Jones v R [1997] HCA 12; (1997) 143 ALR 52; (1997) 71 ALJR 538 (3 April 1997)

JONES APPELLANT

AND

THE QUEEN RESPONDENT

1. Appeal allowed.

2. Convictions quashed on both charges of rape and the charge of attempted rape.

3. New trial ordered.

Date of Order: 3rd April 1997

Oral Reasons for Judgment delivered: 14 March 1997

FC 97/009

On appeal from the Supreme Court of Tasmania

Representation

T J Ellis for the appellant (instructed by Clarke & Gee)

T J Bugg QC with C J Geason for the respondent (instructed by Director of Public Prosecutions (Tasmania))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Jones v The Queen

Criminal law - Evidence - Complaints - Appellant convicted of rape and attempted rape - Evidence of recent complaint adduced - No direction by trial judge concerning complaint - Necessity for direction about use of complaint - Whether absence of direction a miscarriage of justice - Whether direction required for modern juries or capable of being understood by them.

BRENNAN CJ, TOOHEY, GAUDRON, McHUGH AND KIRBY JJ. The appellant was convicted, following a jury trial, of rape and attempted rape. His appeal against conviction to the Court of Criminal Appeal of Tasmania was dismissed by majority (Underwood and Wright JJ, Slicer J dissenting).

Underwood and Slicer JJ each held that there had been error by the trial judge in failing to direct the jury as to the use they might make of complaints made by the complainant that the appellant had raped her. The complainant gave evidence that on three separate occasions she had complained to a total of five people. Three of those five persons testified that the complainant had accused the appellant of raping her. There was similar evidence from another person whom the complainant had not mentioned.

Underwood J accepted that there was evidence which the jury could have regarded as tending to show consent but held that, notwithstanding the absence of a direction, the appeal should be dismissed by the application of the "proviso"[1]. Wright J held that no direction by the trial judge was required in all the circumstances of the case but, in any event, applied the proviso. Slicer J held that a direction was necessary, that it had not been given and that the proviso was inapplicable.

It has been clear, at least since R v Lillyman[2], that upon a trial for rape or a kindred offence the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence, and the particulars of the complaint, may be given in evidence. It is not evidence of the facts complained of, but of the consistency of the conduct of the prosecutrix with her account in the witness box of the relevant events including her non-consent to the act of sexual intercourse, to which she deposes.

Lillyman was considered by this Court in Kilby v The Queen[3]. The point in Kilby was rather different from that in Lillyman but the English decision was referred to with apparent approval by the members of the Court. Indeed Menzies J, speaking of the use that could be made of a complaint, described a passage in the judgment in Lillyman as "all that needs to be said on the matter"[4].

The need for a specific direction as to the use which might be made of evidence of complaint is apparent from a number of decisions, including R v Freeman[5] and R v E[6]. Its need was rightly accepted by Underwood and Slicer JJ, as the respondent acknowledged in this Court.

Section 402(2) of the Criminal Code Act 1924 (Tas) provides:

" 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."

The operation of such a provision was identified by Fullagar J in Mraz v The Queen when he said[7]:

"If ... 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."

The appellant did not deny sexual intercourse with the complainant but he alleged it was consensual. And he denied the complainant's account of the circumstances in which it occurred. Thus the credibility of the complainant was very much in question. Slicer J put the matter this way:

"Given that the credibility of the complainant was central to the respondent's case, I am unable to conclude, notwithstanding the strength of the case against the appellant, that the respondent has shown that no substantial miscarriage of justice has occurred".

We agree with his Honour. The account which the complainant gave to others of what had occurred was, as Slicer J pointed out, "linked to the veracity of the account given by [her] to the jury". Unless the trial judge made clear to the jury the limited use they might make of the evidence of the complainant of her complaints and the evidence of those to whom she complained, there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged. The distinction may not be an easy one for a jury to grasp but this does not detract from the need for the distinction to be carefully explained. Unless explained, the evidence might well have played an important part in the jury's assessment of credibility.

There was no such explanation and, in our view, it is not possible to conclude that the appellant did not thereby lose a chance of acquittal which was fairly open to him.

We would allow the appeal, quash the appellant's convictions on both charges of rape and the charge of attempted rape and order a new trial.

[1] Criminal Code Act 1924 (Tas), s 402(2).

[2] [1896] 2 QB 167.

[3] [1973] HCA 30; (1973) 129 CLR 460.

[4] [1973] HCA 30; (1973) 129 CLR 460 at 474.

[5] [1980] VicRp 1; [1980] VR 1.

[6] (1996) 39 NSWLR 450.

[7] [1955] HCA 59; (1955) 93 CLR 493 at 514.