Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Unreasonable or insupportable verdict - Whether verdicts inconsistent - Whether verdicts unsafe and unsatisfactory - Role of appellate court.

McKenzie v R [1996] HCA 35; (1996) 141 ALR 70; M v R [1994] HCA 63; (1994) 181 CLR 487, followed.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Misdirection and non-direction - Consideration of summing up as a whole - Whether defence case was put fairly to the jury - Principles to be applied.

Brown v R [1971] Tas SR 57; R v Whittingham (1988) 49 SASR 67, considered.

Judgment Number: [2000] TASSC 182

1 The appellant was tried on six counts of sexual offences which were allegedly committed by him upon the complainant at her home within a period of about 3½ hours in the early hours of the morning of 30 December 1996. The first count alleged an indecent assault which, in substance, took the form of his undressing her and then fondling and licking her breasts and vagina. The next act alleged was one of digital penetration by him of her vagina, following which he allegedly raped her by penetrating her mouth with his penis. The fourth, fifth and sixth counts alleged vaginal rape. In respect of the last count, she alleged that the appellant had ejaculated inside her vagina. After nearly six hours of deliberation, the jury returned a unanimous verdict of guilty on counts 1 and 6, but acquitted the appellant of the intervening counts, on count 3 unanimously and on the others by majority. During the course of their deliberations, they asked to be, and were, reminded of the evidence relating to some of the counts on which they ultimately acquitted him. Counsel for the appellant submits that the verdicts are inconsistent and contradictory.

2 Among the relevant principles stated in the joint judgment of Gaudron, Gummow and Kirby JJ in McKenzie v R [1996] HCA 35; (1996) 141 ALR 70 at 83 - 84 are the following:

"(3) Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (13 December 1954, unreported) is often cited as expressing the test (See eg R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995) vol 1 at par 4-457).

He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

(4) Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense (See Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71; (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172). Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted (R v Wilkinson [1970] Crim LR 176). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury (Hayes v The Queen (1973) 47 ALJR 603 at 604-605). In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt (R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40). Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries (R v Hunt [1968] 2 QB 433 at 436). ...

(5) Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty (R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983) at s15.212, requiring that the verdicts be 'so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion': R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser [1845] EngR 363; (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153). More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law (R v Zundel (1987) 35 DLR (4d) 338 at 401-402 applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313). It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (R v Drury (1971) 56 Cr App R 104 at 105). It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'.

(6) The obligation to establish inconsistency of verdicts rests upon the person making the submission (See R v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758)."

3 In essence, this was a case of the complainant's word against that of the appellant as to the absence of consent and the doing of the acts alleged to have occurred. His position at trial was that conduct of the type complained of in count 1 had occurred with the complainant's consent and that none of the other acts occurred at all, he having ejaculated prematurely on the bed where they were lying and being unable to procure another erection, while she had terminated the encounter through feelings of guilt. Later on the day the offences occurred, she had complained to a response officer with the Sexual Assault Service that she had been raped, no details being given, and had been examined by her own doctor, who gave no evidence as to the matters complained of by her and who specifically agreed in cross-examination that she had not complained of the alleged act of oral penetration. The doctor had observed quantities of semen in the vagina and had taken swabs from it, but had taken no swabs from the complainant's mouth. Other forensic evidence showed a high degree of probability that semen detected in large quantities on the bed had come from the appellant, that it was probable the semen in her vagina had been deposited there at a time more likely to have been when the alleged offences occurred than when she had last had intercourse with her de facto husband (who was away on a professional fishing trip at the time of the offences), and that it could have been deposited by either the appellant or by the de facto husband, DNA testing being inconclusive to prove or disprove either of them as its source. The complainant agreed that prior to any act of penetration, she had noticed that the bed was wet and sticky, a fact consistent with his claim to having prematurely ejaculated.

4 The jury was rightly told to examine each count and not to convict the appellant thereon unless satisfied beyond reasonable doubt of his guilt on that count. The findings they made are consistent with their having been satisfied that the acts comprising counts 1 and 6 occurred without her consent, but that they were not satisfied to the requisite degree that the acts comprising the other four counts had occurred. In the circumstances, it would be remarkable had they been satisfied she had consented to some acts but not to others, two of which were of precisely the same kind, that is, vaginal intercourse, as that on which they had convicted. Indeed, had the only issue been one of consent, then having regard to the close link in time and nature of the alleged conduct, an acquittal on one or more counts would almost certainly have carried an acquittal on the others (see R v Whelan [1973] VicRp 26; [1973] VR 268, R v Kelly (1985) 38 SASR 561). However, this was not a case where the conduct complained of, other than in respect of count 1, was admitted and the issue therefore confined to consent. The more likely explanation for the differentiation is absence of satisfaction as to the occurrence of all the acts themselves. Disbelief of the complainant's claims on some of these matters did not logically require them to disbelieve her on all her claims. The doing of the acts comprising count 1 was common ground, consent being the only issue. There was no evidence of recent complaint in respect of digital penetration or the penetration of her mouth, and her complaint that she had been raped did not extend to a complaint of having been raped on several occasions. The verdict is consistent with the jury having been satisfied beyond reasonable doubt that without her consent the complainant had been sexually assaulted and raped at least once. The presence of semen, confirmed by the medical evidence, was capable of corroborating her claim that the appellant had ejaculated inside her on the last occasion she said vaginal penetration had occurred. In my view, there is nothing inconsistent in the jury, satisfied that counts 1 and 6 had occurred in the absence of any evidence other than her own, failing to be satisfied that all the other incidents had occurred, as she had described and giving to the appellant the benefit of such doubt as they had on the matter. There is no affront to logic and common sense in their verdicts.

5 The appellant also complains that the verdicts were unsafe and unsatisfactory. While there were matters upon which the defence relied as showing that the complainant's version lacked credibility, eg, her admission of him to the premises late at night with a bottle of wine for her and beer for himself while her husband was away on a fishing trip, the absence of complaint to the police when the local police station was situated only a short distance from her home, and her reluctance to report the matter to the police, these were all matters for assessment by the jury having regard to the impression they formed of the witnesses. The importance of this consideration is stressed by Mason CJ, Deane, Dawson and Toohey JJ in M v R [1994] HCA 63; (1994) 181 CLR 487. At 493 they said:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

There is nothing inherently improbable about the complainant's version of events such as to persuade an appeal court, without the advantage of having seen the witnesses, that the verdicts are unsafe or unsatisfactory. In my view, this ground is not made out.

6 The second ground of appeal is that the learned trial judge failed to fairly put the defence in his summing up, that his summing up was unfair and that in consequence a miscarriage of justice has occurred. The Crown case was that the appellant had been permitted to stay at the complainant's home at Orford in the spare room next to the master bedroom usually occupied by her and her de facto husband. Access to the latter room could only be gained through the spare room. Her three year old daughter slept in a nearby room. The complainant claimed that, being a little apprehensive of the appellant's intentions because of earlier indecent comments by him in the loungeroom, she had retired, not to her own bedroom but to that of her child and had gone to bed there fully clothed. After some time, the appellant had entered that room clad only in underclothing, had touched her breasts and had tried to get into bed with her. She tried to repulse him, but he forced her to get up and moved her into the spare room where each of the incidents alleged in the indictment had occurred. At their conclusion he had apologised and left. She had showered before his departure and after he left, she went to sleep for about three hours. At approximately 7.30am, she had rung the Sexual Assault Service and left a message for her call to be returned. When it was, she complained of being raped. She also rang the AIDS Council, but it was not open. She attended an appointment with her doctor later in the morning. She said she did not report the matter to the police until the late afternoon of that day because she was afraid the appellant would tell them she had sold him cannabis and that she would be imprisoned and separated from her daughter. The appellant, when interviewed by police, admitted having gone to the complainant's home, taking alcohol with him, and having engaged in sexual activity of the kind alleged in count 1 in the living room of that home. He claimed that after a time and before any intercourse had occurred, the complainant made it clear that she did not wish to take matters any further, that he had accepted the situation and that he had then left after declining her offer of a lift to Triabunna. Later in the interview when the complainant's version was put in detailed sequence, he denied having ejaculated on the bed, having taken her from the child's bedroom to the spare bedroom, having been in a partial state of undress himself and having engaged in the acts of intercourse alleged. He did admit to having entered the spare bedroom for the purposes of smoking a bong and said that while there, they had engaged in "more of the same", that is, conduct of the kind in count 1 which he agreed had also occurred in the living room.

7 At trial, he gave evidence that he was invited to enter the house and that in the loungeroom, with the child asleep on the couch near them, he had made sexual overtures to which she had responded. He had partially undressed her and of his clothes, had taken off only his jumper. He went to the spare room to have a bong and she entered, after which they both lay on the bed, he fully undressed her and kissed and licked her breasts and vagina. At no time did he penetrate her body, but became over-aroused and ejaculated. He was unable to procure a further erection, her attitude changed, she had a shower and he left, declining her offer of a lift from Orford to Triabunna.

8 In Brown v R [1971] Tas SR 57, this Court said:

"Provided the jury are adequately warned that it is their responsibility to decide all disputed questions of fact, a judge is entitled to make comments, and strong comments if he sees fit, upon the evidence. Indeed he has a statutory duty under s371(j) of the Criminal Code to make 'such observations upon the evidence as he may think fit to make'. The notion that the function of a judge is to indulge in a colourless recitation of the evidence and a mere repetition of arguments put by counsel on both sides, is to be firmly rejected. There are innumerable authorities supporting the right of a trial judge to express strong opinions to a jury on questions of fact." (at 69)

"A judge is not bound to repeat the submissions of defence counsel without criticism where such criticism is fair and justified. An appeal or application to appeal against conviction cannot succeed merely because directions of a judge are adverse to the defence, as long as the judge leaves it to the jury to come to the decision."

9 In Babbage v R 44/1982, the Court said at 4 - 5:

"... it has been many times said by courts that a trial judge in summing up may comment strongly upon the evidence, and in doing so may leave little doubt about his personal views of its weight, provided that he makes clear to the jury that the decision of these and all issues of fact in the case is for them and not for him. Useful statements upon the matter are to be found in a judgment of the Court of Criminal Appeal of Victoria in R v Kerr (No 2) [1951] VicLawRp 31; (1951) VLR 239 at p 247. One of the complaints about the summing up there was that the trial judge had given 'a partial and one-sided presentation of the facts, leaning heavily towards the Crown'. The court said:

'There are many reasons why an appellate tribunal should be slow to interfere with the result of a trial upon the ground that the Judge's charge is not as full and impartial as might be desired. For one thing, he has seen the course of the trial, and, in particular, has heard the addresses of counsel, and his own comments must be read in the light of what has preceded them. Further, he is entitled to comment upon the evidence and offer such observations as he thinks fit, provided that he makes it quite clear to the jury that they are the judges of the facts and are free to accept or disregard his comments as they choose. He is not obliged to tell the jury everything which he might have told them.'

The court then cited with approval a passage from the judgment of Lord Reading, LCJ, in R v O'Donnell (1917) 12 Cr App R, 221, as follows:

'A Judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issues of fact to the jury to determine. A Judge obviously is not justified in directing a jury, or using in the course of his summing up such language as leads them to think he is directing them, that they must find the facts in the way which he indicates. But he may express a view that the facts ought to be dealt with in a particular way, or ought not to be accepted by the jury at all.'

Their Honours also cited a passage to similar effect from R v Mason (1924) 18 Cr App R, 131, at p132. See also, Frost v R (1969) Tas SR, 172 at 176-7, where the point was made that every summing up must be considered in the light of the conduct of the trial and the questions which have been raised by counsel on either side; Brown v R (supra) at 62-3; R v Dutton (1979) 21 SASR, 256; and Carter's Criminal Law of Queensland, 5th edn, para 620.

However, the trial judge's right to comment strongly upon the evidence and indicate his own view of it is not without limitations. In R v Middlesex Court of Sessions, Ex Parte Director of Public Prosecutions (1952), 36 Cr App R, 114 at 122, the court said there is no doubt that a judge may express his own opinion on matters arising out of the evidence, 'provided he does it temperately and fairly'. In Broadhurst v R (1964) AC 441, at p 464, the Judicial Committee of the Privy Council emphasised that an appellate court may interfere if it thinks that the trial judge went too far in expressing his own view."

In the case of Babbage, the trial judge had described the accused's defence in terms of his having been framed by a conspiracy between all the police officers called on behalf of the prosecution. That was not the defence case and the unfairness of the trial judge's comments was said to be that "they attributed to the applicant a direct and specific attack on the character of all the relevant police witnesses which a perusal of the closing address made by the applicant's counsel persuaded the court he carefully avoided making".

10 Appeal courts have intervened when the language of the trial judge is too emotive or partial. In Green v R [1971] HCA 55; (1971) 126 CLR 28, Barwick CJ, McTiernan and Owens JJ in their joint judgment, said, at 34:

"... the trial judge himself betrayed an emotional approach to the facts which reflected itself in the language he employed. He presented his own view which was frequently, though not always, unfavourable to the accused. He was of course entitled to express his opinion of the facts as long as he made it clear to the jury that they were not bound by his views. But, although at several points the jury were reminded that the facts were for them, we have come to the conclusion that this summing up transcends anything that a trial judge was entitled to do in the circumstances. In reading and re-reading the whole summing up we have been driven to conclude it was unfair, lacking in judicial balance and so partaking of partiality as to render this trial a miscarriage of justice."

11 In Ali v R (1982) 6 A Crim R 161, Street CJ said at 165:

"It is frequently said that a summing up must present a balanced account of the conflicting cases. But when one case is strong and the other is weak it does not follow that a balanced summing up will be achieved by under-weighting the strong case and over-weighting the weak case. If one case is strong and the other is weak, then a balanced account inevitably will reflect the strength of the one and the weakness of the other."

12 Nor is a trial judge constrained to put to a jury only such arguments as the parties have advanced. In Evans v R (1990) 91 Cr App R 173, the Lord Chief Justice (Lord Lane) said, at 173:

"The judge in directing the jury is not confined to the arguments which are propounded by the prosecution on the one hand or the defence on the other. Providing the matters with which he deals are matters which have been given in evidence, it is open to him to comment upon them."

13 In R v Whittingham (1988) 49 SASR 67, King CJ, at 70, said:

"... a defence is not properly put to a jury, generally speaking, if the material which is put forward by the defence is referred to in a way which is intermingled with disparaging and adverse comments upon it. The appropriate and desirable way in which a judge should put the defence is to explain the evidentiary material which the defence puts forward to the jury; explain its bearing upon the legal issues of the case, and then, in a separate part of the summing up, if he so desires, make his own observations about the defence, just as about any other factual matters arising in the case."

14 In R v Bolic and Judd [1969] Qd R 295, Douglas J cited from the opinion of the Judicial Committee in Broadhurst v R (supra) the statement at 464 thereof:

"... the summing-up as a whole cannot be accepted as a fair presentation of the case to the jury. A fair presentation is essential to a fair trial by jury. The appellant has thus been deprived of the substance of a fair trial."

"In the instant case we think that, even though the jury were told frequently that the determination of the facts was a matter for them, the trial Judge went too far in revealing his views, and did so to such an extent that the jury may well have been overawed."

15 The appellant complains about ten statements made by the learned trial judge in the course of his summing up of the Crown case and a further seven while dealing with the defence case. The first complaint was of a comment that the appellant's submission about being in the spare room had been made very late in the police interview and the activities there "had not been the focus of what he was telling the police about in his interview". His Honour had been dealing with the police interview as part of the Crown case and the Crown had been making the point that the appellant, in that interview, had shifted ground, starting from what counsel described as "an absolute denial" and progressing to limited concessions. In my view, the learned trial judge's comment was completely fair and appropriate.

16 The second comment was one to the effect that a witness, Mrs Payne, had claimed that the complainant was at her home between 1.30 and 4.30 on the afternoon before the offences occurred. His Honour said:

"... if you accept that evidence that would mean that the accused's evidence about having spoken to [the complainant] at three o'clock that afternoon and, you know, saying he'd be round and that she said, 'Yes, no worries', well, you might be inclined to reject it".

Again, it was a perfectly fair and moderate comment on a matter which Crown counsel had invited the jury to accept as a deliberate lie on the appellant's part.

17 The third complaint was not really developed, but related to an invitation by his Honour for the jury to keep in mind, as he took them through the appellant's evidence, certain evidence indicating the latter as the source of the seminal stains on the bed in the spare room and the fact that the DNA evidence could not prove his semen was in the complainant's vagina. I can see nothing objectionable in that statement.

18 The fourth complaint is of his Honour's comment on the appellant's evidence that he never wore a watch. He said:

"Well you might think that's significant evidence because that seems to break down any problems that he has in relation to times in his earlier statement to the police. It means that it's less safe for you to rely on his estimates of times. You might also think that that was convenient, from his point of view, it is a matter for you to assess."

As Crown counsel had characterised his claim of seeing the complainant at 3 o'clock as a deliberate lie, the comment had the effect of neutralising that suggestion, but on the other hand the claim not to wear a watch was capable of being interpreted as convenient. It was left up to the jury to make the assessment for themselves. There is no substance in this complaint. Much the same comment was repeated in contrasting his statement to the police with his evidence on trial. His Honour said:

"Now, these are all matters for you but it seems to me that the changes made in his evidence were: He was much less precise about time and he now doesn't - he never wears a watch. And you might, and this is, as I say, entirely a matter for you, think that's rather convenient in terms of Sandra Payne's evidence."

Again, I do not regard the complaint as having any substance.

19 The next two complaints are of comments made immediately after the last one. His Honour said:

"His sexual activity with [the complainant] had changed from focusing on her breasts and related activity and half pulling her pants down, at which point he was rebuffed because of her 'attack of the guilts' to a quite different activity. She is naked on the bed and oral sex occurs and that oral sex brought on a premature ejaculation by him. Now, it's again a matter for you, but you might think that he has changed the place of the - or the primary place of the sexual activity, from the loungeroom to the spare room, and you just might think that that's rather convenient because these changes now explain how it is that his semen is on the sheet in the spare room. That is a complete aside. But you might think it is convenient too because on his evidence [the daughter] is asleep on the - in the lounge and you just might think it is unlikely that the sort of activity that has been talked about would be going on in that room while the three year old daughter was asleep on the lounge."

"Other differences which you might recall are that he denied when he was interviewed by the police that he told her to play with herself, that he now has incorporated that in his evidence. Although, as he put it in his evidence, he jokingly told her to play with herself. Now, the question for you is: Did he make the changes between what he said to the police and what he said to you in the witness box to adjust his evidence to overcome the DNA evidence and other matters."

There was a clear discrepancy and his Honour was entitled to comment on it. He did not do so unfairly.

"Do you believe that she went to bed in [the daughter's] room fully clothed? If you do, do you think that was a clear indication that whatever had happened previously that night with the accused she was not interested in further sexual involvement with him?"

It was a valid comment if the jury were to accept her evidence that she retired to bed fully clothed. He did not urge them to make such a finding.

"Now, in considering this matter, members of the jury, I would suggest to you that for a man or a woman to behave imprudently or to flirt doesn't mean that they consent to whatever sexual activity another party forces on them as a consequence of the opportunity that that party perceives as being provided to them. It's a matter for you, this is a factual issue. But if you find that the facts are along that line, I would suggest to you that imprudence and flirtation does not amount to consent."

The learned trial judge's comment was fair and, as a matter of law, impeccable. In the circumstances it was highly desirable to stress that mere flirtation and imprudence did not amount to consent. At another part of the summing up, his Honour gave very favourable directions in respect of an honest and reasonable, but mistaken, belief in consent, possibly made in reliance upon the imprudent behaviour of the complainant.

23 When the learned trial judge came to review the defence case, he pointed out that it was a total denial of what the complainant said occurred and that it was to the effect that she at no time had gone to bed in the child's room. The defence case related, he said, to a different period of time prior to her going to bed and involved the development of a flirtation in the living room to oral sex in the spare room. He then made a series of comments about which complaint about unfairness is made. They were to this effect:

"Mr Hodgman put to you a number of rhetorical questions. Why did [the complainant] permit Mr Williams to come into her home bringing alcohol at that time of night when her husband was away. Well, that's the question for you. He was a friend, she said she was lonely, you've heard her evidence, you make your decision about it. He asks why, when she was upset because he had touched her foot and made a comment about her breasts, the Mickey Mouse nightie, why didn't she tell him to go? Well, again, it's a matter for you. She has given her explanation that she had previously asked, invited the accused to sleep that night, she took some precautions, you might think, she went to [the daughter's] bedroom and slept there with her clothes on. And Mr Hodgman also puts to you, why, if she had these concerns, - well, sorry, because I am not sure at one point what the concerns were and as I say I am not sure, it is not clear to me on the evidence which particular point. But, why, as she says she did, did she take [the daughter] out of the room at some stage during the night and put her into her bedroom? Well, again, it's a matter for you. It's her three year old daughter being put to bed. Is there something sinister about her doing that? Does that in fact mean that she consented and if she consented. Consented to what? The accused's evidence is that he didn't have penile intercourse with her at all.

And, again, Mr Hodgman puts to you the rhetorical question, why did she ask him to stay. Well, she's given her evidence about that and it is a matter for judgment, but perhaps if someone has had a fair bit to drink or is starting to drink and they have had a bit of marijuana and they're a long way from where they are known to stay it's not an unreasonable thing to offer them a bed.

In terms of her inviting him to stay, why did she have in mind the spare room proximate to her bedroom? Was she contemplating misbehaving and was she making -arranging for him to sleep in a bed other than the sacred bed which she and her de facto husband used?

Well, how you work that out is, again, a matter for you. But the defence case is that the accused didn't sleep in that bed and that he wasn't invited to stay at night, but if one turns it round and says, well, we are dealing with this purely on the basis of the evidence of [the complainant], which other bed in the home would you have expected a guest to go to sleep in? On the evidence that I have heard I am not aware of any other bed that one would contemplate having put a guest in, particularly if you were going to sleep in [the daughter's] room.

Then Mr Hodgman says, well, why, when the accused finally left at 4.30 didn't she ring someone? Well you have heard her evidence about that and you are well aware that at that time she wasn't going to involve the police."

24 These comments were not favourable to the defence. The points which defence counsel had made were not, however, disparaged, still less demolished. The jury were, in substance, reminded of the complainant's own explanations for the conduct the subject of the rhetorical questions and the putting of the child to bed in another room and the offering of a bed in the spare room at Orford to a visitor who lived at Triabunna and who may not have been fit to drive was suggested as not unreasonable courses. The remarks were neither unfair nor intemperate.

25 Immediately after these remarks, the learned trial judge said:

"Mr Hodgman criticised as a very low allegation her evidence to the effect that the accused had threatened her that if you tell anybody about this I will put you into the police for selling cannabis to me and you'll go to prison and be separated from your child. That was criticised because he said that she had only recently first mentioned it to Miss Mason and Mr Stoddart - Miss Mason last year and Mr Stoddart this year. And he put to you that it's a fanciful allegation, it wasn't mentioned to Ms Polglase or Dr Lavers or the police. Well, again, you just think about that. You might think that revealing that threat to the police at that time would reveal the very matter about which she had concern, the fact that she had been dealing in cannabis. You might think that she was more worried about other things. It is simply an assessment you make in terms of the over-all evidence."

Counsel was entitled to put that this was a recent invention on the complainant's part, but in my view, the trial judge was equally entitled to point to a fairly obvious explanation for her failure to tell the police. The assessment of the comments was left in the jury's hands.

26 The next comment complained of came after several favourable to the defence, such as his reluctance on police interview to say anything about the consumption of cannabis and possible purchase of it from the complainant, her failure to complain to the doctor of an oral penetration, the likelihood that semen belonging to the appellant found on the spare bed would have been spread by their movements, countering a suggestion that its presence near the pillow supported the claim of oral penetration, and the confirmation its presence gave to his claim of premature ejaculation. His Honour said:

"As to the wine bottle, he made a point that she was, in effect, destroying evidence. Why would she get rid of it? I'm not quite clear about that point but I will remind you of it. If it really was significant evidence I assume that by the time the police were involved later that day it would still be available if they had been concerned about it or if she had been concerned about it. If it is meant to be a suggestion that she was in some way destroying evidence I am not sure why because there is no suggestion that she sought to destroy the bedding or other material or relevant evidence."

I think this was a fairly neutral comment. The defence sought to rely on the disposal of the partly consumed bottle of wine by her as an indication that she did not want her de facto husband to become suspicious that she had been drinking with visitors when he returned from fishing. However, that was the reason she gave for her action and this had been pointed out by the learned trial judge earlier in his charge when he said:

"She said she was getting rid of it so Adam [her partner] wouldn't know why she'd had a bottle of wine. She wasn't going to tell Adam that she'd been raped."

27 One of the defence's most strongly advanced submissions was that DNA detected on a pap smear taken by the doctor from the complainant on 30 December 1996 was incapable of being identified as that of the appellant. The presence of DNA from the complainant and two other sources was demonstrated, but neither the de facto husband (who it was not disputed had had intercourse with the complainant on Christmas Day) nor the appellant, could be shown to be the source of it. The final complaint is of this comment:

"Mr Hodgman ... put to you that if you convict the accused of rape you would be the first jury, one might well imagine, in the history of criminal justice to convict a person of rape when the scientist says I cannot match with any weight or significance any of his DNA inside her body. Well, you make your mind up about that, DNA is a comparatively recent invention and people have been charged and convicted of rape many, many, many times without anyone being able to positively identify who the source of the semen inside the victim's vagina is. I think, but it is a matter for you, that a little bit too much weight is being put on the fact that the DNA evidence doesn't prove that the accused's semen is inside [the complainant's] vagina. You will recall all that the DNA evidence does, or, you will recall that the DNA evidence is simply unable to exclude the possibility that his semen was in there. What it can do is, or, what it does do is provide evidence that there was semen in her vagina from two male sources."

28 What his Honour said was perfectly justified. The jury were obliged to make a judgment, having regard to the evidence. The DNA evidence could neither prove nor disprove the presence of semen from the appellant on the pap smear. Mr Hodgman, in his address, had stressed that as the doctor had observed large quantities of semen at her examination, there was a greater chance of getting a DNA profile. Nevertheless, the fact remains that the scientific evidence did not establish the presence of his DNA in the complainant's vagina. All it could prove was that DNA from two male sources could be detected, but not identified.

29 The learned trial judge made it quite clear in his summing up that the jury had the responsibility of determining all questions of fact. Early in his charge he said:

"Please clearly understand that if I express to you, or you think I express some particular view about the evidence in the course of my summing up you should treat that in the same way as you consider the submissions of counsel. You give my views whatever weight you think they deserve and no more in relation to the facts because they're for you to decide."

Many of the comments complained of were accompanied by reminders that it was a matter for the jury to assess their significance.

30 The substance of the defence case was put to the jury, that is, that the complainant consented to the initial sexual encounter which comprised the activities complained of in count 1, but that no further acts of a sexual nature occurred as alleged in counts 2 - 6. I do not think it can validly be maintained that the defence was not put to the jury or that it was in any way misrepresented; nor were the comments about which complaint has been made intrinsically unfair, still less, in any way intemperate. Nor do I consider that when making those comments complained of during the course of the defence case, the learned trial judge was intermingling disparaging and adverse comments in the sense used by King CJ in R v Whittingham (supra). They were not criticisms of the defence case itself. They merely reminded the jury of other considerations which, if accepted, could neutralise the defence's criticism of the Crown case.

31 In my opinion, there is no reason to suppose that the way in which the learned trial judge summed up led to a miscarriage of justice. The fact that the jury acquitted the appellant on four of the six charges demonstrates clearly that they were not overborne by any views they thought the trial judge may have expressed as to the guilt of the appellant. No one could pretend that it was a summing up favourable to the appellant, but it was not an unfair one and did not usurp the function of the jury. In my view, the learned trial judge's summation was balanced and reflected the strength of the Crown case which independently proved the intimate recent involvement of a man other than the complainant's husband, and the weakness of the defence case which never convincingly explained the changes between the accounts given by the appellant. I would dismiss the appeal.

32 I agree that the appeal should be dismissed for the reasons given by the Chief Justice. There is nothing I wish to add.

33 I have had the advantage of reading the reasons for judgment of the learned Chief Justice in draft form. I agree that the appeal should be dismissed. I agree with all he has written as to ground 1, but I would like to add a little to what he has written in relation to ground 2.

34 There was nothing unbalanced, unfair or overbearing about the comments made by the learned trial judge prior to his putting the defence case to the jury. However, the comments made during the putting of the defence case are of more concern. Whilst the jury were reminded of many arguments that had been advanced by defence counsel, more often than not the learned trial judge suggested competing arguments. The result was that he did not present the defence case to them in a way which enabled them to appreciate how strong the totality of the defence arguments were if viewed from a favourable perspective. However, a trial judge does not have the duty to go that far in putting the defence case to the jury, and the closing address of defence counsel had no doubt given the jury an opportunity to view the defence case from the most favourable perspective. Although the putting of the defence case was interspersed by the putting of arguments favourable to the Crown, those arguments were invariably put forward in a moderate way, without the defence arguments being ridiculed or disparaged. One could take the view that, by countering most of the defence arguments with competing arguments favourable to the Crown, an impression might have been created that there was an answer to nearly every point that defence counsel had sought to raise. However, I do not think it can be said that the summing up, read as a whole, was unfair, unbalanced or overbearing. I think it was appropriate for the learned trial judge to raise for the consideration of the jury all of the arguments that he suggested to them. I do not think it can be said that justice and fairness required him to recite the significant arguments of defence counsel without interruption or digression in a separate part of the summing up, and to present the competing arguments for and against the appellant, side by side as it were, at a separate stage. I think the learned trial judge came close to the borderline by putting forward so many arguments favourable to the Crown in the course of presenting the defence case, but I have come to the conclusion that he did not go so far as to deprive the appellant of his right to have the defence case put fairly to the jury.