Ugle v The Queen

This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia dismissing an appeal by Linton Dale Ugle against his conviction on two counts of sexual penetration of a girl under the age of sixteen years. The counts charged two acts of sexual intercourse with the one complainant during the afternoon of 14 March 1988. The complainant was then aged fifteen years and nine months. The applicant was aged eighteen years. The factual contest at the trial was whether the complainant had consented to the acts of intercourse.

The complainant, who now lives in France and does not intend to return to Australia, did not give evidence at the trial, but did make a statement to investigating police fourteen days after the events in issue. The trial judge concluded that that statement was admissible under s. 107 of the Evidence Act 1906 W.A., but exercised his discretion to exclude the statement on the basis that its prejudicial effect outweighed its probative value. Evidence was admitted, over objection, from Sarah Jane Morgan that, at about midnight on 14 March, she visited the complainant who was then alone at her home. According to Miss Morgan the complainant told her "I've been raped". It was conceded in this Court that this evidence was inadmissible. The basis of the admissibility of evidence of complaint on the trial of a sexual offence has been variously stated at different times. In Kilby v. The Queen [1] , Barwick C.J., in a judgment in which McTiernan, Stephen and Mason JJ. agreed, reviewed the various bases on which such evidence was said to be admissible and concluded that "the admissibility of that evidence in modern times can only be placed upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence" [2] . On that basis, which by reason of the concession was not the subject of any debate before this Court, evidence of complaint goes merely to the credit of the complainant and it follows that such evidence is not admissible unless there is evidence from the complainant. See Kilby [3] , per Menzies J. See also Sparks v. The Queen [4] ; Whitehorn v. The Queen [5] , per Murphy J. and per Deane J. [6] .

1. (1973) 129 C.L.R. 460. 2. (1973) 129 C.L.R., at p. 472. 3. (1973) 129 C.L.R., at p. 474. 4. [1964] A.C. 964, at p. 979. 5. (1983) 152 C.L.R. 657, at p. 661. 6. (1983) 152 C.L.R., at pp. 666-667.

Had the concession that Miss Morgan's evidence was inadmissible been made in the Court of Criminal Appeal, the applicant's appeal must have been allowed unless, in terms of the proviso to s. 689(1) of the Criminal Code W.A. ("the Code"), the Court considered "that no substantial miscarriage of justice [had] actually occurred". However, at that stage the admissibility of Miss Morgan's evidence was still in issue. The Court of Criminal Appeal divided on that question. Brinsden J. held that the evidence was not admissible, but that its admission caused no substantial miscarriage of justice; Pidgeon J. held the evidence admissible and so had no occasion to consider its effect on the trial; Rowland J. held it inadmissible and would have allowed the appeal. Thus only two members of the Court of Criminal Appeal, each reaching a different conclusion, considered whether the improper admission of the evidence occasioned a substantial miscarriage of justice. In effect, there was no decision by the Court of Criminal Appeal on what is the central issue raised by the present application.

The concession that Miss Morgan's evidence was inadmissible makes a determination of the question whether the trial of the applicant involved a substantial miscarriage of justice essential to a proper disposition of an appeal against conviction. As that question was not finally determined by the judgments delivered in the Court of Criminal Appeal, it remains to be determined. The jurisdiction of the Court of Criminal Appeal is exhausted and the question would remain undetermined unless special leave be granted and an appropriate order be made by this Court. Of necessity, the case must attract the grant of special leave to appeal to open the way to that essential determination. Special leave is required in the interests of the administration of justice: see s. 35A(b) of the Judiciary Act 1903 Cth. The question cannot be remitted to the Court of Criminal Appeal to make the determination unless the order of that Court is set aside and it would not be right to set that order aside unless this Court is satisfied that it was wrongly made. To be so satisfied, this Court must itself determine whether there was no substantial miscarriage of justice. The case is unusual because the concession that evidence was wrongly admitted was not made until after the Court of Criminal Appeal had divided on that issue. To determine whether no substantial miscarriage of justice occurred and thus to determine whether the appeal should be allowed, it is necessary to analyse the evidence.

As previously mentioned, there was no evidence from the complainant at the trial. We interpolate here that, in our view, the trial judge correctly excluded the statement of the complainant to the investigating police officers. Although s. 107 of the Evidence Act, in conjunction with the relevant provisions of the Justices Act 1902 W.A., rendered such a statement admissible, it could only be in a very exceptional case that a trial judge would fail to exclude such evidence on the basis that its prejudicial effect would outweigh its probative value where it was sought to be tendered on the trial of a matter raising a "defence" of consent. Apart from the inadmissible evidence given by Miss Morgan, the only evidence touching a lack of consent was to be found in confessional material comprising statements to the police and a record of interview made by the applicant. That confessional material contained an account of events which, leaving aside the question of consent, apparently coincided with the account given by the complainant to investigating police. That evidence was consistent with a lack of consent, but was not wholly inconsistent with a belief on the part of the applicant that consent was given. The applicant also gave sworn evidence in which he acknowledged the making of the statements and the record of interview, but said he had given the answers that he thought the police wanted because he was frightened. The record of interview contains a statement which indicates that the applicant was frightened when the police came to the complainant's house to arrest him. His presence at the complainant's house at the time of arrest, as explained in the record of interview and uncontroverted by other evidence, was the result of the applicant having arranged, by telephone, to visit her at her home, though the complainant alerted the police to the proposed visit and this led to the applicant's arrest. The applicant's sworn evidence relating to the matters charged was that sexual intercourse occurred after the complainant initiated a conversation concerning sexual matters and expressly invited sexual activity.

The inadmissible evidence of Miss Morgan brought about a trial which was significantly different from that which would have taken place had the evidence been properly confined. Not only did that evidence contain the complainant's assertion that she had not consented (an assertion which the applicant could not test), but the jury was invited by the trial judge to have regard to the evidence on the basis that, although it did not confirm "the sexual assaults", there was "a consistency about the complainant's story to Sarah Jane Morgan and to the police which [was] more likely to be true than false". Additionally, by reference to evidence of complaint made to investigating police (which evidence was not objected to) and to the record of interview, the case was left to the jury on the basis that the prosecution claimed that the complainant's account was before the jury "because what she had to say is contained in the record of interview which was fairly put to the accused ". It may be noted in relation to this latter matter that the trial judge did not instruct the jury that police evidence of complaint was not evidence of its truth or that what was put to the applicant by police was not evidence of what the complainant had alleged. Having regard to the limited nature of the admissible evidence on the question of consent, it is impossible to say that the wrongful admission of Miss Morgan's evidence, the invitation to use it in the manner indicated and the absence of appropriate qualification of the prosecution's assertion that the complainant's account was before the jury did not operate to deprive the applicant of "a chance which was fairly open to him of being acquitted": Mraz v. The Queen [7] , per Fullagar J. The proviso to s. 689(1) of the Code is therefore inapplicable.

Once the evidence of Miss Morgan is excluded from consideration, the only evidence of lack of consent is that contained in the confessional material. While the record of interview contains no clear admission that the complainant was not a consenting party, there are statements from which a known absence of consent may be inferred. In particular, there are references to the applicant pushing the complainant on to the bed, to the complainant struggling while the applicant was on top of her and to the complainant's statement that she had A.I.D.S. It is true that in the course of his evidence the applicant placed the reference to A.I.D.S. in a different context. But these are matters for a jury and this Court is not justified in substituting its own conclusions as to the evidence. There should be an order for a new trial, though it will be for the Crown to determine in the circumstances whether to proceed further.

Special leave to appeal should be granted, the appeal should be allowed, the convictions quashed and a new trial ordered.