal enterprise, or that they were contemplated by the co-accused as possible incidents of its execution, but it is clear that he at least aided and abetted the appellant in relation to those incidents. The two were clearly "in company", the aggravating feature of the charge of detain for advantage. In finding the co-accused not guilty of both charges, the appellant says, the jury must have rejected the complainant's evidence on the basis that it was unreliable.
64 I do not accept this argument. In my opinion, the cause of the seemingly inconsistent results of the Prasad direction arose from the circumstances in which that direction was given. This was a case in which some explanation of the Crown case of a joint criminal enterprise, and of the two accused acting in company, was vital to the jury's understanding of the part played by the co-accused. The Crown prosecutor in his opening address did very briefly outline in conceptual terms how his case relied on a joint criminal enterprise: see Regina v Tangye (1997) 92 A Crim R 545 at 556. That, however, happened a week before the Prasad direction was given. As suggested in Pahuja, the judge did not give any directions of law which explained the conceptual basis of the Crown case.
65 It is clear, in my opinion, that the jury acquitted the co-accused because it had not been explained to them how the part he played in the various events which took place in the apartment made him criminally responsible for the actions of the appellant. The very experienced counsel appearing for the appellant in this appeal very properly conceded that this was perhaps correct. If follows from my opinion that the seeming inconsistency in the results of the Prasad direction disappears.
66 This case demonstrates the danger of giving a Prasad direction in circumstances where there may be a problem for the jury in understanding the real nature of the Crown case. In some cases, it may be possible for the direction to be expanded to make it clear how the Crown put its case, but it seems to me that to do so really negates the whole purpose of this procedure, which is premised on the jury being able, without the assistance of the trial judge or counsel, to judge the cogency of the evidence on which the Crown relies - without addresses and without a summing-up.
67 In my opinion, the evidence of the complainant received some support from (a) the complaints she made as soon as she left the apartment in her 000 call and subsequently that evening to the police, and (b) the location of the gas cylinder, the studded leather collars and the bolt cutters in the appellant's apartment. With due respect to the views expressed by the trial judge, the defects in the complainant's evidence to which attention has been drawn do not demonstrate to my satisfaction that her evidence was so unreliable that is was not open to the jury to accept her evidence. Those defects were not such as to be unexplained by the jury's advantage of having seen and heard the complainant give her evidence.
68 I would reject the second ground of appeal. I propose that the following orders be made:
1. The appeal is upheld and the conviction is quashed.
2. A new trial is to be held.
69 SIMPSON J: I agree with Hunt AJA.
70 ROTHMAN J: I have had the advantage of reading the reasons in draft of Hunt AJA and I agree with those reasons and the orders proposed.
71 ORDERS:
(1) The appeal is upheld and the conviction is quashed
(2) A new trial is to be held.