W v R [2006] TASSC 52

Weiss v R [2005] HCA 81; (2005) 80 ALJR 444, followed.

Criminal Law - Evidence - Evidentiary matter relating to witnesses and accused persons - Evidence of sexual experience, reputation and morality - Credibility - Character.

Evidence Act 2001 (Tas), ss102, 104(2), 110, 112.

Judgment Number: [2006] TASSC 52

1 Appeal allowed as to the conviction on count 8 and the sentence.

2 Conviction on count 8 quashed and the sentence quashed.

4 The appellant be remanded on bail to appear for sentencing on the convictions on counts 3, 4 and 14.

5 The publication of the reasons for judgment is confined to the parties until the final disposal of count 8.

1 The appellant was tried on an indictment alleging 14 counts of rape and assault said to have occurred on identified occasions between 9 August 2003 and 1 February 2004.

2 The appellant and the complainant were married in November 2002. Between 28 January and 1 February 2004, a series of incidents occurred at their home which culminated in a complaint to police of criminal conduct and the eventual charging of the appellant with the acts stated in the indictment. All of the events were said to have occurred within the family home. Particulars of each count and the verdicts returned by the jury were:

3 The appellant was sentenced to a term of imprisonment for 4 years and 6 months with a non-parole period fixed at 3 years upon his convictions of one count of rape and three counts of assault.

4 The appeal against conviction concerns directions required for standards of proof, the required jury process of reasoning, legislative amendments to the definition of consent and a discretionary exercise in the reception of evidence. The respondent seeks the application of the proviso if any identified grounds are upheld. The appeal against sentence is made on the basis that the sentence was manifestly excessive.

5 Ground (1A) of the notice of appeal claims error in that:

"(1A) That the Learned Trial Judge erred in her directions to the jury concerning the standard of proof

PARTICULARS

(i) the Learned Trial Judge instructed the jury that they did not have to be one hundred per cent satisfied that the accused was guilty;

(ii) the directions as to the standard of proof taken as a whole were such as to be likely to cause uncertainty or confusion to the jury as to the meaning of Her Honour's direction."

6 At the commencement of the trial, the learned trial judge advised the jury of the respective roles of counsel, the trial judge and the jury. She told the jury that:

"Mr W has been placed in your charge. ... what that means is that you will be the ones to make a decision on the facts that you hear about whether he his guilty or not. You will be the sole finders or decision makers in relation to the facts in this case. That is not my role it is yours.

...

However, what you very clearly need to understand is that the accused has no obligation at all to give evidence in this trial or call witnesses. It is for the State to prove its case it is not up to the accused to defend himself or prove to you that he is not guilty. So he need say absolutely nothing if that's what he chooses to do. And if he makes that choice then there is no - nothing bad you should find about his making that choice, he is entitled to do that as of right."

7 The jury was provided with a written memorandum which was used in the course of the summing up. Relevantly it stated:

"(a) An accused person is innocent unless and until the jury is satisfied beyond reasonable doubt as to his guilt.

(b) The State has the burden of proving the guilt of the accused beyond reasonable doubt. An accused person does not have to prove his innocence.

(c) The jury may not convict the accused of a crime unless it is satisfied beyond reasonable doubt of all of the necessary elements required to constitute such crime."

8 In her summing up, the learned trial judge correctly directed the jury in relation to the presumption of innocence and stated the question to be answered by the jury as:

"Am I satisfied beyond a reasonable doubt that he is guilty of each particular charge?"

She then directed the jury in the following terms:

"... given the presumption of innocence it follows that the State has the obligation of proving beyond a reasonable doubt the guilt of the accused. It's a very simple proposition in the sense that the State alleges something it has to prove it. It is not and has never been up to the accused to prove that he is innocent; he never had to do that. He did not have to give evidence in this trial, he chose to do so. He did not have to give the interviews to the police that he did, he chose to do so. So he has to prove nothing. The State must satisfy you beyond a reasonable doubt as to their case.

Now I've referred to the phrase 'reasonable doubt' a few times. It doesn't mean you have to be one hundred percent satisfied the accused is guilty. If you have considered all the evidence however and you have a doubt in your mind as to his guilt and having regard to the evidence that you've heard you believe that doubt is quite a reasonable one he's entitled to the benefit of that, there's no question about that. A reasonable doubt is also something that each of you have to individually consider. You're not a committee, even though you've being sitting there together, all twelve of you, for the last week or so, you're not actually a committee, it's not a, you know, a majority view necessarily prevails, you each have to consider the evidence. You each have to examine in your mind that concept of reasonable doubt and come to a conclusion."

9 The direction was in accordance with the decision of this Court in Graham v R [2000] TASSC 153. Graham concerned a direction which suggested a testing of any doubt or an analysis through reasoning of its validity, an approach disavowed by the High Court in Green v R [1971] HCA 55; (1971) 126 CLR 28. It is the process of objective analysis which is prohibited. In Green, the court said at 32 - 33:

"A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial : to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. 'It is not their task to analyse their own mental processes' : Windeyer J, Thomas v The Queen (1960) 102 CLR, at p 606 . A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes ...".

10 The court used the term "entertain" which was likewise used by King CJ in R v Wilson (1986) 42 SASR 203. In his reasons for judgment in Graham (supra), Underwood J (as he then was) considered the use of the words "examine" and "test" used together and concluded that their combined effect, in the context of the direction, amounted to an error. His conclusion at par68 was that:

"Although the reference to the individual juror's conscience, heart and mind in the concluding words was unobjectionable, the reference to 'testing' reinforced the earlier direction that a reasonable doubt was something that must be examined or tested. The effect of the impugned passage in the summing up was to direct the jury that a reasonable doubt was to be contrasted with a fanciful or far fetched doubt, that if they entertained a reasonable doubt they must examine and test it by the application of individual consciences, hearts and minds, to ensure that the doubt was a reasonable one and not a fanciful or far fetched one."

Here the direction was directed towards "something that each of you have to consider", and the evidence was for "each ... to consider". It was in that context that the concept of reasonable doubt was to be examined in the mind of each juror. The jury was not directed that the task was one of "a process of analysis or evaluation for the purpose of determining ... quality" (R v Pahuja (1988) 49 SASR 191).

11 The second critique advanced in support of these grounds is misconceived. The direction did not include a numerical requirement or estimate of probability, (R v Cavkic Athanasi and Clarke [2005] VSCA 182). The learned trial judge quite succinctly stated that such was not the approach. The ratio of Cavkic was stated by Charles JA in his reasons at par2, namely:

"The trial judge was faced with a very difficult problem when the jury asked their question as to the definition of 'reasonable doubt'. The question showed that some member or members of the jury may have been considering the accused's guilt on the basis that they were '70% or 80% sure', an approach which would have been completely mistaken, and might have led to an accused being convicted of murder in circumstances amounting to a very serious miscarriage of justice. It may be that some jurors were drawing a contrast to the civil standard of proof, to which the judge had properly, by way of comparison, drawn their attention. His Honour was plainly mindful of High Court authority, eg, Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 31 - 33, that trial judges should avoid further explanation or elaboration of the definition of 'reasonable doubt' and his purpose in what was said in response to the jury's question was to focus their attention once more on the conventional directions he had given in his charge. Those directions had, however, previously left the jury or one or more of them, in a state of mind which had led to the asking of the question and the judge's response was, with respect, unfortunately not an answer to that question. Nor did it directly disabuse any of the jury labouring under the mistaken view implicit in the question. The judge's redirection, therefore, may well have left a juror or jurors still in the belief that it was proper to approach the issue of guilt beyond reasonable doubt by reference to a percentage ratio."

12 In Cavkic the trial judge had been reluctant to make any reference to the word "percentage" in response to the matter raised by the jury. The answer given by the trial judge was [217]:

"You have a question which is, 'Could I define reasonable doubt?' And I will answer it in this way. It is not the practice of the courts to further define the expression of 'beyond reasonable doubt', but you will understand the expression in this context.

First, the prosecution has the burden of proving against each accused the charge brought against each accused, of murder. The prosecution has that burden. An accused person does not have to prove he or she is innocent. The prosecution has to prove he or she is guilty. That is the starting point, ladies and gentlemen. The burden of proof is on the prosecution, not just in this case, but in every criminal case, from beginning to end.

Second, the standard of the proof required is proof beyond reasonable doubt.

In a civil case, ladies and gentlemen, for example, a claim for damages after a motor car collision, all that a plaintiff, the claimant, has to do, is to prove her or his case is more probable than not for the plaintiff to succeed. That is in a civil case.

In a criminal case, which this is, the prosecution has the burden of proving the charge beyond reasonable doubt.

It is quite insufficient for the prosecution to prove its case merely on the balance of probabilities. It has the burden of proving the case beyond reasonable doubt. Beyond reasonable doubt is the highest standard known to the law.

So, that is the standard of proof required to prove murder in a criminal case, ladies and gentlemen.

As I have said to you previously, the prosecution does not have to prove beyond reasonable doubt every detail or every step in the story or solve every riddle beyond reasonable doubt. But what the prosecution does have to prove beyond reasonable doubt are the essential elements of the crime charged, and I have set those essential elements out for you on your law sheet, bearing in mind my direction I have previously given you about inferences, which I will not repeat, ladies and gentlemen, but I have already given you those directions.

So, bearing in mind my directions to you previously given about inferences, the prosecution has to prove beyond reasonable doubt the essential elements of the crime charged, set out on your law sheet. That is the highest standard known to the law, and they are ordinary English words. Juries act on them every week, ladies and gentlemen, and I think that is really all I can usefully say to you in answer to your relevant question."

13 In his reasons, Vincent JA found the redirection to be insufficient to dispel any misconceptions held by one or more of the jurors, and stated, at par215:

"... that the judge appears to have been under the impression that any response in which the word percentage was used would be problematic, presumably either because the jury might consider that an appropriate percentage for the purposes of the standard could be fixed by them or by inadvertently conveying the idea that there was some objective standard or particular process of reasoning to be applied or because he was apprehensive that anything that he said might be perceived by an appeal court as creating an unacceptable or confusing gloss on the concept of proof beyond reasonable doubt. All of these possibilities were the subject of legitimate and thoroughly understandable concern on the part of a very experienced trial judge who appreciated that the situation had to be very carefully handled."

14 In concluding that the direction given was inadequate, his Honour suggested, at par228:

"That misconception could have been removed by instructing them that the question that they had to determine was whether the prosecution had established the guilt of the accused, whose case they were considering, beyond reasonable doubt. If, after carefully considering the evidence, reasonable doubt existed in their minds, then it was their duty to acquit. They should have been told that they were not to approach their task by reference to some calculation of percentages. To do so, of course, acknowledges the existence of a doubt which may or may not be reasonable, but which is then disregarded."

15 Similar problems had arisen in the earlier Victorian decision of R v Chatzidimitriou [2000] VSCA 91, and the Queensland decisions of R v McNamara [1998] QCA 405 and R v Collins [1999] QCA 27. Those decisions (see also Graham (supra)) illustrate the difficulty that it is easier for appellate courts to say what should not be said rather than provide guidance for an appropriate response to a difficult jury question. The appellate guidelines of the "least said the better" run counter to the sophistication of a modern and more educated jury and an employment of sophism criticised by the High Court in cases such as Green, and yet critically employed by the courts themselves. In Graham, Underwood J noted with interest that:

"... in two jurisdictions that share common origins with Australia with respect to the onus and standard of proof in criminal cases, the United States of America and Canada, there is clear authority to the effect that a failure to elaborate on and explain the expression constitutes error."

16 The Bench Book used in the Victorian County Court states the appropriate direction to be:

"Moreover, the standard to which you must be satisfied is a high one. It is expressed in words which reflect our understanding of the serious nature of the work of a criminal court. Those words are: 'beyond reasonable doubt'. They are words which have been applied by juries in criminal courts for many years. They mean what they say, and any further definition of them would be neither useful nor proper.

So, if at the end of your deliberations, your state of judgment is - 'I am satisfied by the evidence beyond reasonable doubt that the accused is guilty of this charge - your verdict should be guilty'. If, at the end of your deliberations, your state of judgment is - 'I am not satisfied by the evidence beyond reasonable doubt that the accused is guilty of this charge - your verdict should be not guilty".

while that employed in Western Australia suggests:

"It is the right of any one of us when charged to remain silent and to say to the Crown 'prove your case'. When an accused exercises that right it is quite wrong to assume that he has something to hide or is guilty. He is presumed innocent until he is proved guilty beyond reasonable doubt."

17 In Graham, Underwood J undertook a detailed examination of the impugned direction. Applying his critique, I would advance an appropriate general direction as:

"It follows from the legal presumption of innocence that the prosecution must prove its case beyond reasonable doubt. It is dangerous to attempt to define that concept in detail. A doubt is something which you as a juror will know and feel if you have one. As responsible citizens, you will know in your heart and mind what is reasonable. It is a doubt which after a full and fair examination of the evidence you might, on reasonable grounds, entertain. So if you have a doubt about the guilt of the accused and you could honestly say to yourself that you consider the doubt to be reasonable in all the circumstances, then you will acquit."

The jury should be advised that although they are a collective body, the responsibility of the verdict is for each and not to be a product of acceptance or of the view of a majority or an attempt at "consensus".

18 The problem remains when the jury seeks more detailed guidance. In such an instance, the direction might properly contain some of the matters summarised by Cory J in R v Lufchus (1997) 118 CCC (3d) 1 (referred to in Graham) that:

•

the standard of proof is inextricably linked with the fundamental principle of presumption of innocence;

•

the burden of proof never shifts (cf Misuse of Drugs Act 2001, ss6(2) and 7(2); Criminal Code, s2A(3));

•

the verdict is to be based in evidence, not prejudice or sympathy;

•

a reasonable doubt is one based on evidence or its absence and neither imaginary nor frivolous; and

•

the jury brings to the trial the wisdom, understanding of life and people, and experience in its consideration of the evidence.

19 Here the directions were sufficient for the purpose of the trial. That the jury understood and accepted them as such is reflected in the differing verdicts returned.

20 Grounds (1B), (1C) and (1D) of the notice of appeal claim:

"(1B) That the Learned Trial Judge failed to instruct the jury as to the essential elements of the crimes of rape and assault and further failed to instruct the jury that before they could convict the accused on any count of rape or assault that they had to be satisfied beyond reasonable doubt of each of the essential elements of that crime.

(1C) That the Learned Trial Judge failed to instruct the jury as to the role of the trial judge with respect to directions as to law and the role of the jury as the sole fact finders in the case.

(1D) That the Learned Trial Judge failed to instruct the jury that they had to consider the evidence in respect to each of the individual charges and that it was not a permissible process of reasoning to determine their verdict on one charge based upon a finding on any other charge."

21 The jury was told at the commencement of the trial that:

"... you will be the ones to make a decision on the facts that you hear about whether he is guilty or not. You will be the sole finders or decision makers in relation to the facts in this case. That is not my role it is yours."

22 In her summing up, the learned trial judge reminded the jury:

"It's now my turn to give you some directions as to the law that you need to apply to the evidence that you've heard and the job you're going to have then is going to be a difficult one. You've heard a lot of evidence over a number of days and you're going to need to review in your own minds the whole of that evidence to draw your conclusions."

and having provided a general outline of the respective cases, returned to the task of the jury, in the following relevant terms:

"Now what I'll do is deal firstly with what your actual role in this matter is. You obviously have to consider the evidence and you have to make the findings about what you say happened between [Mr and Mrs W]. The evidence you will need to consider has been in a number of different forms."

23 The jury was told that witnesses could be honest and reliable but mistaken in their accounts and that they were "free to accept parts of one witness's evidence and reject others". She correctly reminded them that the closing statements by counsel did not constitute evidence and that suggestions or propositions put in cross-examination were not evidence "unless the witness adopts it or agrees with it".

24 Ground (1C) ought not be upheld.

25 The learned trial judge directed the jury that they needed to consider:

"... each charge individually even though to some extent some of the charges appear in batches they've all occurred in the same sequence of events.

... You'll need to consider the evidence that you've heard, consider each of the charges as I've said individually. Counsel for the accused has effectively said to you in relation to the incidents [Mrs W] has described that she's not telling you the truth and he has cross-examined her, other prosecution witnesses and led evidence in an effort to satisfy you that for various reasons she's been untruthful. At the end of the day that's a matter wholly and solely for you to decide on the evidence that you've heard."

26 The defence was that there had been no occasions of rape, actual or attempted. The jury had been directed as to the ingredients of each crime in terms appropriate to the separate ingredients of that crime, other than on the issue of consent. The evidence was summarised in chronological sequence, and some evidence of general import, and admissible on each count, dealt with compendiously. The learned trial judge dealt with the complaint evidence and the permitted use of that hearsay evidence. But she gave no specific directions as to the use, limited or otherwise, of evidence only admissible on a particular count. The coincidence evidence was relevant to all counts, but the corroborative evidence limited to a particular count or series of counts required specific direction. Most of the evidence related to the sequence of events between 28 January to 1 February 2004. It is apparent from the verdicts returned on the allegations of events of August and October 2003 that the jury did not allow the latter evidence to "taint" the former. However, the verdicts show that the jury followed the general directions and did not allow the evidence confined to the events of 28 and 30 January to "taint" the verdicts returned on the earlier matters. The verdicts of guilty returned concerned events which were corroborated by either an independent witness or medical evidence. Different verdicts returned in relation to the events of 28 to 31 January reinforce the conclusion that the jury paid regard to evidence admissible on that particular allegation.

27 The grounds are not made out.

28 Ground (1E) of the amended notice of appeal states:

"(1E) That the Learned Trial Judge's written directions to the jury as to consent were wrong in law as those directions were based on legislative amendments that were not applicable to the trial of the accused."

29 The ground is made out.

30 The written memorandum for the jury provided:

"2(b) Consent means agreement freely given by a rational and sober person capable at the relevant time of forming a rational opinion.

2(c) A person does not freely agree to an act if that person

(i) does not actually say or do something to indicate consent,

(ii) agrees because of force or a reasonable fear of force,

(iii) agrees or submits because of a threat of any kind, or

(iv) agrees or submits because he or she is overborne by the nature or position of another."

31 The learned primary judge, in her oral directions, dealt with the issue of consent in the following terms:

"Now in that document I've set out a couple of paragraphs relating to the issue of consent. That's there simply for completion because as I've said the issue of consent doesn't arise in this particular case, it's not put on that basis, but because the charge of rape actually provides that it's sexual intercourse with another person without that person's consent I've added in the provisions relating to consent. But I think as counsel for the State may have pointed out a number of these allegations, the way they've been clearly put by the State, is they were rape, that is sexual intercourse at various time without consent and the accused says they just didn't happen. So that's a document you'll have to take with you into the jury room."

32 The appellant had denied, both during his interview by police and in his evidence at trial, any act or attempt of anal rape. The direction of the learned trial judge accorded with the respective cases as presented at trial. The differing verdicts returned by the jury suggest that they did not accept the whole of the account provided by the complainant, except where corroborated. If that be the case, the question of consent or otherwise in relation to count 8 becomes one for consideration of the proviso.

33 The memorandum correctly stated the applicable law following the enactment of the Criminal Code Amendment (Consent) Act 2004 which received Royal Assent on 17 December 2004. Comparison with the respective statements of law provided by SchI, s2A, shows:

2A Consent

(1) In the Code, unless the contrary intention appears, a reference to consent means a reference to a consent which is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which the consent is given.

(1) In the Code, unless the contrary intention appears, 'consent' means free agreement.

(2) Without limiting the meaning that may otherwise be attributable to the expression 'freely given', a consent is freely given where ¾

(a) it is not procured by force, fraud, or threats of any kind;

(b) it is not procured by reason of the person being overborne by the nature or position of another person; or

(2) Without limiting the meaning of 'free agreement', and without limiting what may constitute 'free agreement' or 'not free agreement', a person does not freely agree to an act if the person ¾

(a) does not say or do anything to communicate consent; or

(b) agrees or submits because of force, or a reasonable fear of force, to him or her or to another person; or

(c) it is not given by a person so affected by liquor or drugs, or so otherwise affected, as to be incapable of forming a rational opinion upon the matter to which the consent is given.

(c) agrees or submits because of a threat of any kind against him or her or against another person; or

(d) agrees or submits because he or she or another person is unlawfully detained; or

(e) agrees or submits because he or she is overborne by the nature or position of another person; or

(f) agrees or submits because of the fraud of the accused; or

(g) is reasonably mistaken about the nature or purpose of the act or the identity of the accused; or

(h) is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required; or

(i) is unable to understand the nature of the act."

34 The amending provisions (2a) and (h) introduce new elements into the statutory concept of consent. In R v S (No 2) [1991] TASSC 22; [1991] Tas R 273, an example was given of an implied consent given by a partner, asleep, which would not be accommodated by the combined effect of the amending provisions. Drowsy or indifferent acquiescence by a regular sexual partner would, on a strict reading of the amending provisions, constitute rape. The complexities involved in any attempted statutory definition of the ingredients of rape were recognised by the Heilbron Committee in the United Kingdom (Report of the Advisory Group on the Law of Rape - Cmnd 6352) and referred to by the High Court in Banditt v R [2005] HCA 80; (2006) 223 ALR 633 at 639. Direction 2(c)(i) contained in the written memorandum was not a correct statement of the law as of the date alleged in the indictment and constitutes a misdirection. (Jones v R [1997] HCA 12; (1997) 71 ALJR 538.)

35 The verdict on count 8 might have been a result of the inclusion of par2(c)(i). The respondent seeks the application of the proviso, an issue which will be separately considered. Care is needed in consideration of issues of the state of mind of the assailant, with regard to the surrounding circumstances, including the past relationship of the parties (Banditt v R (supra)), although the High Court was concerned with the question of "recklessness" and "intent" and the defence of honest belief as to consent. The need is for a careful analysis of the precise forms of direction applicable to the particular circumstances of the case (R v Mueller [2005] NSWCCA 47; (2005) 62 NSWLR 476).

36 Ground 1 of the amended notice of appeal claims that:

"(1) The learned Trial Judge erred in law or alternatively in the exercise of her discretion in permitting the Crown Prosecutor to cross-examine the accused as to whether he -

(a) had asked his then wife ... in 1962 whether she would agree to have anal sex with him;

(b) had engaged in discussions with friends about having anal sex in 1962;

(c) had engaged in anal sex with his first wife in or around 1962 with her consent

as such questioning of the accused was to suggest to him that he had committed the crime of unnatural carnal knowledge (as it then was) contrary to Section 122 of the Criminal Code, such questioning being highly prejudicial to the accused."

37 The conduct of the defence case clearly put credit and character in issue. During the trial, counsel for the prosecution had indicated that the State might lead evidence which went:

"... directly to the assertion made three times in the interview by [W] that he has never had anal sex in his life"

and undertook to deliver a proof to the defence if the evidence was to be called. That evidence was not called and the prosecution case closed. In cross-examination of the appellant, counsel asked, "Is it correct that you had anal sex with your first wife", an assertion denied by the appellant. Counsel for the defence objected to the question after the jury had heard the answer. In the absence of the jury, prosecuting counsel persisted with her attempt to pursue the question on the basis that it was highly probative of an issue, whilst the defence relied on the limiting provisions of the Evidence Act 2001 ("the Act"), ss102 and 103.

38 Her Honour ruled:

"All right, the counsel for the accused has objected to a line of questioning which has just been introduced with this witness. The line of questioning, it appears, arises out of statements made by the accused in a video recorded interview with the police. He has just been asked if he had anal sex with his first wife whom he married in 1958. The line of questioning is objected to by Counsel for the accused although the objection was first couched in terms that it was improper for Counsel for the State to pursue the line of questioning. The basis for that impropriety appeared to be based on what was said to have been a discussion between Counsel last night - there was no other basis upon which it was put, and what Counsel have each told me about the content of that discussion is different. I'm not in a position in those circumstances to go into that matter further. As I have indicated, there was no other basis for what was said to be that it was improper for Counsel for the State to pursue it.

Counsel for the accused has couched his objection in terms of s102 and S103 of the Evidence Act. The issue has been raised as to whether the evidence is relevant only to the witness' credibility and S102 clearly says it is not admissible. S103 however does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. S103 sub-section (2) goes on to say that without limiting the matters that the Court may have regard to in deciding whether the evidence has substantial probative value it is to have regard to - and it outlines two matters in relation to the issue about which the witness is sought to be examined the allegation or some of the allegations made against the accused are that he anally raped the Complainant. He was asked questions in the course of his police interview whether he had first anally raped the Complainant, and secondly whether he had anal sex at all, he denied both of those matters outright. The only issue in my view of whether or not the accused may have had anal sex before is clearly of substantial probative value, given the allegations in this trial and in my view comes within the exception outlined in section 103(1) of the Evidence Act, so the questioning will be allowed."

39 Following the ruling, counsel continued with the cross-examination in the following relevant exchanges:

"In around 1962 had you had discussions with friends about having anal sex? ... Definitely not.

Discussions about how it might be an enjoyable thing to try? ... Definitely not.

Did you ask your then wife [T R] whether she would agree to have anal sex? ... Definitely not.

Did she in fact agree to have anal sex with you? ... Definitely not.

Did she tell you it hurt and she didn't want to do it again. ... It didn't happen.

So if I say to you, you then stopped, you'd just say no, because I wasn't doing it. ... Didn't happen.

Did you try a couple more times after that? ... It just didn't happen.

Your Honour, may the witness be shown this? Have you finished reading it? ... Yes.

Do you still maintain that you never had anal sex with your first wife, [T R]? ... I still maintain that I have not had anal sex.

Thank you. If I could have that document back."

40 The document put to the witness was presumably a witness statement or proof of evidence made by the former wife or a person aware of the history of that marriage. Counsel had not first sought leave before asking the initial question objected to and had breached the requirements of s104(2). In her resumed questioning, she commenced with a different question, namely whether the appellant had discussed with friends anal intercourse generally and expanded the original to include anal intercourse against the will of his wife and attempted repetition. She had neither sought nor obtained leave to expand on the ambit of the questioning. The fact that in 1962 any consenting anal intercourse was unlawful is of little import. The reality was that a jury, in 2005, was being asked to consider the suggestion that the accused had engaged in painful sex with his first wife in 1962 and attempted it further against her wishes. While the conduct of the defence had activated the operation of the Act, s104(4)(c), leave was still required for the expanded questioning.

41 A more appropriate basis for the questioning might have been the provisions of the Act, s107, although the issue of "substantial probative value" would remain.

42 Counsel for the respondent on the hearing of this appeal contended that the Act, s104, had no application "because the evidence was relevant as proof of the charge". He relied on the combined effect of the Act, ss3 and 55 which relevantly provide:

"'credibility' of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation;

'credibility' of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give, evidence;

'credibility rule' means the rule referred to in section 102.

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) Evidence is not taken to be irrelevant only because it relates only to -

43 This contention runs counter to the approach taken by the High Court in Phillips v R [2006] HCA 4. Although in Phillips the court was required to consider "similar fact" or "propensity evidence" provided by evidence of other sexual acts, the same use was sought here. In his submission in support of the respondent's case on appeal, counsel fairly and properly articulated the basis as:

(1) the facts in issue were whether the appellant had anal sex without the consent of the complainant;

(3) he had told police that he had never had anal intercourse in his life and repeated in his evidence at trial that he was truthful in his answers to police;

(4) the jury could infer from those answers he was a person not inclined to participate in anal sex and "therefore make less likely the conduct in issue, that is anal sex, occurred in that he would not have a motive to participate in anal sex";

(5) the questions were permitted since they were "directed to establish that he was a person who would engage in anal sex and has told a material lie to police".

44 The proposition reinforces the need for strict observance of s104(2) in seeking and obtaining leave. The impugned questions raise issues of admissibility and/or discretionary exercise of credibility generally, propensity, prior inconsistent statements, lies corroborative of guilt and coincidence or "similar fact" evidence. In their joint judgments in Phillips, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ stated at par79:

"Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints. This is what Pfennig and other decisions of this Court require. To the extent that O'Keefe or other authority suggests otherwise, it does not represent the law. No other outcome would be compatible with the fair trial of the appellant."

45 Here the prosecution was quite properly permitted to conduct joint trials of events occurring in 2003 and 2004 and to use the evidence of the various episodes in support of others. Use of evidence of events 40 years previous involving a different relationship ought be carefully scrutinised and its precise use identified before reception. Consideration of other events at other times can lead to an ever expanding trial of issues.

46 There are two remaining matters relevant to reception of evidence or permitted cross-examination. The Act, s103(1), requires "evidence adduced in cross-examination" to have "substantial probative value". While it is a matter of judgment in each case, mere relevance or nexus ought not detract from the requirement that it be "substantially" probative in the sense of being of "considerable importance", "concerning the essentials", or "important in material terms". In R v Lockyer (1996) 89 A Crim R 457, Hunt CJ said that:

"... 'significant' probative value must mean something more than mere relevance but something less than a 'substantial' degree of relevance."

47 The significance of the probative value of "tendency" evidence must depend upon the nature of the fact in issue to which it is relevant and the significance or importance which that evidence may have in establishing that fact. In R v Wojtowicz [2005] NTSC 53; (2005) 148 NTR 24, Martin CJ stated:

"It is not a requirement that the evidence have 'significant' or 'substantial' probative value, but if the evidence is 'significant' in the sense that it is 'important' or 'of consequence' to the facts in issue, subject to questions of reliability and discretionary exclusion, such evidence would ordinarily possess 'sufficient' probative value to 'justify' its admission."

48 The second consideration is provided for by the Act, s103(2)(b), which provides that in the exercise of discretion, regard be had to:

"the period that has elapsed since the acts or events to which the evidence relates were done or occurred."

49 Here the time of the discussions with friends was specified as 1962, but no time was identified as to the claimed occurrence of anal sex with the appellant's former wife, but that evidence established that the marriage had occurred in 1958 and children born in 1958 and 1961.

50 Both periods were over 40 years previous to the events subject to trial.

51 Ground (1) is made out. Alone it would not warrant the upholding of the appeal.

52 Ground (2) states:

"(2) That the Learned Trial Judge erred in law or alternatively in the exercise of her discretion in refusing to permit the witness ... to give evidence that she recognised the handwriting of the complainant in the document that had been marked MFI1 which document purported to be a statement made by the complainant in to Singapore Police on the 5th November 2000."

53 One of the matters relied on by the defence in furtherance of its case was that the complainant had previously made a false accusation of rape against her first husband. In cross-examination she denied having made such a report. Counsel for the appellant sought to use material said to have been provided by Australian authorities. Some of the material sought to be used by counsel in cross-examination was rejected by the learned trial judge. But a document identified as MFI1 was put to the complainant whose answers were equivocal. The following exchange occurred with counsel in relation to the provenance and contents of the document:

"And that in fact is a copy of a statement made to the Singapore Police isn't it? ... I did not make this statement.

Is it not a copy of a statement of Singapore Police letter head? ... No, no.

What is it then? ... Because it has been tampered and put there, it's not an original copy, it's all been photocopied and tampered here -

...

It has the logo of the Singapore police on the top, doesn't it? ... No, this is not the logo.

It has a logo on the top - ... .But it has been tampered.

Which is headed 'report', doesn't it? ... No audible reply.

Does it have a logo on it? ... Yes, it has a logo but the thing has been tampered."

54 Further questioning concerned identification of provenance by reference to the complainant's Singapore ID number. The complainant eventually denied that it was her signature on the document, stating that "this is not my signature" and denied being the author of the document. The learned trial judge refused to permit the document to be tendered, ruling that:

"The document sought to be tendered, described presently as MFI-01, is a document, which is asserted by the accused counsel to be a photocopy of a report taken by a police officer in Singapore. It purports to be a statement by a person named [M A], taken on the 5th of November 2000. The document has been put to [Mrs W]. She has been cross-examined extensively in relation to its contents and it is now sought to tender it. Counsel for the accused seeks to tender it on the basis as I understand it that it is a matter for the jury to determine whether it accepts or not that the - that [Mrs W] made a complaint to the police in terms of this document on the 5th of November 2000 and that for the purpose of making that assessment the jury will be able to or should be able to have regard to a comparison of the signature that appears on the document and a signature in the passport of [Mrs W]. The document sought to be tendered is not a good photocopy. On the face of it the signature does not appear to be all there. There is no independent authentication of the document, that is, nothing to indicate apart from what appears on its face, that is, to the effect that it says the police station of origin, Bedok, which is acknowledged by the witness, [Mrs W], as an area nearby to where she was living at the time in Singapore to establish that this is indeed a photocopy of a report made to a police officer on the 5th of November 2000. The witness had denied that she made the statement. She has denied that it is her signature which appears on this particular document and there is no other material that appears to have been placed before the court to in any way tie this document to the witness [Mrs W], or to confirm or otherwise that it is in fact a document prepared by a Singapore police officer in the normal course of his duties. I would have to agree that given the nature of the document, the copy of the document, that it is somewhat dangerous to ask the jury to make a comparison of signatures where one of those signature appears to be incomplete. I would have to, in those circumstances, take the view apart from any other basis that in my general discretion I would exclude the document given the factors that I've outlined could in my view produce some significant prejudice. I'd have to say that I'm as much concerned however that the copy is such a bad one, so I'm not prepared to allow it to be admitted into evidence."

55 No challenge is made to that ruling. K, the daughter of the complainant was called as a witness for the prosecution. She corroborated the complainant's version as to the making of an earlier complaint of violence in 2003 and an SMS message and telephone conversation with her mother on 1 February, during which she spoke with the appellant. It was K who notified police. Her evidence of having seen bruising on the body of her mother was also relied on as corroboration of the prosecution case. In cross-examination she recounted the events which occurred in Singapore in 2000 when, on the defence case, her mother had made a false allegation of rape against her then husband and father of K. Her evidence included the following:

"When you went back to the residence did you and your father and mother go into the residence? ... Yes.

And did something happen? ... Prior or during or after?

No, while you were present did something happen in the residence? ... Yes.

You see, if something had happened between your parents and you weren't present you can't tell us about it? ... Absolutely right.

So tell us what you heard and saw that evening? ... My Dad and I sat down to watch tv and have a meal and my Mum just ran out of the house screaming hysterically.

Yes. All right, did she leave the house? ... Yes, she ran out of the house.

Did anything happen between your parents that you observed that might make your mother run out of the house? ... Well, my Dad and I just sat down to watch tv.

And can you fix a time at night that this happened? ... Round about eleven, between eleven and midnight, somewhere around there.

Did you leave the house? ... Yes.

For what purpose? ... To look for my Mum.

And where did you look for her? ... I went out of the block of flats, looking for her, and I went down to the police house to see, just to make a report that she was missing and she was there.

I'll stop you there; you talk of the police post, is it a fact that in many of the Singapore large apartment blocks that there is a small Police office called a Police post? ... Yes.

Right, and how far from your home was the local Police post? ... A couple of hundred metres.

And you went in there, was your mother there? ... Yes.

And was she saying anything when you arrived? ... Yes she was talking to the Police Officer.

And what was her demeanour at that stage? ... She was hysterical, she was crying.

And did she say anything to the police about some conduct? ... Yes, she said that my Dad had raped her.

And did she say how he had tried to rape her? ... She said that he tried to anally and vaginally rape her.

And did you speak with the Police? ... Yes.

And did you speak with the police in the presence of your mother? ... Yes."

56 K was then shown the document MFI1 and asked if she was "familiar with your mother's handwriting" to which she replied "Yes". Further questions was objected to. The learned trial judge determined that she would:

"not allow the document to be put to the witness nor the witness asked to make a comparison of ... any signature which may appear on it with any other document."

57 It may be that the witness was unable to identify the signature. Had she been able to recognise the signature, it may be that the document, in its entirety, might have been excluded. But recognition would have been relevant to the testing of the complainant's claim that she had made no such statement and the signature was not hers. The witness was permitted by the Act, Div3, Pt3, to give opinion evidence. The jury might have been permitted to compare the signature on the document with other material used by defence counsel during the trial (see generally Daley v R [1979] Tas R 63), but the preliminary question put by counsel could, at least, have been used to rebut the claim earlier made by the complainant. The witness was one who had an acquaintance with the handwriting through experience (Lucas v Williams & Sons [1892] 1 QB 113; Duke v Duke (1975) 12 SASR 106).

58 The document was a cogent piece of evidence, confirming the making of a complaint against the former husband on 5 November 2000. It is not necessary to decide whether it would have become admissible if the witness identified the signature since, even if excluded, identification of that signature would have been relevant to the credibility of the complainant.

59 Ground (2) ought be sustained.

60 In my opinion grounds (1E), 1 and 2 ought be sustained. The respondent contends that the appeal ought, in any event, be dismissed. Alone each ground upheld might not warrant intervention by this Court. Combined, the application of the proviso is more problematic.

61 In Weiss v R [2005] HCA 81; (2005) 80 ALJR 444, the High Court considered the history of the introduction and use of the proviso in the United Kingdom and Australia. In doing so it drew attention to the wording of the various statutory provisions and rejected attempts to define application by the use of terms such as "inevitability of condition", "real chance of acquittal", "deprived of a chance which was fairly open", and the like.

62 In their joint judgment, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ stated, at pars35 and 36:

"The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'.

By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso. In cases, like the present, where evidence that should not have been adduced has been placed before the jury, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the trial jury actually did with that evidence. In cases, like the present, where the evidence that has been wrongly admitted is evidence that is discreditable to the accused, it will almost always be possible to say that that evidence might have affected the jury's view of the accused, or the accused's evidence. And unless we are to return to the Exchequer rule (where any and every departure from trial according to law required a new trial) recognition of the possibility that the trial jury might have used wrongfully received evidence against the accused cannot be treated as conclusive of the question presented by the proviso."

63 While their Honours accepted that use of particular terms might be useful in assessing circumstances of specific cases, they considered, at par39, that:

"Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt."

"That task is to be undertaken in the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524-525 per Barwick CJ; Storey [1978] HCA 39; (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Festa [2001] HCA 72; (2001) 208 CLR 593 at 631-633 [121]- [123] per McHugh J and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126 [23] per Gleeson CJ, Gummow and Kirby JJ, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself."

65 The court recognised that it was not useful "to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court" because of "the very wide diversity of circumstances in which the proviso falls for consideration", but emphasised that the task is objective. In undertaking that task, an appellate court is required to consider:

(1) the whole of the trial record, including the verdict itself;

(2) the accusatorial nature of criminal trials and the requirement of proof beyond reasonable doubt;

(3) the permissive nature of the wording of the proviso leading to a negative proposition, namely:

"It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty."

(4) in certain cases, such as a significant denial of procedural fairness at trial, it is proper to allow an appeal "even though the appellate court was persuaded to the requisite degree of the appellant's guilt."

"... the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso."

(See Wilde v R [1988] HCA 6; (1988) 164 CLR 365 at 373; cf Conway v R (2002) 209 CLR 203 at 241.) Wilde was approved by the Privy Council in R v Howse [2006] 1 NZLR 443, a case involving an appeal from the New Zealand Court of Appeal.

67 Here, the differing verdicts suggest caution. The acts of physical violence occurring on 28 January and 1 February were positively found by the jury. Allegations of rape in August and October 2003, 28, 30 and 31 January 2004, were not upheld by the jury.

68 The errors, which I have concluded occurred at trial, related to the sexual relationship with the former wife, the making of a previous complaint of a sexual nature by the complainant and the directions given as to consent. Those errors did not impact on the convictions for acts of non-sexual physical violence. In addition, those acts were directly corroborated by the evidence of others. There was physical evidence of assaults and trauma to the complainant's body.

69 The same cannot be said for the conviction of anal rape on 30 January. The evidence supportive of the complainant's version was provided by medical practitioners who had examined the complainant some days after the event. The evidence was consistent with non-consenting sexual conduct, but could not exclude its occurrence in consensual activity. The jury did not accept the other allegations of non-consensual conduct on seven occasions on 28, 29, 30 and 31 January. A directed verdict was returned in relation to another alleged attempted rape on 31 January. The verdicts returned by the jury require acceptance that it did not wholly accept the evidence of the complainant, at least if uncorroborated. The misdirection as to consent, conceded by the respondent, concerned an act solely within the knowledge of the parties, but indirectly corroborated.

70 I would uphold the appeal, but apply the proviso in relation to counts 3, 4 and 14 of the indictment. I would not apply the proviso in relation to the conviction on count 8, would quash that conviction, and order a new trial.

71 The appellant was sentenced to a term of imprisonment of four years and six months, with a non-parole period of three years fixed.

72 The crimes for which the appellant was sentenced occurred over three days and the act of anal rape occurred in the midst of a series of arguments between the parties. I repeat what I stated in R v S (No 2) (supra) in relation to rape within marriage. Here the verdicts returned by the jury made assessment more difficult. A sentence of imprisonment of four years would have been appropriate if there had been a course of sexual violence. Such a course, prolonged or repeated, would show the pattern of degradation, humiliation and the use of physical power to punish the psyche and inner being of a partner. But the verdicts require the sentence to reflect a different form of violence within which an act of rape occurred. The offender, aged 68, had no relevant prior convictions and had led an otherwise productive life. That he contested the allegations against him cannot, given the verdicts, be used as a basis for claiming that he showed no remorse for his proven conduct.

73 In my opinion, the sentence of four years and six months, with a non-parole period of three years, is considerably greater than ordinarily imposed for a single act of rape in circumstances such as here. Comparison with cases such as Armstrong (18 June 1996), Knight (22 April 1994), Radcliffe (10 July 1996), Riley (11 December 1998), Garcia (23 November 1999), M (16 May 2003), S (9 December 2005) and R v S (No 2) (supra) suggest that a more apposite term to be one of three years.

74 I would uphold the appeal against sentence and substitute one of three years' imprisonment with the non-parole period fixed at one half of that sentence.

75 I would uphold the appeal in relation to the conviction on count 8 of the indictment, quash the conviction and order a new trial on that count.

76 I would dismiss the appeal in relation to counts 3, 4 and 14 of the indictment.

77 I would uphold the appeal against sentence.

File No CCA 66/2005

78 I have had the benefit of reading the reasons for judgment prepared by Slicer J and those prepared by Blow J.

79 Like Blow J, I agree in substance with Slicer J's reasons as to why grounds 1(A) - 1(D) should fail. I share Blow J's disagreement with the general direction as to proof beyond reasonable doubt proposed by Slicer J in par17 and Blow J's reasons for doing so. A direction that invites the jury to analyse a doubt for reasonableness is to be eschewed. In Graham v R [2000] TASSC 153, Underwood J (as he then was), after a detailed analysis of the authorities, concluded at par63, "it is an error of law to direct the jury that they should analyse a doubt that they consider is a reasonable doubt". A more recent authority that can be added to those referred to in Graham, which recognises the need to avoid such a direction, is Ho [2002] NSWCCA 147; (2002) 130 A Crim R 545.

"That the Learned Trial Judge's written directions to the jury as to consent were wrong in law as those directions were based on legislative amendments that were not applicable to the trial of the accused."

80 I agree with my colleagues that this ground is made out.

"(1) The learned Trial Judge erred in law or alternatively in the exercise of her discretion in permitting the Crown Prosecutor to cross-examine the accused as to whether he -

(a) had asked his then wife [T] in 1962 whether she would agree to have anal sex with him;

(b) had engaged in discussions with friends about having anal sex in 1962;

(c) had engaged in anal sex with his first wife [T] in or around 1962 with her consent

as such questioning of the accused was to suggest to him that he had committed the crime of unnatural carnal knowledge (as it then was) contrary to Section 122 of the Criminal Code, such questioning being highly prejudicial to the accused."

81 Under the umbrella of this ground, counsel for the appellant advanced the following contentions.

•

The matters about which the prosecutor cross-examined went only to the appellant's credit; pursuant to the Evidence Act 2001 ("the Act"), s104(2), the prosecutor required leave before cross-examining on such matters and the prosecutor had commenced her cross-examination on the matters before obtaining leave, albeit that leave was subsequently granted.

•

A similar argument to the above but reliant upon s112 which requires that the prosecutor obtain leave before cross-examining about matters arising from evidence adduced referable to the character of an accused pursuant to s110.

•

The cross-examination was impermissible as pursuant to s137, the Court must refuse to admit evidence adduced by a prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

82 The Act, Pt 3.7 deals with credit and includes the following provisions:

"102 Evidence that is relevant only to a witness's credibility is not admissible.

103 (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.

...

104 (1) ...

(2) A defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant's credibility, unless the court gives leave."

83 The charges against the appellant included three charges of anal rape and one charge of attempted anal rape. Evidence of a person's disinterest in anal sexual intercourse, if accepted, could rationally affect (directly or indirectly) the assessment of whether that person had engaged in or attempted to engage in such an act. The effect of the appellant's answers when interviewed by the police and the evidence he gave as a witness in his own defence was that he was not interested in and had never had anal sexual intercourse. This evidence was relevant to a fact in issue, the occurrence of anal sex. Accordingly, s104(2) did not require the prosecutor to obtain leave before cross-examining the appellant as to his interest in anal sex. The application of that subsection is confined to cross-examination about a matter that is relevant "only" to an accused's credibility.

84 Provisions in relation to the reception of evidence about the character of an accused or co-accused and the circumstances in which cross-examination about it may be permitted, are contained in the Act Pt 3.8. For present purposes, the relevant sections are:

"110 (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove, directly or by implication, that the defendant is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove, directly or by implication, that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not generally a person of good character.

(3) If evidence adduced to prove, directly or by implication, that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not a person of good character in that respect."

"112 A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave."

85 The nature of character evidence was fully canvassed in Melbourne v R [1999] HCA 32; (1999) 198 CLR 1, an authority which confirms that character evidence may be relevant to an accused's propensity to commit a crime, or to the credibility of an accused, or to both of these questions. Accepting, as is plainly correct, that evidence of an accused's character is often also relevant to credit, it can be seen that there is room for considerable overlap between Pts 3.7 and 3.8. As already mentioned, leave to cross-examine as to credibility is not required unless the subject matter of the cross-examination is relevant "only because it is relevant to the defendant's credibility", s104(2). However, where evidence as to an accused's character has been adduced and is covered by s110, it seems that s112 requires that leave be obtained to cross-examine the accused about matters arising from the evidence, even if those matters do not relate solely to character. Ordinarily a prosecutor cross-examines an accused about many aspects of the crime in question and it is inevitable that this may elicit a response that reflects on the accused's character. On one view, s112 could unreasonably fetter the cross-examination of an accused when character evidence has been adduced, although this would not necessarily be so if the matters arising from the character evidence have been clearly identified and appropriately confined. The difficulties of harmonising Pts 3.7 and 3.8 are adverted to, but not addressed, in Stanoevski v R [2001] HCA 4; (2001) 202 CLR 115 at 125. Similarly, I do not find it necessary to address them, and nor do I find it necessary to consider the consequential issue that arises in this case of whether s137 barred her Honour from granting leave to the prosecutor to cross-examine on the matters that are the subject of this ground of appeal. I do, however, mention that when leave to cross-examine falls to be considered pursuant to s104(2) or s112, regard must be paid to the matters contained in s192(2), see Stanoevski v R (supra). That subsection was not expressly adverted to in the course of the exchanges that culminated in the grant of leave to cross-examine in question.

86 I do not need to address the matters to which I have referred as the cross-examination in contention did not elicit any evidence. The questions put to the appellant by the prosecutor involved assertions that the appellant had discussions with friends in 1962 about how it might be an enjoyable thing to try anal sex and had discussed having anal sex with his first wife and had had anal sex with her. The appellant unequivocally denied these assertions and reiterated that he had never had anal sex. The prosecutor's questions were not evidence and the jury were so instructed in relation to all the questions of counsel. In result, the prosecutor did not adduce any evidence that the appellant had ever had anal sex or an interest in having anal sex. In the context of this trial, it is only if that evidence had actually been elicited that what occurred could have given rise to a miscarriage of justice for the purposes of the Criminal Code, s402(1).

87 Ground 1 should fail.

"(2) That the Learned Trial Judge erred in law or alternatively in the exercise of her discretion in refusing to permit the witness [K] to give evidence that she recognised the handwriting of the complainant in the document that had been marked MFI1 which document purported to be a statement made by the complainant to Singapore Police on the 5th November 2000."

88 In the course of her cross-examination, the complainant denied making a complaint to Singapore police on 5 November 2000 that her first husband had tried to anally rape her or threatened to rape her. She denied that a document put before her was a copy of a statement she had made to Singapore police on 5 November 2000. She acknowledged that the document appeared to bear the Singapore police logo, purported to be made by a person using the surname she was using at the time and contained information that included:

•

her then address;

•

a Singapore identification number substantially similar to hers; and

•

the following passage:

"At about 2am on Sunday 5th November I felt someone, my husband, kissing and caressing me at my bed and also trying to undo my jeans, pants. I was sleeping in my daughter's single bed, my youngest daughter was away in Australia. As the bed was stationed against the wall I tried to resist but he slapped my mouth and he warned me he would not hesitate to rape me."

89 She said she did not make the statement, it was not in her handwriting, the signature to the document was not hers and the document was false and a forgery. The document was marked for identification. I will refer to it as the Singapore document.

90 The complainant's daughter, K, gave evidence. She was cross-examined, without objection, as to an incident in Singapore in 2000 when the complainant had, on the defence case, made a false allegation of rape against her first husband, the father of K. The evidence of K was to the effect that one night, for no apparent reason, the complainant had run from their home, screaming hysterically. K went looking for the complainant and located her at a police station where the complainant was saying that her first husband had tried to anally and vaginally rape her. K said she told the police that she had been present at the family home and what the complainant was saying had not occurred.

91 Counsel for the appellant placed the Singapore document before K and sought to have her identify the signature and handwriting in the document as that of her mother. The prosecutor objected to this course and the learned trial judge upheld the objection. Putting to one side the issue of whether a positive response from K would have warranted admitting the Singapore document into evidence, had K identified the signature and writing in the document as that of the complainant, this evidence, if accepted by the jury, would have reflected adversely on the complainant's credit about past complaints she had made of sexual abuse. In the course of his submissions to the learned trial judge, counsel for the appellant conceded that the evidence he sought to elicit from K went solely to the complainant's credit. That being so, the evidence could only be admitted if it had substantial probative value, s103(2). As to that issue, it is significant that the trial had proceeded on the implicit basis that evidence of the complainant's false allegations of sexual abuse against her first husband was of substantive probative value. K had, without objection, given the evidence referred to in par13 of the complainant having made such a false allegation. Accepting that this evidence went solely to the complainant's credit, it was only admissible if of substantial probative value. As to that term, I refer to the following passage from Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 at par86 where Sackville J, with whom Whitlam and Mansfield JJ agreed, said:

"The statutory concept of 'substantial probative value' is, however, given an extended meaning by s103(2). In determining whether the evidence has substantial probative value, the court is to have regard, inter alia, to whether the evidence tends to prove that the witness knowingly or recklessly gave false evidence when under an obligation to tell the truth. It has been held by the New South Wales Court of Criminal Appeal that the Dictionary definition of 'probative value' ... does not apply to s103 both because of its subject matter and the specific terms of s103(2): R v RPS (unreported, Criminal Court of Appeal, NSW, Gleeson CJ, Hunt CJ and Hidden J, No 60583 of 1996, 13 August 1997). Hunt CJ at CL, with whom Gleeson CJ and Hidden J agreed, said this (at p29):

'Evidence adduced in cross-examination must ... have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness ... The addition of the word `substantial' nevertheless imposes a limitation upon the common law, when almost anything was allowed on the issue of credit unless it clearly had no material weight whatsoever upon that issue. (Emphasis added.)'"

92 The defence case was that the complainant's allegations that the appellant had anally raped her were untrue. Had K identified the handwriting and signature in the Singapore document as that of the complainant, that evidence, if accepted, would have added to other evidence that cast doubt on the veracity of the complainant's allegations of sexual abuse. The evidence would have gone to the heart of the defence to the anal rape allegations, not simply general discredit.

93 Although s103(2) does not limit the matters that the Court may have regard to in deciding whether evidence has substantial probative value, it does identify two matters that may be considered. The first of these is: "whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth". To my mind the identification of this matter by the subsection indicates that evidence such as that in question has substantial probative value, and in my view this evidence, if given, would have had that value.

94 Ground 2 should be allowed.

95 The focus of the evidence that is the subject of ground 2 is the conviction for anal rape and ground 1E relates solely to that conviction. In result, no miscarriage of justice has been established in relation to the assault convictions, but there has been a miscarriage of justice within the meaning of that term in the Criminal Code, s402(1), in relation to the anal rape conviction. As to what amounts to a miscarriage of justice for the purposes of appellate provisions similar to the Code, s402(1) and (2), I refer to the following passage from Mraz v R [1955] HCA 59; (1955) 93 CLR 493 at 514 where Fullagar J said:

"It is very well established that the proviso to s6 (1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice."

96 Where errors of the nature in question have occurred, the appeal must be allowed unless the proviso contained in the Code, s402(2), applies, that is, the Court is satisfied that no substantial miscarriage of justice has occurred. The Court will only so conclude if, having examined the whole of the record of the trial, it is satisfied on evidence properly admitted that the accused was proven beyond reasonable doubt to be guilty and that the error made at trial would, or at least should, have had no significance in the determination of the verdict: Weiss v R [2005] HCA 81; (2005) 80 ALJR 444, at pars43 and 44; and see also Darkan v R [2006] HCA 34 at par84.

97 Having reviewed the trial record, I am not persuaded beyond reasonable doubt of the accused's guilt on the one count of anal rape on which he was convicted. Perhaps inevitably, my assessment has been coloured by my uncertainty about what, if any, difference the errors in question may have made to the outcome. However, staying with the evidence properly admitted at trial, I can best explain my lack of persuasion by focusing on the evidence that relates to the veracity of the complainant's allegations about the anal rape in question. It is plain from the jury's verdicts that the jury was not prepared to accept the complainant's evidence save where corroborated. On my reading of the transcript, the jury was quite right in so concluding. It rejected the complainant's uncorroborated evidence as to two incidents of anal rape, one incident of attempted anal rape, four incidents of vaginal rape and two incidents of oral rape. The appellant's sole rape conviction arises from the complainant's evidence that the appellant anally raped her on the afternoon of Friday, 30 January 2004. As to that incident, the complainant's evidence was:

"Did anything else happen on the Friday? ... Friday I was resting in the afternoon in the bed afternoon, and he came in the afternoon and he ask me, 'I want to have sex.' He punched me - he give me a punch and he say that I want it now, I want to have sex.

Did you say or do anything at that stage? ... I say, no, I do not want to have anything. 'I want sex and I want anal sex,' he said.

What did you say when he said he wanted anal sex? ... I just - I just bluffed him. I said I had diahorrea. In fact I didn't have.

And what was his response when you said you had diahorrea? ... 'So that's it. I'll get a condom and I'll do it.'

Was there - what happened then? ... He used - I don't - he used a condom and he pushed me to the - I was on the bed. He forced himself from behind.

So what position were you in on the bed? ... Initially I was on the side and he turned me.

Mm hm ... And he pushed his penis behind.

And what position were you in when he pushed his penis? ... I was on my stomach.

And what happened after that? ... After that he took the condom and threw it in the bin."

The corroboration for the complainant's evidence about this occurrence was a split in her anus and extreme tenderness all around her anal area, which was observed by Dr Frances Donaldson, a medical practitioner who examined the complainant at 7.20pm on Monday, 2 February 2004. Dr Donaldson said that the split was consistent with anal sex and passing a large stool, but the tenderness was consistent only with anal sex.

98 On the evidence before the Court, Dr Donaldson was the first person to whom the complainant made a specific allegation in relation to the incident of anal sex in respect of which the appellant was convicted.

99 When questioned about her delay in making complaint about this and other incidents, the complainant said that her sister-in-law, the appellant's sister, cautioned the complainant not to say anything. From this it might be inferred that the complainant told her sister-in-law about the subject incident; however, the complainant did not say so and her sister-in-law did not give evidence. In the circumstances, I am not satisfied that the complainant made any specific complaint about the subject incident to her sister-in-law.

100 A lot transpired between the afternoon of Friday, 30 January 2004 and the complainant's consultation with Dr Donaldson on Monday, 2 February 2004. In brief summary, the complainant said that prior to 8pm on the night of Saturday, 31 January 2004, the appellant raped her vaginally and orally; in the early hours of the following morning she spoke on the telephone to her daughter, K, who was at that time in Launceston; as she spoke to K, the appellant took the phone from her and abused K; an argument ensued between the appellant and the complainant, in the course of which the appellant assaulted her and tried to rape her; she ran from the home in her night attire to a nearby park from where she was collected by the police and taken to the home of her sister-in-law.

101 The evidence as to telephone communications between the complainant and K in the early hours of 1 February 2004 includes records which show:

•

15 text messages from the complainant's mobile phone to K's mobile phone between 2.29am and 3.16am;

•

4 text messages from K's mobile phone to the complainant's mobile phone between 2.47am and 3.41am; and

•

a telephone call from K's landline to the complainant's landline at 4.53am for a duration of 16 minutes 46 seconds, a call at 5.10am of just short of 12 minutes and a call at 5.45am of 11 seconds' duration.

102 Constable M J Hollingsworth gave evidence that he checked the text messages that could be recovered from K's mobile phone and one of the messages that had been received that morning from the complainant's phone included the following:

"Don't be silly. I saved my honour. He punched in my belly. I cried. ... I locked myself in. Prayed to God to protect me my daughter many times. I was saved. Never raped."

103 K gave evidence to the effect that her recall of one of the text messages received from her mother that morning was that it was to the effect that the appellant had tried to rape her, she had locked herself in the bathroom and the text included words like, "God help me, I was saved but never raped". K said that subsequent to receiving this text message, she telephoned the complainant on the landline. Matters that K referred to as being spoken of in that conversation were that the appellant was asleep and the complainant had locked herself in the bathroom. K said that subsequent to this, she then spoke to her mother at about 5am and during the course of the conversation the appellant took the phone and said to K words to the effect of "I've had a gut full of you girls fucking me around". K heard her mother in the background saying, "Let go of me. You're hurting me". She said to the appellant, "Are you hurting my Mum?" and he replied, "What do you think I fucking am?" K said, "If you are then I'm going to call the cops on you". The line went dead, and K pressed the redial button. When the phone was answered, she heard a loud scream, an ear piercing scream, and the line went dead. K immediately telephoned the police.

104 On the evidence of Constables Michael Hinchen and Deena White, who responded to that call, it was made at about 5.45am. They gave evidence that they came upon the complainant in a small park near her residence, and at her request, drove her to the home of her sister-in-law. Constable Hinchen said that the complainant made no complaint to him of any form of sexual assault. Constable White, who took a statement from the complainant at her sister-in-law's home, said that the complainant made no complaint of rape or sexual assault, although the complainant did say there had been the threat of rape.

105 At 10.30am on Sunday, 1 February and later at 12.30pm, the complainant attended Dr Dimitrius Klonaris, a partner in a general medical practice that the complainant had previously attended. The complainant made detailed allegations to Dr Klonaris of being assaulted by the appellant and the doctor noted bruising and lacerations consistent with her allegations. The complainant said to Dr Klonaris that the appellant had tried to rape her but could not. In response to Dr Klonaris' direct questioning, the complainant denied being sexually assaulted, his note of what she said being "She still denied being sexually assaulted".

106 At 1pm on Sunday, 1 February 2004, the complainant attended on Dr Moira Conley at the Accident and Emergency Department of the Hobart Private Hospital. As with Dr Klonaris, the complainant made detailed allegations to Dr Conley of the appellant having assaulted her and the doctor noted bruises and lacerations consistent with those allegations. The complainant made no allegation to Dr Conley of the appellant having raped her or sexually assaulted her.

107 It seems that the first occasion upon which the complainant alleged that she had been raped by the appellant in the course of the previous days was in a telephone conversation with K some time during the late afternoon on Sunday, 1 February. K said that her mother told her that the appellant had vaginally and anally raped her on the morning of the assault and that he had done so quite a few times before.

108 On Monday, 2 February 2004 the complainant was again interviewed by police and made allegations about the appellant having raped her on the night of 31 January 2004, but made no mention of any sexual assaults prior to that night, in particular the anal rape on 30 January 2004, which is the subject of the conviction in question.

109 On Monday, 2 February 2004 at 7.20pm, the complainant was examined by Dr Frances Donaldson, a general medical practitioner with experience in dealing with victims of sexual assault. Dr Donaldson gave evidence that she was told by the complainant of the appellant having sexually assaulted her, and with respect to the appellant having anally raped her on Friday, 30 January 2004, Dr Donaldson made the following note:

"Last Saturday, last Friday and Saturday the abuse started. On Friday night the sexual assault started early in the morning. (C) was asleep and her husband forced her to have anal intercourse. He would not stop, he punched her on the back and pinned her to the bed with his feet. He pushed her face into the pillow. He didn't like the smell so he stopped and put a condom on and finished. (C) was bleeding and he left her and went to watch a pornographic video. At seven o'clock that night the violence started again."

110 Whilst this note is ambiguous, it seems that the complainant told Dr Donaldson that the anal rape occurred early on the Friday morning. In her evidence (see par20) the complainant said the anal rape occurred on the Friday afternoon.

111 The complainant's daughter K gave evidence that corroborated some aspects of the complainant's evidence, but also gave evidence of a number of matters that were adverse to the complainant's credit. One matter is the evidence detailed in par13. K also gave evidence that in April 2005 she was staying with the complainant at the complainant's residence and, at a time when the complainant had a couple of drinks, she said to K: that she wished she had not made up allegations against the appellant but that if the appellant went to prison she would inherit his property and obtain victims of crime compensation. K also said that about five weeks prior to the trial, which began on 21 September 2005, she had met the complainant at a motel in Hobart and the complainant had again said that she wished she had not made the allegations against the appellant and that they were not true. The complainant was cross-examined about these conversations and denied that they had occurred. The prosecutor was granted leave to cross-examine K about the conversations. K denied lying about them in order to cause difficulty and trouble for her mother. On K's evidence she had no reason to try to help the appellant. She said she disliked the appellant and had not attended his wedding to her mother. It is clear from the evidence that the relationship between the complainant and K was a volatile one. It seems from the complainant's many communications with K in the early hours of the morning of 1 February 2004 that at least at that time their relationship was amicable. K is a mature woman; she has married, had children and obtained a doctorate of philosophy. The evidence provides no compelling basis for totally rejecting K's evidence.

112 Whilst the physical evidence of the complainant's anal tear, together with Dr Donaldson's evidence, strongly suggest the occurrence of an act of anal sexual intercourse, it does not establish that it was not consensual, or more particularly that the complainant was anally raped by the appellant. For that to be established, reliance must be placed on the complainant's evidence and having considered all of the evidence, I am not persuaded that the allegation of anal rape that is the subject of count 8 is established beyond reasonable doubt.

113 I would allow the appeal against the appellant's conviction for rape. As my colleagues would do likewise, there is no occasion for me to address the appeal against sentence. The sentence must be set aside and the appellant re-sentenced on his convictions for assault.

File No CCA 66/2005

114 I have had the advantage of reading the reasons for judgment of Slicer J and Evans J in draft form. I agree with Slicer J that grounds 1A to 1D must fail, and I agree in substance with his Honour's reasoning as to those grounds. I regret that I take a different view from his Honour as to grounds 1E, 1 and 2.

115 I regret also that I do not agree with the terms of the standard form of direction as to proof beyond reasonable doubt that has been proposed by his Honour in par17 above. The final sentence of that proposed direction would invite a jury first to consider whether it has a doubt and then, if it does, to scrutinise that doubt and decide whether or not it is a reasonable one. There are many reported cases which establish that a jury must never be invited to undertake such a process of reasoning. They were reviewed by Cox CJ and Underwood J (as he then was) in Graham v R [2000] TASSC 153. A jury should not be directed "to analyse their own mental processes": Thomas v R [1960] HCA 2; (1960) 102 CLR 584 per Windeyer J at 606; Green v R [1971] HCA 55; (1971) 126 CLR 28 at 33.

116 In R v Wilson (1986) 42 SASR 203 at 206, King CJ said the following:

"... it is not permissible to suggest that they [a jury] should disregard a doubt which, at the end of their deliberations, they think to exist, or that they are required to subject such a doubt to a process of analysis in order to determine its quality. If at the end of their deliberations, the jury have a doubt, that doubt is ipso facto, as Green's case [1971] HCA 55; (1971) 126 CLR 28 establishes, a reasonable doubt."

117 In Krasniqi v R (1993) 61 SASR 366 at 373, Bollen J, after reviewing the authorities, said:

Ground 1 - cross-examination as to anal sex in 1962

118 The appellant contends that the learned trial judge erred in permitting the Crown prosecutor to cross-examine him as to him discussing and practising anal intercourse in or about 1962. Counsel for the appellant submitted on three bases that such cross-examination should not have been permitted. First, he argued that cross-examination about those matters was relevant only to the appellant's credibility; that leave to cross-examine about those matters was therefore required pursuant to the Evidence Act 2001, s104(2); and that such leave was neither sought nor given. Counsel for the respondent submitted that the cross-examination in question was not relevant only to credibility, and that there was therefore no need for leave to have been sought under s104.

119 At the trial, the Crown alleged that the appellant had had anal sex without the consent of the complainant. The appellant denied that anal sex had occurred. There was evidence that he had told police officers during an interview that he had never had anal sexual intercourse in his life. He gave evidence, during which he said that he was truthful in his answers to the police. Thus it was part of his case that he was a person not inclined to participate in anal sex. The cross-examination was directed to establishing that he was a person who would or might be interested in engaging in anal sex. On that basis, the cross-examination was relevant not just to credibility, but to a matter in issue, namely his inclination in relation to anal sex. The fact that the cross-examination concerned discussions and events in or about 1962, some four decades before the commission of the alleged crimes, might well have led the jury to a conclusion that any admissions by the appellant deserved to be given little weight. But in my view the cross-examination was directed towards adducing evidence which, if given and accepted, could have rationally affected the assessment of the probability of the appellant being disinclined to participate in anal sex. Such evidence, if adduced, would have been relevant to a fact in issue. It would have been a matter for the jury to decide what weight, if any, to give to any such evidence.

120 The prohibition on cross-examination without leave that is imposed by s104(2) applies only to "a matter that is relevant only because it is relevant to the defendant's credibility". Because the cross-examination was relevant to a matter in issue, s104(2) had no application.

121 Counsel for the appellant also submitted that the learned trial judge should not have permitted the cross-examination as to the appellant discussing and practising anal sex in or about 1962 since leave to cross-examine about those matters was not sought or given under the Evidence Act, s112. That section reads as follows:

"112 A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave."

122 The "Part" referred to in that section is Part 8 of the Evidence Act. The only kinds of evidence referred to in Part 8 are evidence about the character of the accused (s110), and evidence about the character of a co-accused (s111). Since there was no co-accused in this case, only s110 need be considered. It reads as follows:

"110 (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove, directly or by implication, that the defendant is, either generally or in a particular respect, a person of good character.

(2) If evidence adduced to prove, directly or by implication, that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not generally a person of good character.

(3) If evidence adduced to prove, directly or by implication, that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove, directly or by implication, that the defendant is not a person of good character in that respect."

123 Because of the wording of s112, it is necessary to analyse s110 to see what kinds of evidence are referred to in it. The kinds of evidence referred to therein are as follows:

•

Evidence adduced by a defendant to prove that he or she, either generally or in a particular respect, is a person of good character: s110(1).

•

Evidence adduced to prove that the defendant is not generally a person of good character: s110(2).

•

Evidence adduced to prove that the defendant is not a person of good character in a particular respect, after evidence has been admitted for the purpose of proving that he or she is a person of good character in that respect: s110(3).

The cross-examiner was not seeking to adduce evidence of any of those three kinds. The evidence, if given, would not have been adduced by the appellant. The prosecutor was not attempting to prove that the appellant was not generally a person of good character. She was not trying to rebut admitted evidence that he was a person of good character in a particular respect. It follows that the cross-examination in question was not cross-examination about matters arising out of evidence of a kind referred to in Part 8, and that s112 was inapplicable.

124 Counsel for the appellant also submitted that any evidence elicited by the cross-examination as to the appellant discussing and practising anal sex in or about 1962 would have had an unfair prejudicial effect that exceeded its probative value. In 1962, it was a crime for anyone to have "carnal knowledge of any person against the order of nature": Criminal Code, s122(a). Thus it was a crime in this State for a man to have anal intercourse, even with a partner who consented. It was submitted that any evidence that the appellant committed such a crime in 1962 would have led to a risk of unfair prejudice that outweighed the probative value of the evidence.

125 The Evidence Act, s137, required the learned trial judge to refuse to admit evidence adduced by the prosecutor if its probative value was outweighed by the danger of unfair prejudice to the appellant. The probative value of any evidence of discussions and sexual activity in or about 1962, would have been very slight, in my view. People change as they get older. Evidence that a young man had an interest in heterosexual anal intercourse in the early 1960s would be of little assistance in determining what degree of enthusiasm, if any, the same man had for heterosexual anal intercourse in 2004, at a potentially less adventurous time of his life. However, s137 required a value judgment as to the relative strength of the danger of unfair prejudice to the appellant. A very useful exposition as to the meaning of "unfair prejudice" appears in Report No 26 of the Australian Law Reform Commission, vol 1, at par644:

"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."

126 Community attitudes about sexual behaviour have changed a lot since 1962. It was because of changing community attitudes that s122 was eventually amended in 1997. Evidence of a man committing a crime so long ago would have been unlikely, in my view, to provoke the sort of emotional response that s137 is concerned with. I do not think that the cross-examination in question could have resulted in any significant danger of unfair prejudice to the appellant. In my view the learned trial judge did not err in permitting the cross-examination.

127 The appellant denied having discussed or practised anal sex in the past. Even if the learned trial judge had been wrong to permit the cross-examination as to those matters, no miscarriage of justice would have resulted.

128 For these reasons, I think ground 1 should fail.

129 I agree with my colleagues that the learned trial judge erred in failing to permit counsel for the appellant to ask the complainant's daughter to identify the signature on the Singapore document as that of the complainant. The evidence that he was seeking to adduce related only to the credibility of a witness, namely the complainant, but would have had substantial probative value, and thus been admissible under s103(1). It would have added to the evidence given by the daughter as to the complainant having made a false complaint that her previous husband had attempted to rape her anally and vaginally. Having regard to the nature of both the Crown case and the defence case, such additional evidence would have had substantial probative value in my view.

130 I agree with Slicer J that the written directions given by the learned trial judge to the jury as to consent were wrong in law. They were based on legislation that came into effect after the dates of the alleged crimes. The legislation did not operate retrospectively. The directions in question did not relate to the assault charges, but only to the charges of rape and attempted rape. It follows that this ground of appeal relates only to the rape conviction on count 8.

131 The complainant's evidence as to count 8 was that she was resting in bed on a Friday afternoon when the appellant came in, said that he wanted to have sex, and punched her; that she said "No, I do not want to have anything"; that he said he wanted anal sex; that she said she had diarrhoea, trying to bluff him; and that he put on a condom and forcibly inserted his penis into her anus. It was suggested to her in cross-examination that she had injured her anus by putting something into it, but she firmly disagreed with that suggestion. A medical practitioner gave evidence for the Crown that she examined the complainant on the Monday (2 February 2004), and noticed a very painful split in the anus and extreme tenderness all around the anal area. She said that the split was consistent both with anal sex and passing a large stool, but that the tenderness was consistent only with anal sex, and not with passing a large stool. In the appellant's evidence-in-chief, he said that he definitely did not rape the complainant vaginally, orally or anally as she had alleged. He was cross-examined in relation to count 8. He said he did not think the complainant was lying down on the Friday afternoon; that he did not go into the bedroom on the Friday afternoon to his knowledge; that he thought the complainant was in town on the Friday afternoon; that he definitely did not have anal sex with her on the Friday afternoon; that she definitely did not tell him that she had diarrhoea; and that it was not true that he responded by getting a condom and putting it on. When asked whether the complainant had bled as a result of anal sex, he said that it did not happen. When asked whether the complainant made it pretty clear that she did not want sex with him, he again said that it did not happen. That was the extent of the evidence directly relevant to count 8.

132 In order to determine whether the errors of the learned trial judge should result in the appeal being allowed, one must have regard to the Criminal Code, s402(1) and (2), which provide as follows:

"402 (1) On an appeal the Court shall allow the appeal if it is of opinion 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, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

Legislative provisions of this nature have existed in England and all Australian jurisdictions for many years. Section 402(2), like its counterparts, is commonly referred to as "the proviso".

133 In the recent case of Weiss v R [2005] HCA 81; (2005) 80 ALJR 444 the High Court dealt with the approach that should generally be taken to the application of the proviso, and made a number of comments relevant to cases, like this one, where there has been a substantial factual controversy at trial. The following propositions appear in the judgment:

•

When an appellate court has to consider whether a "substantial miscarriage of justice has actually occurred", it should consider whether it "is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty". See par44.

•

"... the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial." See par 43.

•

Legislative provisions in the form of s402(1) and (2) were enacted in England and the Australian jurisdictions in order to abrogate the "Exchequer rule", which had been understood to mean that a new trial was to be granted on the basis of a "miscarriage of justice" whenever there was "any departure from trial according to law, regardless of the nature or importance of that departure." See par 18.

•

In a case where conflicting evidence has been given at trial, an appellate court might conclude that another jury might take a different view of the credibility of witnesses from that apparently taken at trial. If that were enough to lead the appellate court to conclude that the proviso did not apply, "such an approach would again tend to readopting the Exchequer rule, for it would preclude applying the proviso in any case in which there was a substantial factual controversy at trial. Yet as the history of the criminal appeal provisions reveals, the legislative objective in enacting the proviso was to do away with the Exchequer rule and the language of the proviso is apt to achieve that objective." See par 38.

134 Generally speaking, the new definition of consent that was erroneously adopted by the learned trial judge is less favourable to accused persons than the definition that applied at the relevant time. For the purpose of determining whether a substantial miscarriage of justice has occurred, it is necessary to consider whether in this case the use of the wrong definition would or should have had no significance in the determination of the jury's verdict of guilty on count 8.

135 In my view the only substantial difference between the two definitions concerns the communication of consent. Because of the provisions of the new s2A(2)(a), a person may not be taken to have consented to sexual intercourse if that person "does not say or do anything to communicate consent". Before that provision came into force, uncommunicated consent still amounted to consent. The jury in this case must have been satisfied beyond reasonable doubt that the appellant inserted his penis into the anus of the complainant, and that she did not say or do anything to communicate consent to that act. Bearing those findings in mind, it is necessary to consider the likelihood that that jury, if properly instructed, would have acquitted the appellant, not being satisfied beyond reasonable doubt that the complainant did not silently or passively consent to the act of anal intercourse. In my view that possibility is fanciful in the extreme. Insofar as the misdirection concerned the communication of consent, I believe it was of no significance in the determination of the guilty verdict on count 8.

136 In my view the new definition of consent did not change the law in relation to any matter other than the communication of consent. Under the repealed s2A(1), which should have been the basis of any direction as to the meaning of "consent" in this case, "consent" referred to "a consent which is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which the consent is given". There followed, in the repealed s2A(2), a non-exhaustive list of circumstances in which consent was said to be "freely given". The new s2A(2) contains in nine paragraphs a non-exhaustive list of circumstances in which "a person does not freely agree to an act". Paragraph (a), to which I have referred, relates to the communication of consent. Paragraphs (b) to (e) inclusive set out circumstances which could not, under the repealed s2A, have been regarded as referring to "a consent which is freely given". They cover situations where a person:

"(b) agrees or submits because of force, or a reasonable fear of force, to him or her or to another person; or

(c) agrees or submits because of a threat of any kind against him or her or against another person; or

(d) agrees or submits because he or she or another person is unlawfully detained; or

(e) agrees or submits because he or she is overborne by the nature or position of another person; ...".

Paragraphs (f) to (i) inclusive set out circumstances which, under the repealed s2A(1), could not have been regarded as referring to consent "given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which the consent is given". They cover situations where a person:

"(f) agrees or submits because of the fraud of the accused; or

(g) is reasonably mistaken about the nature or purpose of the act or the identity of the accused; or

(h) is asleep, unconscious or so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required; or

(i) is unable to understand the nature of the act."

This analysis reveals that the repeal and replacement of s2A has resulted in only one change to the law, namely the introduction of the provision in the new s2A(2)(a) whereby a person now does not consent if he or she "does not say or do anything to communicate consent". In my view the error made at trial as to the definition of consent can have had no significance in the jury's determination of the guilty verdict on count 8.

137 However, the same cannot be said of the error in disallowing cross-examination as to the signature on the Singapore document. As Evans J has pointed out, the jury acquitted the appellant of all the charges in respect of which the complainant's evidence was uncorroborated; there was corroboration as to count 8 to the extent that there was medical evidence of anal intercourse having taken place; and there was no corroboration of the complainant's evidence that such anal intercourse was without her consent. Had the daughter given evidence identifying the complainant's signature on the Singapore document, that document would have been tendered as an exhibit. It would have been open to the jury to find that the complainant had adopted the contents of the document by signing it. Without that document as an exhibit, the jury had no evidence of its contents. Although counsel for the appellant cross-examined the complainant as to its contents, she denied that the document was her statement.

138 This is a case in which another jury might take a different view of the credibility of witnesses from that apparently taken at trial. Since s402(2) was not intended to effect a re-adoption of the Exchequer rule, that is not the end of the matter. The fact that the jury returned four guilty verdicts must be taken into account in assessing the whole record of the trial for the purpose of determining this appeal.

139 In relation to the assault charges (counts 3, 4 and 14) I see it as very significant that the record contains evidence of injuries that substantially corroborated the complainant's evidence. Taking the guilty verdicts on the assault charges into account, I am persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the appellant's guilt on counts 3, 4 and 14. As to count 8, I am not persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the appellant's guilt. As to that count, I am not able to conclude that, in the words of s402(2), "no substantial miscarriage of justice has actually occurred".

140 It follows that the appeal should be allowed, and that there is no need for me to address the grounds of appeal concerning the appellant's sentence. I would make orders allowing the appeal, quashing the conviction on count 8, ordering a new trial on count 8, quashing the sentencing orders, and remitting the matter to a single judge for re-sentencing on counts 3, 4 and 14. In my view there is no reason for the learned trial judge not to undertake that re-sentencing.