Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Tests - Whether the jury would have returned the same verdict - General principles - Assuming, but not deciding, prosecution failed to disclose to defence certain evidence, no miscarriage of justice resulted.

Mraz v R [1955] HCA 59; (1955) 93 CLR 493; R v Storey [1978] HCA 39; (1978) 140 CLR 364; Wilde v R [1988] HCA 6; (1988) 164 CLR 365, referred to.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Fresh evidence - Availability at trial, materiality and cogency - Generally - Assuming, but not deciding, there was fresh evidence, its admission at trial would not have been likely to have affected result.

Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Lawless v R [1979] HCA 49; (1979) 142 CLR 659; Askeland v R (1983) 18 A Crim R 102; TKWJ v R [2002] HCA 46; (2002) 133 A Crim R 574, referred to.

Judgment Number: [2003] TASSC 91

LUKE JAMES SMITH, B R M and NATHAN LEIGH MADDEN v THE QUEEN

LUKE JAMES SMITH, B R M and NATHAN LEIGH MADDEN v THE QUEEN

1 Each of the appellants was found guilty of one count of forcible abduction and four counts of rape. It was the Crown case at trial, that all the crimes were committed at Launceston on 25 November 2001 between about 5am and 5.45am. The Crown case was that all three appellants forced the complainant into a motor vehicle which was then driven a short distance to a carpark. It was alleged that the appellant Smith raped the complainant four times, twice anally, once vaginally, and once orally, and that the other two appellants aided and abetted him to do so. Upon their convictions, the appellants were sentenced to substantial terms of imprisonment. These appeals are brought against those convictions.

2 The complainant was a 21 year old woman who worked at the checkout counter of a Woolworths' supermarket. She shared a flat with her sister, her sister's boyfriend, Shaun, and another girl, Brigit. On Saturday, 24 November 2001, the complainant finished work at 6.30pm and went home. Shortly afterwards she went to her grandfather's birthday party. She went with her sister, Shaun, Brigit and a close friend of the family, who was staying at the complainant's flat that weekend.

3 The group of young people stayed at the party for a short while and then returned to the complainant's flat. Later, they were joined there by some friends of the complainant. The complainant and her friends had made a prior arrangement to go out together that night and in accordance with that arrangement, they left the flat about 11pm in two cars .

4 The complainant and four of her female friends were dropped off at Lloyds Hotel. The five young women then visited a number of other hotels in turn. At each place they danced and consumed alcohol. At one of the hotels, the complainant met a young man, Clinton Ewart. Although she had not previously met Clinton Ewart, he was known to two of the complainant's friends.

5 Eventually, the group, including Clinton Ewart, moved to the CBD nightclub located in the Avenue between St John and Brisbane Streets, Launceston. About 4.45am in the morning of 25 November 2001, the complainant was, as she said in her evidence, "tired and drunk and wanted to go home". She and Clinton Ewart left the nightclub together. Film from a camera over the door of the nightclub which was shown to this Court, but not at trial, shows that for a brief moment as they walked away from the door, the complainant put her arm around Clinton Ewart and he put his arm around her.

6 The complainant's evidence was that she and Clinton Ewart walked up the Avenue in an easterly direction towards its intersection with George Street. They intended to go to a shop called "Busters", as the complainant wanted to buy some cigarettes. This shop was almost opposite the Royal George Hotel in George Street. In the vicinity of a greengrocery to which I shall refer in a moment, they crossed over the Avenue and walked up to its intersection with Brisbane Street.

7 After buying the cigarettes, the complainant and Clinton Ewart left Busters and walked into York Town Square. There, the complainant telephoned her sister's boyfriend, Shaun, and asked him to pick her up and take her home. It was agreed between them that Shaun would drive into town from the flat in Ernest Street (Kings Meadows) and pick up the complainant from outside a shop in the Avenue called "Red Herring". This shop is situated on the northern side of the Avenue, not far from its intersection with George Street. Next door, on the George Street side of the Red Herring, there is a pharmacy. Directly outside the pharmacy is the last parking bay before the intersection with George Street for traffic travelling east along the Avenue. Adjoining the pharmacy, again on the George Street side, is a greengrocery. Outside the greengrocery there is some fixed seating, presumably errected by the Launceston City Council as part of the street furniture in the Avenue.

8 After making the arrangement with Shaun to be picked up outside the Red Herring, the complainant and Clinton Ewart left York Town Square via its Brisbane Street entrance and walked down Brisbane Street towards its intersection with George Street. The pair crossed over George Street. When they got to the other side, or shortly afterwards, Clinton Ewart asked the complainant to come back to Busters with him as he wanted to get a drink. The complainant said that she did not want to go back, so Clinton Ewart told her to go and sit on the seats and not move until he returned. Clinton Ewart turned and went back towards Busters and the complainant sat on the seats outside the greengrocery.

9 The complainant's evidence was that not long after she had sat down, she heard someone call out from a car parked in the last parking bay before George Street, "Mel, come here. I'm taking you home to meet Shaun". I shall refer to these words as "the alleged invitation".

10 The complainant said that she could not think who said that and so she went over to the car to find out. She said that the back door was open and the front passenger window wound down. Her evidence was that as soon as she got to the car, the person sitting in the front passenger seat told her to get in the car so they could take her to meet Shaun. She said that she told him "Get fucked, I'm not getting in the car" but moved a little closer to see if she could recognise the person in the front passenger seat. She said that as she leaned forward, the front door opened and she was pulled by the arms over the passenger in the front seat. She said at the same time, somebody pushed her from behind and then that person got into the back seat of the car. The complainant said that she was pinned face down across the front seat passenger and the driver, with her head on the driver's lap. She said that she was taken to the carpark outside Theogines Health Centre where the crimes were committed.

11 There was no dispute that the three appellants were the occupants of the car, and there was no dispute that sexual intercourse between the appellant Smith and the complainant occurred at Theogines' carpark. Although none of the accused gave evidence at trial, videotaped interviews between each of them and police officers were played to the jury. The appellants' cases were that the complainant, a stranger to all of them, approached their car while it was parked in the parking bay, got in willingly, and later was a willing participant in all the sexual activity that took place that night at Theogines' carpark.

12 The appellant Smith told police officers in the course of his interview that, in effect, he had very little recollection of the relevant events because of the amount of alcohol that he had consumed. The appellant M was the driver of the car and, according to him, he had had no alcohol that night. He said to the interviewing police that he saw the complainant and her companion walk past his parked car and shortly afterwards the former came back by herself and approached the car. He said that no one called her over to the car. The appellant Madden said to the interviewing police officers that he got out of the parked car to go to Busters to buy some cigarettes. He said that when he came back, he saw "some chick hanging in the window with [the appellant Smith]". He said that this girl and Smith were kissing and she then got into the front of the car and the appellant M drove off.

13 The appellants told police that at Theogines' carpark, the complainant willingly engaged in sexual activity with the appellant Smith.

14 As amended, the notice of appeal in each case contained four grounds. Ground 2, unsafe or unsatisfactory verdict, was abandoned. With respect to grounds 3 and 4, Mr Roland Browne, counsel for all appellants, put the following propositions to support his submission that the convictions should be quashed and new trials ordered:

1 There was evidence from which it could be inferred that none of the appellants could have overheard the conversation between the complainant and Clinton Ewart as they walked up the Avenue from the CBD nightclub to Busters, and therefore, could not have known that the complainant was called Mel and could not have known that she had just arranged for someone called Shaun to pick her up.

2 This evidence, to which I will refer shortly, comprised images visible on an enhanced video film taken by a street camera erected in the Avenue opposite the Quadrant.

4 It was not adduced at trial because it was not reasonably discoverable before trial, or, if it was reasonably discoverable, the prosecution was in breach of the duty of disclosure it owed the defence by failing to disclose the existence of this evidence prior to trial.

5 Had this evidence been adduced at trial, it is likely that the jury would have concluded that the complainant made up her account that she approached the car as a result of the alleged invitation and this would have so damaged her credit that it is likely that the jury would not have found the appellants guilty of the count of abduction and/or the three counts of rape.

6 Consequently, there had been a miscarriage of justice.

15 The complainant's evidence was that as she and Clinton Ewart walked up the Avenue to go to Busters after leaving the CBD nightclub, Clinton Ewart teased her about being a "checkout chick". She said that as they were walking, "I told him I was going to ring Shaun to come and get me to take me home".

16 Like so many of the young people involved in this case, Clinton Ewart's evidence was to the effect that he had no useful memory of the relevant events because of the alcohol he had consumed that night.

17 Evidence was adduced on the hearing of the appeal that at the time the crimes were allegedly committed, four closed circuit television cameras were in operation in the Avenue/George Street area, viz:

* outside the front door of the CBD nightclub (camera 2F);

* in the Avenue opposite the Quadrant (camera 2C);

* at the intersection of George and Brisbane Streets/the Avenue (camera 2B) - this camera was pointing north down George Street; and

* in George Street, in the vicinity of the Royal Hotel (camera 2A) - this camera was pointing towards Busters and the intersection of George and Brisbane Streets/the Avenue.

18 No camera took pictures of the area where the alleged abduction took place. Film from camera 2F (not played at the trial) established that the complainant and Clinton Ewart left the CBD nightclub at 4.44am. The film shows them disappearing from view at 4.45am. Film from camera 2A (played at trial) shows the complainant and Clinton Ewart entering Busters at 4.46am and leaving the shop at 4.50am. According to the complainant's evidence, she and Clinton Ewart then turned into York Town Square, she used the telephone and then they left via the Brisbane Street exit and walked back towards the Avenue and the Red Herring shop. Film from camera 2A shows that at 4.54am the complainant and Clinton Ewart crossed George Street and headed towards the Avenue. The same film shows Clinton Ewart running back across George Street towards and past Busters at 5am. Nearly two minutes later, Clinton Ewart is shown entering Busters and a minute after that, leaving it again. Film from camera 2C, the alleged fresh or undisclosed evidence, shows the appellants' car turning into the Avenue from St John Street at 4.55.54am.

19 Thus, if it is accepted that 4.55.54am was the first time that the appellants' car entered the Avenue that morning, it would have been impossible for any of the appellants to have heard any conversation between the complainant and Clinton Ewart as they walked from the CBD nightclub to Busters, as the latter arrived at the shop nine minutes before the appellants' vehicle entered the Avenue. It was not contended by the Crown that the appellant Smith or, for that matter, either of the other two appellants, could have learnt that the complainant was called Mel and that she was going to meet Shaun other than by overhearing a conversation between the complainant and Clinton Ewart whilst they were in the Avenue.

20 Upon the hearing of the appeal, evidence was adduced, and argument addressed, upon the issues of whether film from camera 2C constituted fresh evidence and/or whether the prosecution had a duty to disclose its existence to the defence before trial, but failed to do so.

21 The evening of the day the alleged crimes were committed, all three appellants were interviewed by the police and it then became apparent that the identity of the alleged assailants was unlikely to be an issue at trial. The only likely issue was consent. Within a few days of the alleged commission of the crime, the police examined the four relevant close circuit television films and made notes of what could be seen on them. Before the committal proceedings, the solicitors for the appellants were advised:

"The street video surveillance film is at the Launceston Police Station. To view the videos please contact Det Sgt R King to make the necessary arrangements."

22 A solicitor representing the appellants went to the police station and saw two films, one from camera 2A and one from camera 2B. Whether he was then aware of, or was told about, film from cameras 2F and 2C was the subject of disputation upon the evidence given on the hearing of the appeals.

23 Shortly before the appeals were scheduled to come on for hearing, the appellants instructed their present solicitors to act for them. Those solicitors carefully examined all the close circuit television films. By that time, film taken from camera 2C could not be seen without enhancement due to wear and the passage of time. The film was enhanced and the enhancement tendered in evidence on the hearing of the appeal. This is the film that shows the appellants' car entering the Avenue from St John Street at 4.55.54am, nine minutes and three seconds after the complainant and Clinton Ewart entered Busters.

24 Assuming that the circumstances surrounding the film from camera 2C are such that it constitutes fresh evidence, the appellants are only entitled to new trials if it is shown that it is likely that there would have been verdicts of acquittal on one or more or the charges had the jury seen that evidence, accepted it as being film of the appellants' vehicle entering the Avenue at 4.55.54am and considered it together with all the other evidence adduced at trial. See Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Lawless v R [1979] HCA 49; (1979) 142 CLR 659; Askeland v R (1983) 18 A Crim R 102; TKWJ v R [2002] HCA 46; (2002) 133 A Crim R 574. With respect to the claim that the prosecution was in breach of its duty to disclose material to the defence by not disclosing either the film from camera 2C or the notes of the police officer who examined it shortly after the occurrence of the relevant events, it should be noted that the prosecution's duty to disclose material evidence is a duty owed to the court to enable the court to ensure that the accused gets a fair trial. See Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 at 339 - 341. The duty of a prosecutor with respect to calling evidence was summarised in R v Apostildes [1984] HCA 38; (1984) 154 CLR 563 at 575. That duty extends to the disclosure of written evidence, for the overriding obligation of the prosecution is to assist the court to ensure that the accused obtains a fair trial. See Richardson v R [1974] HCA 19; (1974) 131 CLR 116 at 119; Clarkson v DPP [1990] VicRp 65; [1990] VR 745 at 755. The circumstances that call for the disclosure of evidence will vary from case to case. See R v Charlton [1972] VicRp 90; [1972] VR 758 at 761- 762; R v TSR [2002] VSCCA 87 pars72 - 74. Assuming that the film from camera 2C was evidence that the prosecution was obliged to disclose to the appellants, and assuming that the prosecution failed to do that (propositions that were very much in issue upon the appeal), the appellants are only entitled to new trials if it is shown that the failure to disclose the film resulted in a miscarriage of justice in the sense that such failure resulted in "a chance which was fairly open to [each of the appellants] of being acquitted", per Fullagar J in Mraz v R [1955] HCA 59; (1955) 93 CLR 493 at 514. See also R v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376; Wilde v R [1988] HCA 6; (1988) 164 CLR 365 at 371 - 372.

25 I find it unnecessary to make any findings of fact relevant to the issues of whether the film from camera 2C amounts to fresh evidence, and whether it constitutes evidence that the prosecution had a duty to disclose to the defence prior to trial. Upon the assumption that the film did constitute fresh evidence, I am well satisfied that had it, and for that matter, film from camera 2F (collectively referred to as "the new evidence"), been shown to the jury, and had the jury accepted the former as film of the appellant's vehicle entering the Avenue at 4.55.54am and considered it together with the other evidence adduced at trial, it is unlikely that the verdicts would have been any different. Further, assuming that the prosecution was in breach of its duty to make disclosure of the film and/or the notes of the examining police officer, the appellants have clearly failed to establish that such failure resulted in the loss of a chance that would have been fairly open to them of being acquitted.

26 Had the new evidence been admitted, it is likely that the jury would have concluded that the appellants could not have overheard the conversation between the complainant and Clinton Ewart as they walked from the CBD nightclub to Busters. However, the jury would have been likely to have found from the new evidence that whilst the appellants' vehicle was parked in the Avenue, its occupants would have been able to overhear any conversation between the complainant and Clinton Ewart during the four to five minutes that elapsed after the two had crossed George Street and before Clinton Ewart turned and ran back to Busters. Film from camera 2A captured the pair crossing George Street at the traffic lights at 4.54.25am and film from the same camera captured Clinton Ewart running towards and past Busters at 5.00.22am. Film from camera 2C recorded the appellants' vehicle entering the Avenue from St John Street, a little more than a minute after the complainant and Clinton Ewart started to cross George Street. It is therefore extremely likely that the complainant and Clinton Ewart reached a point in the Avenue close to where the appellants' car was parked at about the same time as it came to a stop in the last parking bay. Indeed, upon the trial against the appellant M, this scenario is confirmed by his statement to the police that he saw the complainant and her companion walk past the parked car and then she came back to it alone.

27 There was no cross-examination of the complainant about what, if any, conversation there was between her and Clinton Ewart after she had telephoned to arranged for Shaun to pick her up. In her evidence-in-chief, the complainant said that Clinton Ewart wanted her to go back to Busters with him, but she said she did not want to do that. It is not at all unlikely that at the same time she said she was going to wait for Shaun to take her home.

28 The appellants were separately represented at trial. No counsel directly put to the complainant that she was untruthful when she said that she heard the alleged invitation. To Mr Brett, counsel for the appellant Smith, she confirmed her evidence-in-chief and said that she was "dumbfounded" when she heard the alleged invitation. Mr Stephenson, counsel for Madden, asked no questions about the alleged invitation. Ms Jago, counsel for M, put to the complainant that she was in the area outside the greengrocery for about 14 minutes and that during that time she went up to the car, introduced herself, shook hands with the occupants, and then sat on the lap of the front seat passenger (the appellant Smith) and started kissing him.

29 The only witnesses who knew whether the alleged invitation had been made were the complainant and one or more of the appellants. In his interview, the appellant M said that nobody called the complainant to come over to the car. As mentioned earlier, the appellant Smith told the police that he had very little memory of the relevant events, but had since been told "that she came and approached us and I can't remember exactly how ... she got in the car or where we drove ... but I remember we went up to um a car park, we didn't know which car park until today, and um had sex up there". The appellant Madden said that the complainant was already at the car when he returned to it after buying cigarettes. The new evidence does not tend to prove that the alleged invitation was not made. At the trial, the evidence suggested that there were two opportunities for the appellants to have overheard a conversation between the complainant and Clinton Ewart while they were together in the Avenue. The new evidence eliminates one of those two opportunities, not both of them.

30 With respect to the complainant's conversation with Clinton Ewart, it may be noted that in her cross-examination, the complainant agreed that when she had been drinking she became "rather loud." In his address to the jury, Mr Coates SC submitted that the appellants could have heard that the complainant was called Mel and that she was going to ask Shaun to pick her up either on the way to Busters (as he was then unaware of the new evidence) or on the way back. He said:

"The complainant gave evidence that the person in the front seat, Mr Smith yelled out, Mel, we will have to take you - Mel, we will take you to Shaun. Well it may be suggested, well how did Mr Smith know her name and how does he know Shaun is coming to pick her up. Well, you don't have to be a rocket scientist to work that out. The complainant says she was talking to Clint on the way down to Busters about ringing Shaun. Similarly you don't expect her to remember everything that was said on that evening. Similarly they are in that avenue, you might think for some six minutes on the way back. Clearly he has told her that he wants to go back to Busters. She said he wanted to go back for a drink. Clearly we know he went in there. He obviously - possibly wanted to go to the toilet and he told her to go and wait. Well he could have easily used her name - Mel. She could have easily said no, I am going to wait till Shaun" [sic].

31 Mr Coates followed that with a reference to the complainant's evidence that she was dumbfounded when she heard the alleged invitation and said:

"If she is lying, ladies and gentlemen, do you think she would come up with a story that these strangers that she hadn't met knew her name and knew she was going to be picked up by Shaun. Do you really think she would come up with that story. She could have said a number of different things. They yelled something out, she went over to see what they were saying. Well, they just come across and grabbed her. I suggest if she was lying it would be a ridiculous lie to make up and she would know it because she said she was dumbfounded and she also told, when she was extremely upset, that is what they said."

32 In his closing address, Mr Brett did not suggest that the complainant's evidence about the alleged invitation was false. He put to the jury that Crown counsel relied on that evidence to show that the commission of the crimes, particularly the crime of abduction, indicated a high level of planning on the part of the accused. He submitted that such high level planning was unlikely, having regard to the drunken state of the appellants Smith and Madden. Later, he suggested to the jury that "it was clutching at straws ... to suggest that Mr Smith has been able to overhear some conversation between [the complainant] and Clinton Ewart". Mr Brett then said, "she has to explain how she gets over to the car".

33 Mr Stephenson drew attention to a relatively minor discrepancy between the complainant's account at trial of the alleged invitation and the account of the alleged invitation that a recent complaint witness said the complainant had given him shortly after the commission of the crimes.

34 Ms Jago submitted to the jury that the complainant said that her conversation with Clinton Ewart was on the way up to Busters and it could not possibly have been heard by the appellants who were then sitting in a car with music playing on the opposite side of the road. Ms Jago referred to her client's interview with police when he said that the complainant told him that she was a checkout chick. Ms Jago submitted to the jury that the complainant must have said this as the appellant M said she did, otherwise he would not have known that fact and further, that her telling the appellant M that, was inconsistent with her account of being repeatedly and brutally raped. Ms Jago said with respect to the complainant's evidence of the alleged invitation:

"I'd suggest to you ladies and gentlemen, that the conversation that you've heard about is a reconstruction that's been offered to you to explain what is otherwise inexplicable."

35 So one way or another, it was put to the jury on behalf of the appellants that they should not accept the complainant's evidence of the alleged invitation. Had the jury seen the new evidence, the same submission would have been put to them, but with the added force that if the conversation with Clinton Ewart about getting Shaun to pick up the complainant and take her home had taken place on the way up to Busters, as she said it did, it could not have been overheard by the appellants and she must be untruthful about it. On the other hand, had the jury seen the new evidence, the Crown would have still been able to put the suggestion put to them in the alternative by Mr Coates, namely, that the appellants could have overheard conversation between the complainant and Clinton Ewart after they had been to Busters.

36 The whole trial revolved around the credit of the complainant. The issue of whether the alleged invitation was made was only one, relatively small, aspect of the issue of the complainant's credit as a witness. Her evidence was strongly supported in many important respects. She said that after she had been pulled into the car, it drove off. She said that she raised her head off the driver's lap and saw Clint Ewart coming back from Busters. Film from camera 2B shows him doing this at 5.02.52. The complainant said that she "yelled" to Ewart but her head was pushed down. She said that the three men in the car were laughing and "they" said that they were going to take her somewhere and "fuck [her]". She was driven to the carpark at Theogines Health Centre.

37 The complainant said that at the carpark, the driver (the appellant M) and the rear seat passenger (the appellant Madden) got out of the car, opened the front passenger side door and pulled the complainant's trousers down to her ankles. She said that they pulled her around to the rear of the car. She was crying and swearing. The complainant said that she was then held face down over the boot of the car by the appellant M and the appellant Madden, while the front seat passenger (the appellant Smith) anally raped her. She said it was painful and she screamed. The other two appellants cheered and clapped. She said that those two appellants then moved to the front of the car and five times she tried to get up and five times her head was "slammed" down onto the car.

38 The complainant said that when the appellant Smith stopped anally raping her, he spun her around so that she fell onto her hands and knees. She said the appellant Smith then picked her up and put her in the back seat of the car, leaving the door open. He then raped her vaginally while the other appellants shouted encouragement.

39 The complainant said that when the appellant Smith stopped raping her, the other two appellants pulled her out of the car. One of her shoes was off and one leg was out of her trousers. She said that the appellants M and Madden again took her to the rear of the vehicle where the appellant Smith again anally raped her as she was held over the boot of the car. She was crying and hysterical. The appellant Smith said "I hope it hurts" and slapped her thigh. The complainant said that when the appellant Smith stopped anally raping her, she fell to the ground and again the other two appellants picked her up and put her in the back of the car. She said that the appellant Smith got in the back with her and the other two got in the front seats. She said that the appellant Smith forced her to take his penis in her mouth and the next thing she could remember was being in her driveway. She was unable to recall giving directions about where she lived.

40 In her evidence-in-chief, the complainant said that as she was being driven off from the Avenue, she kicked out with her feet against the front passenger door. Evidence was led that a speaker in the front passenger door and a plastic surround at the bottom of the front passenger seat was broken. In his interview with police, the appellant Smith, the owner of the motor car, said that it had been like that since he bought the car 13 months earlier. Renee Mackie, a friend of the appellant Smith, said that she had been in his car several times before the night the alleged crimes were committed and had driven it. She said that the last time she had been in the car was about eight weeks before that night and she did not think that the front passenger door speaker was damaged then. Kelly Medcraft, a friend of Renee Mackie, said that she had been in the car three or four times before the night the alleged crimes were committed. She described the car as "immaculate" and said that there was no damage to the front left passenger door. The man from Used Cars Motors who sold the car to the appellant Smith, said that if the speaker had been broken when he had it, it would have been repaired before being sold. The previous owner gave evidence that apart from a "fine fracture", unnoticeable except on very close inspection, the speaker in the front passenger door was undamaged when he sold the car to Used Cars Motors.

41 Misses Mackie and Medcraft saw the appellants Smith and Madden on the night the crimes were alleged to have been committed. Ms Mackie said that about 2.15 that morning, the appellant Smith called her on her mobile phone and asked her to go to Busters in George Street and pick him up. She and Ms Medcraft drove into town. By arrangement, they met the appellant Smith outside the Princess Theatre in Brisbane Street. Because of traffic in the street, they drove around the corner into Earl Street. The appellant Smith was with the appellant Madden. The female witnesses described both men as very drunk. The two appellants talked about lesbians, and "having sex with girls up the arse". They mimed doing just that while leaning against the outside of Ms Mackie's car. The appellant Smith said that if he were at home with his girlfriend he would be "having sex with her up the arse".

42 The evidence was that the appellants asked Misses Mackie and Medcraft to drive them around town, but Ms Mackie said that home was the only place she would take them. After a little while, the parties separated in circumstances that do not require detailing for present purpose.

43 The complainant's account was strongly corroborated by the medical evidence. She was examined by Dr Wivell at the Launceston General Hospital at about 9am on the morning the alleged crimes were committed and again the following day at 5pm when bruising was more evident. Dr Wivell holds a diploma of obstetrics and gynaecology and said that she had been examining victims of sexual assault for some 14 years. The complainant was distressed and dishevelled looking and crying on and off during the first time she was seen by Dr Wivell. The following findings were made on examination:

* Tenderness just below the base of the neck, posteriorly.

* A 1.5 centimetre swelling to the right side of the forehead that was consistent with having been caused by banging her head against "anything".

* A 4 x 1.5 centimetre bruise on the left side of the complainant's neck. Its shape was such that Dr Wivell opined that the most likely explanation for this bruise was pressure from a thumb applied from behind.

* Two 1 centimetre bruises on the upper right arm. Dr Wivell's opinion was that a typical cause of bruises like these two is fingertip pressure.

* A 1 centimetre bruise on the front of the left upper thigh.

* Tenderness to both knees which had brown dirt on them. There was also brown dirt on the back of both legs below the knees.

* A 4 x 1 centimetre bruise on the front of her right shin.

* Two 1 centimetre bruises and one 1 x 1.5 centimetre bruise on the back of the right arm.

* Two small grazes and swelling accompanied by tenderness to the middle upper back.

* A 4 x 1 centimetre bruise on the right lower back.

* Three centimetre opposing bruises inside both buttocks, not visible unless the buttocks are separated. Dr Wivell's opinion was that the bruises were consistent with having been caused by a penis pushed "with considerable force".

* Two anal fissures, one at one o'clock and one at seven o'clock. Dr Wivell said that they could have been caused by anal intercourse which would have been "very painful" if continued after the fissures had been caused.

* Blood in the top of the vagina which was likely to have been due to trauma.

44 There was evidence from the people who shared the complainant's flat that when she came home she was extremely distressed, hysterical, crying and screaming. Her trousers were torn and her underpants fell out when she shook her trousers. They were "covered" in blood. The complainant was difficult to understand. She kept on saying that she was sore and that "they just wouldn't take 'no' for an answer." The complainant was taken to hospital in an ambulance. The evidence of those witnesses was in stark contrast to the account each of the appellants gave to the police of the complainant willingly engaging in sexual acts with the appellant Smith and getting out of the car at her flat in good spirits after kissing the appellant Smith goodbye.

45 The new evidence concerns only one small aspect of the credit of the complainant and had the jury heard it, they would not necessarily have concluded that her credit in that small respect was adversely affected because of the opportunity that the appellants, or some of them, had to overhear conversation between her and Clinton Ewart just before he ran back to Busters. Further, in the light of the strong corroborative evidence that I have just outlined, it cannot be said that the absence of the new evidence resulted in the loss of a fair chance of an acquittal on any of the counts, nor can it be said that had the jury heard the new evidence it is likely that one or more of the verdicts would have been different. Grounds 3 and 4 are not made out in my view.

46 Ground 1 claims that a miscarriage of justice arose out of the following passage taken from the summing up of the learned trial judge:

"The Crown, I think, would also rely on how likely is it that a woman would voluntarily do what happened on this night, such as voluntarily engaged in anal sex with a stranger in the company of two others. And how many of the women who would voluntarily do that, who would consent to that, then consensually take the man's penis into her mouth for an extended period, after both anal and vaginal sex? I have no doubt you will reflect on that."

47 The complaint with respect to that passage in the summing up was that it invited the jury to reason in an impermissible manner. The argument was that the Evidence Act 2001, s194M(6)(b), prohibited questioning the complainant about her sexual disposition without leave of the Court, and the comment made by the learned trial judge invited the jury to make an assumption about the sexual disposition, viz, that she was a person not disposed to do the things to which the learned trial judge referred. In my view, the comment does not invite any impermissible reasoning process. Mr Browne conceded that it was more than likely that every member of the jury would ask themselves the very same question that the learned trial judge posed. The comment does not invite the jury to assume anything at all. The jury would apply their collective common sense and experience of life to ponder the likelihood of a young woman, whose sexual disposition was entirely unknown to them, engaging in the sexual activity to which his Honour referred. Some members may well have thought that as they knew nothing about the complainant's sexual disposition, it is impossible to speculate on the likelihood of her doing that sort of thing, and others may have thought that it was, as a matter of general common sense, extremely unlikely that she would have willingly engaged in such sexual conduct. In any event, even if the jury mistakenly understood the learned trial judge to have been asking them to make an assumption as to the sexual disposition of the complainant, he made it very clear to the jury that it was their opinion on matters of fact that counted, and not his when he directed them in the following terms:

"Now as I said to you, I will be making some observations about the evidence, but I have no wish to indicate to you how I would decide this case if I was a juror, so please understand that. If you think there is any slant in my summing up when I observe matters of evidence, well I am not intending to give you any slant at all because my policy is not to - to do what I can to avoid indicating to the jury how I would decide the case. So please understand that."

48 Further, the complaint made by ground 1 of the notice of appeal was raised by counsel with the learned trial judge during a break in the summing up. In consequence of submissions made to him, the learned trial judge further directed the jury in the following terms:

"This will only be brief, ladies and gentlemen. I'm going to make a further comment about - arising out of a comment I made to you in the course of my summing up, and I raised with you the question whether - well, the likelihood of whether a woman would participate in anal sex with a complete stranger in the presence of two other men who are also strangers and then indulge in oral sex after anal sex has been committed. The point has been made to me, 'well, yes, but the jury doesn't know anything about [the complainant] herself - we don't know anything about her prior experience, sexually or otherwise and who knows what she might or might not agree to.'

Now, I will simply make this additional comment to you so you understand. The law is that counsel - both sides of the case - are prohibited from calling evidence or asking a complainant anything about her prior sexual experience. So they would have been prohibited if they'd tried from asking her questions about whether she had had experience of anal sex and the like, before. The law, generally speaking, would prevent that kind of question being asked. In the same way, the Crown is also prevented from asking about not having had any experience before either. So generally speaking, evidence of prior sexual experience of lack of it is a 'no no', so you should take my comment about the likelihood of a woman agreeing to do these things in that context - do you understand? Okay, thank you very much. Thank you - retire."

49 Any possible misunderstanding that the jury might have entertained would have been dispelled by that further direction. Ground 1 is not made out in my view and I would dismiss the appeals.

LUKE JAMES SMITH, B R M and NATHAN LEIGH MADDEN v THE QUEEN

50 I have had the opportunity of reading in draft form the reasons for judgment of the learned president in this appeal and agree with both his reasoning and conclusions. I would dismiss the appeals.

LUKE JAMES SMITH, B R M and NATHAN LEIGH MADDEN v THE QUEEN

51 I agree that these appeals should be dismissed, for the reasons stated by Underwood J.