/ - UDGMENT No. 900/..8I= Lay CATCHWORDS CRIMINAL LAW - rape - scientific evidence - blood samples - whether summing-up adequate - expert witness - whether cross-examination on statements made by appellate judges in another case as to expertise of witness appropriate - whether verdict against weight of evidence - whether verdict unsafe. EVIDENCE - prior consistent statement - Crown witness cross-examined by Crown on prior inconsistent statement - no suggestion of recent invention - whether witness may be cross-examined for accused on prior consistent statement. CRIMINAL LAW - trial procedure - failure of witness giving evidence to appear after overnight adjournment - whether trial judge may issue warrant and question witness as to failure to appear in the presence of the jury - sheriff's officers acting as jury minders ~- failure to swear jury minder's oath - effect on trial. Evidence Ordinance 1971 (A.C.T.), ss.60, 61 Juries Ordinance 1967 (A.C.T.), 5.46 TERRENCE DOUGLAS HUMPHRIES v. THE QUEEN No. ACT G84 of 1986 CORAM: FOX, FORSTER AND KELLY Jd. Canberra 16 September 1987 sare wore ene me ee ees IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY NO. ACT G84 OF 1986 DISTRICT REGISTRY eee ee GENERAL DIVISION ON APPEAL from the Supreme Court of the Australian Capital Territory Criminal Jurisdiction BETWEEN : TERRENCE DOUGLAS HUMPHRIES Appellant Respondent MINUTE OF ORDER JUDGES MAKING ORDER: FOX, FORSTER AND KELLY JJ. DATE OF ORDER: 16 SEPTEMBER 1987 WHERE MADE: CANBERRA, A.C.T. THE COURT ORDERS THAT: 1. The appeal be dismissed. Nete: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Q a er ne a en on pn, 7 ee ae IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY NO. ACT G84 OF 1986 DISTRICT REGISTRY were ww we GENERAL DIVISION ON APPEAL from the Supreme Court of the Australian Capital Territory Criminal Jurisdiction BETWEEN : TERRENCE DOUGLAS HUMPHRIES Appellant THE QUEEN Respondent CORAM: FOX, FORSTER AND KELLY JJ. DATE: 16 SEPTEMBER 1987 REASONS FOR JUDGMENT FOX J. The appellant was convicted in the Supreme Court of the Australian Capital Territory on 21 November 1986 of the rape of Cassandra Jane Simpson, then aged 15. The appeal is against conviction and relates in the main to rulings of the trial Judge concerning the admissibility of some parts of the evidence and to an incident respecting the failure of a witness to reappear after the overnight adjournment. Criticism is made of the summing-up in one or two respects. The facts are more fully set out in the judgment of Kelly J. The first matter concerns the evidence of one David John Channell, a friend of the accused who was present throughout ns ee ree ee ee Se the events leading up to and including the alleged rape. His record of interview with the police in material respects corroborated the evidence of the prosecutrix, but on being called at the trial he at first professed to having no knowledge of the events in question, and then gave an account exculpatory of the accused. Leave was given to the Crown Prosecutor under s.60(2)(b) of the Evidence Ordinance 1971 (A.C.T.) to cross-examine the witness as to whether he had made a statement inconsistent with his evidence, namely the record of interview. In cross-examination, the witness admitted making the statements in the record of interview, but said that insofar as they corroborated the Crown case (to use my language), they were lies. He then volunteered that he had told the truth in another statement. This statement was identified as a statutory declaration, which the witness had prepared soon after the events in question, and which had been converted into an affidavit (which the witness identified) sworn by him. Leave' given under s.60(2)(b) does not constitute a general right to treat the witness as adverse, but in this case, without objection, the Crown Prosecutor proceeded as if the witness were adverse, as plainly he was. As the cross-examination was largely devoted to the record of interview and to the statutory declaration (cross-examination on which was directed to the question ot how it was that the witness had written it, in view of his earlier evidence that he could not read) no unfairness can be said to have occurred. meme a ==. eet ag ican a e-em e ee pm een — The answers given in the witness' record of interview constituted a substantial challenge to his oral evidence given in Court. None of the documents mentioned was tendered at any stage but when the witness was being cross-examined on behalf of the accused it was sought to get from him evidence that the statements made in his statutory declaration and affidavit were true, with a view to tendering those documents. In the discussion which ensued, in the absence of the jury, counsel then appearing for the accused said that his principal aim was in effect to show that the witness had no credibility at all and that the existence of a third version of events (contained in the affidavit and statutory declaration), upon which the witness was aboul to be cross-examined, would go to show that this was so. At a later point in the argument, counsel for the accused conceded that the version in the statutory declaration and affidavit was in all material respects consistent with Channell's sworn evidence, and did not seek to be heard any further on the question. The learned trial Judge then stopped further cross-examination of the witness on the basis that it was sought thereby to adduce evidence of a prior consistent statement. On appeal the matter has been presented to us rather on the basis that the statutory declaration and affidavit could have bolstered the witness' credit and enhanced his evidence exculpating the accused, but it appears both from his answers to the Crown Prosecutor and what is known of the contents of the statutory declaration and affidavit that this could hardly be so. It must have been clear to the jury that Channell had said on an earlier occasion that nothing wrong had taken place on the ee ee renee Pa Me eee a occasion in question, and Channell could have had very little credit in any event. There seems, in other words, to have been no possibility of an injustice in the Judge following the course he did and he was well justified in that course by what counsel said at the time. I am unable to see that there is any sound ground for treating his Honour's rulings in this connection as detrimental to a fair trial. There is no need to deal with the submission made on behalf of the appellant that a witness in criminal proceedings, cross-examined with regard to a _ prior inconsistent statement (oral or written) can be cross-examined (at least on behalf of the accused) to adduce evidence of a prior consistent statement (there being no apparent suggestion of recent invention). This question appears to be moot (see Phipson_on Evidence 13th ed. (1982) paras.33-49, 33-51; Cross on Evidence 6th ed. (1985) pp.265,6; 3rd Aust.ed.(1986) para.9.41; cf. Wiqmore on Evidence paras. 1126-7). Apparently, the answer will turn on the particular circumstances, but I would think that the rationales of the established rules would have to be borne in mind. In the present case there was a situation in which the cross-examination might have been permissible, but, as I have endeavoured to explain, refusal to allow it could not have led to a mistrial. The next matter concerns the same witness. Although aware that he was required to be present on the resumption of the hearing after the overniqht adjournment, he did not appear. Inquiries were then made by the trial Judge, acting in the presence of the jury, and when they were not productive he f " ordered a warrant to issue, also in the presence of the jury. At some later stage whether in response to the warrant, or not, it is not clear, Channell appeared and there was a short discussion between his Honour and himself as to the reason for his non-appearance. It is said that that might have discredited him in the eyes of the jury, but as [I have indicated, it seems apparent that he could have had very little, if any, credit in any event and it had been the object of counsel for the accused to make this apparent. Counsel's purpose might well have been for the accused's case not to be encumbered by an unreliable witness (even although called by the Crown) having in mind that the jury could have concluded there was friendship or collaboration between the two. In any event, it seems to me that the adoption of this procedure was well within the learned trial judge's discretion, having in mind the risk of speculation by the jury as to the cause of the delay. It does not seem to me that these events can constitute any basis for upsetting the conviction whether taken alone or with all other matters that are raised. A challenge is made to the direction of the learned judge concerning the scientific evidence. The matter at issue was whether the swabs taken from the prosecutrix' vagina were consistent with the rape alleged or on the other hand inconsistent with it. The prosecution called a Mrs Clancy, who gave evidence that she had found semen, together with A and B blood group substances, on the swabs. The accused was what is known as a "B secretor", that is to say that his semen contained B blood group substances only. Mrs Clancy however gave evidence tf that the A or B blood group substances found could have been the result of bacterial contamination of the swabs, so that in her opinion the presence of both A and B biocod group substances could have been as a result of semen containing B blood group substances originating from the accused, together with A blood group substances formed as a result of bacterial action. Two scientists called by the defence, Dr Gutowski and Professor Boettcher, gave evidence that in their opinion this explanation was far less likely than the semen originating from an AB secretor. But the total effect of the three scientists' evidence, as was agreed on the hearing of the appeal, was that the results of the tests still left the possibility (strong or weak) that the accused had had intercourse with the prosecutrix. It remained for the jury to consider all the circumstances in coming to a conclusion as to whether the crime had been committed. Criticism has been made of the comments of the learned Judge concerning this matter but I have read carefully the transcript of his directions to the jury and it does not seem to me that there is any valid ground for regarding what he said asa misdirection. His summary of Mrs Clancy's evidence (about which complaint was made) was quite fair. Exception was also taken to the following statement:- "So you might think in the end, members of the jury, really, that the Crown evidence on this point is really equivocal. It is consistent with innocence and it is consistent with guilt, in the sense that it is consistent with the semen originating from the accused and it is consistent with jt not originating from the accused." oe ee more pr ee one ave > However, he then continued, explaining the effect of the evidence of the the defence witnesses Dr Gutowski and Professor Boettcher - "that it is more likely that the swabs came from an AB secretor than that they came from a B secretor such as the accused, and were subsequently contaminated. They say there is a greater likelihood that the swabs came from an A/B secretor than there is a - I am sorry, I put that badly. I will put it again. They say the likelihood that the swabs came from an A/B secretor is more likely than the contamination theory." He spent a little longer on the subject and concluded - "I do not think it desirable that I try to explain it to you in any greater detail." On hearing of this appeal it was agreed that there had remained a possibility that the semen came from the accused. Taken as a whole, the summing-up on this matter put the defence case with substantial accuracy. His Honour made it quite plain that it was for the jury to decide the matter, on the evidence that they had heard. I am therefore unable to find any substance in this complaint. Criticism was made of questions asked of Professor Boettcher in relation to his credit. The Crown Prosecutor asked several questions relating directly to the comments made about his evidence by judges in another case (Reported in Chamberlain v. R. (1983) 72 F.L.R. 1 at 30; Chamberlain v. R. (No. 2) (1984) 153 C.L.R. 521 at 558). Counsel for the accused objected to the use of a transcript of those judgments in connection with this line of cross-examination, and his Honour said - "Well, it does not matter what the document says. you can cross-examine the witness about what other people have said a a ao er ee ee Y om 2, cerns & about him but unless the document itself is admissible you cannot get the content in this way." In my view these questions should not have been asked. They were question which were concerned with another case and the conclusions formed by judges in that other case as to the weight of Professor Boettcher's evidence and his apparent behaviour in that other case. Particularly objectionable was the following question by the Crown Prosecutor:- "T put it to you that the chief justice then in the High Court in the Chamberlain case, in a joint judgment, said exactly what I said about you, that your practical forensic experience is negligible." There was interruption by his Honour who said: "Well, I will be telling the jury that they have got to make up their own minds on this issue no matter what the chief justice or the Queen or the Pope or anybody else has said about his ability." The question remained unanswered. As the report (cited above) makes clear the Chief Justice did not say what was put to the witness; if anything, his comments qualified adverse comments made in the Court below. His Honour dealt with the matter in his summing-up as follows:- "You do not have to accept what any particular witness says, be he the expert or otherwise, and I think you will recall that during the course of the cross-examination of Professor Boettcher something was put to him about his reputation having suffered asa result of what a judge had said about him in a previous case. Well, let me say, members of the jury, it does not matter what anybody else has said about him in the past, it is your decision as to what you think about him, although you may take into account what has been said about him by other people in the past. You give that weight you think it deserves but it is your view in the end that is to decide the case." cae mre arene = a The offending part of this statement is the passage "...you may take into account what has been said about him by other people in the past". In my view the correct course would have been to tell the jury to put out of their minds what had been said by the others and his Honour's direction was therefore inadequate when he invited the jury to give the evidence what weight they think it deserved. Of course, Dr Gutowski had given evidence which was relevantly to the same effect of that of Professor Boettcher. I am satisfied that no miscarriage of justice occurred. There was no doubt of the possibility of contamination and of its effect and the other evidence was strong. At the most, the submission goes slightly to the degree of the possibility, which the jury were plainly told was a matter for them. The final ground of appeal was that instead of sworn jury minders sworn in accordance with s.46 of the Juries Ordinance (1967) (A.C.T.) being with the jury after about 5 p.m. on 21 November 1987, this role was taken over by the Sheriff and Deputy Sheriff, who were not sworn. Nothing untoward happened, but it is submitted the fact alone, which occurred because of an industrial dispute, is sufficient to lead to the quashing of the verdict. No authority was cited for this contention, and in my view it is unsound. It is undoubtedly desirable that care be taken to ensure compliance with the Juries Ordinance, but in this case the non-compliance is not shown to have had any effect on the trial, and having in mind the official positions of the persons appointed, was not in the least likely to have done so. ae + ooo _ nme man 10. It can be said that not one of the matters of which complaint is made in this appeal was the subject of any complaint or application which was pressed or pursued at the trial. The Judge was not asked to correct any direction he gave or to give any further direction, although he had invited counsel on both sides to make any submissions they wished. In mv opinion the appeal should be dismissed. I certify that this and the nine (9) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Associate sow] 7 ————— a Dated: 16 September 1987 a. er Sionmmeranay aes -—— EEE aE SP eter — — IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. ACT G84 of 1986 GENERAL DIVISION ON APPEAL from the Supreme Court of the Australian Capital Territory Criminal Jurisdiction BETWEEN: TERRENCE DOUGLAS HUMPHRIES Appellant AND: THE QUEEN Respondent CORAM: FOX, FORSTER AND KELLY JJ. DATE: 16 SEPTEMBER 1987 REASONS FOR JUDGMENT FORSTER J. I agree that the appeal should be dismissed and I agree with the reasons for judgment of Fox d. I certify that this is a true copy of the Reasons for Judgment of Mr So tice Forster. associate// f Mieke Coton Dated: 16 September 1987 Se aaah meen anne kentetannaranhaanentnenaeaammmaaatnenarennTeaee meat a IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. ACT G84 of 1986 ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: TERRENCE DOUGLAS HUMPHRIES Appellant AND: THE QUEEN Respondent CORAM: Fox, Forster and Kelly JJ DATE: 16 September 1987 REASONS FOR JUDGMENT KELLY J: On 14 November 1986 the appellant was charged on indictment before the Supreme Court of the Australian Capital Territory that on 2 November 1985 at Canberra he raped the prosecutrix. He pleaded not guilty and on 21 November 1986, after a trial which lasted four days, was found guilty. He was subsequently sentenced to imprisonment for 6 years, a non-parole period of 3 years being fixed. He has appealed to this Court against his conviction. The prosecutrix, who was born on 4 April 1970, gave evidence of the events of the night 1/2 November 1985. a een ae eae a oe ~~ spree oan ree ee meet ene ee T na) 7 -2- Eventually, with two other girls, Julie and Andrea, the accused and another man called David John Channell, she went in a car to the site of the Air Disaster Memorial near Canberra. She had by then drunk about 14 cans of beer to which she was unused. She said that when the car got to the Air Disaster Memorial the appellant asked of the three giris which of them would have intercourse with him. The prosecutr1ix replied, "Not me". She then gave evidence, in considerable detail, of being raped by the appellant. The girl Andrea gave evidence which substantially corroborated that of the prosecutrix. Subsequently the party went back to Julie's flat in Queanbeyan where the three girls went inside. The prosecutrix was upset and sobbing and very shaken. A statutory declaration, made by Andrea on 4 December 1985 before a Justice of the Peace, was tendered in evidence on the invitation of the learned Crown Prosecutor. It stated:- "That Terence Douglas Humphries did not rape Cassandra [the prosecutrix] on the 29th of November 1985, and I make this' solemn declaration ..." Andrea said that she made the declaration of her own free will. In cross-examination she agreed that the date she had meant to put was 2 November 1985, not 29 November 1985. -3- A police woman gave evidence of the prosecutrix' distressed condition and facial injuries. She was conveyed to the Royal Canberra Hospital where Dr Palmer examined her. Dr Palmer described her as a small young woman, quite tearful, very tired and a little angry. She first saw the prosecutrix at about 4.30 a.m. She noted her injuries. She did not think those injuries would have been caused by her merely lying on the ground. She examined the prosecutrix' genital area. She found a small amount of blood on the inner labia that was consistent with bleeding from some point. She found dark blood at the external opening of the cervix. There was no evidence of injury to the hymen, to the urethra or to the clitoris. She was unable to say whether the prosecutrix had lost her virginity recently or not. Manual examination of the vaginal area caused distress and there was tenderness consistent with injury within the vagina, an injury which she considered would have come from within. The blood which she noted she thought consistent with menstruation. The injury within the vagina she believed to be from pressure bruising from within, not from normal intercourse. David John Channell gave evidence. He told of earlier incidents and then said that he told the appellant how to get to the Air Disaster Memorial. He was then asked, "And you went up to the crash site and what happened?" de replied, "I cannot remember". He reiterated that and added, "I know we went there". He said further, "I just forgot all — r~ ia -4- about it". He was shown the record of an interview he had had with police on 2 November 1985 and asked whether it helped refresh his memory as to what had happened at the Air Disaster Memorial. His attention was directed in particular to page 6 of the record. He said that the record had been read out to him. He had asked for it to be read out because he could not read. The record of interview was then read to the witness in the absence of the jury and the presiding judge. Thereafter his evidence continued, evidence in which he denied that anything criminal had happened at the Air Disaster Memorial. His attention was then directed again to the record of interview. The learned Crown Prosecutor then made an application under sub-paragraph (b) of s.60(2) of the Evidence Ordinance 1971. Sub-sections 60(2), (3) and (4) of that Ordinance read:- "(2) On the application of the party by whom a witness has been called, the court may grant leave to the party - (a) to prove that the witness has, at another time, made a statement inconsistent with his evidence; or (b) to cross-examine the witness as_ to whether he has, at any time, made a statement inconsistent with his evidence. (3) The court may grant an application under the last preceding sub-section whether or not it 41s alleged or proved that the witness 1s adverse to the party by whom he was called. (4) A party is not entitled to prove that a witness has made a statement inconsistent with his evidence unless the witness has been ror eee a -5- informed of sufficient of the circumstances of the making of the statement to identify the occasion on which the statement was made and has been asked whether he made _ the statement." It is convenient at this point also to set out s.61 which reads:- "(1) Subject to the next succeeding sub-section, where a witness, upon cross-—examination concerning a statement alleged to have been made by him relating to the subject-matter of the proceedings and inconsistent with his evidence, does not admit that he made the statement, evidence of the making of the statement is admissible. (2) Evidence of the making by a witness of a statement referred to in the last preceding sub-section is not admissible unless the witness has been informed of sufficient of the circumstances of the making of the statement to identify the occasion on which the statement was made and has been asked whether he made the statement." The jury were released for the day. The learned trial Judge thereafter granted leave in the following terms:- "I order, pursuant to section 60(2) of the Evidence Ordinance, that the Crown be given leave to cross-examine David John Channell on the record of interview conducted on 2 November 1985." There ensued a discussion during which the learned Crown Prosecutor indicated that he proposed to cross-examine on a number of identified questions, He said that Channell too had made a statutory declaration by which he resiled from the evidence {sic) he had given. It is clear that by that expression the Prosecutor meant what Channell had said in the interview as recorded. Counsel then appearing for the appellant said that during cross-examination he would call for that Pe ee nee he -6- statutory declaration with a view to putting it to the witness. The Prosecutor indicated that he would object to that. The matter was, of course, left in abeyance at that stage. The ruling just referred to was given in the morning of 20 November 1986. Late in the previous afternoon the learned trial Judge had told Channell clearly that he was to return to the Court by 10 o'clock the next morning. After the ruling and the short discussion referred to above Channell was recalled, first in the absence of the jury. He did not appear. The Crown Prosecutor then said:- "I cannot do anything more than ask for a warrant and ask for an adjournment of this Matter until such time as I can find him." There was a short discussion about what his Honour had said to the witness on the afternoon before and then his Honour said:- "yes, all right, we will have the jury back in, please. The witness had better be called in the presence of the jury, I think." No objection to the proposal was taken by counsel for the appellant. The jury returned and the witness Channell was again called, this time in their presence, but did not appear. Immediately the Crown Prosecutor applied for the warrant. Counsel for the appellant, offered the opportunity, did not wish to say anything. His Honour then said:- "The witness who was here yesterday afternoon was excused, like you were, to go _ home overnight, but unlike you he has not come back." " oe eee ee > ostadiectaaientaad iiemmnamntiateesead ee ~ eae -7- He then ordered that a warrant issue for the arrest of the witness, Eventually he reappeared. The learned trial Judge questioned him briefly, not on oath, in the presence of the jury. His Honour did not go deeply into the reasons for Channell's failure to attend as ordered but the answers he gave could not have impressed the jury. He then went back unto the witness box, The Crown Prosecutor repeated his application under s.60 of the Evidence Ordinance and his Honour made an order in the terms he had used earlier. Under cross-examination by the Crown Prosecutor the witness described the record of interview as untrue and said that 1t came into existence "Over at the cop shop but it was all lies". He added "Terry did not do nothing." It was plain from that cross-examination that the substance of what the witness had told the police was not markedly different from the versions given by the prosecutrix' and the witness Andrea and that evidence in accordance with the statements in the record of interview would have afforded strong corroboration of their evidence. During his cross-examination of Channell the Crown Prosecutor elicited evidence of another statutory declaration. He pursued the matter. The witness gave evidence that he had made the statutory declaration before the committal proceedings in December 1985. He was shown what was said to be a statutory declaration which he acknowledged was in his handwriting. Siete teeta -8- The Crown Prosecutor then asked him whether he had sworn an affidavit and showed him a document, presumably the affidavit. At that point the learned trial Judge intervened to stop the cross-examination on the affidavit. Further questions on the statutory declaration followed. In the result 1t must have been plain that the witness was saying that the things he had told the police in the interview as recorded were lies and that what he said in the statutory declaration was true. He was then cross-examined by counsel for the appellant with a view to establishing the truth of what was said in the statutory declaration. Counsel relied on $.28(1) of the Evidence Ordinance 1971. His Honour pointed out, correctly with respect, that it was inapplicable because of the provisions of s.31 of the Ordinance and disallowed any examination or cross-examination on _ the document on the basis that it was a prior consistent statement and not a prior inconsistent statement. A forensic biologist gave evidence of the receipt of swabs showing semen present on high vaginal, low vaginal and vulval swabs and smears. Grouping of the semen on the three swabs indicated the presence of A and B blood group substances. She found the prosecutrix to be a group O secretor and concluded that the A and B blood group substances could not have come from her. The appellant was a Group B secretor. She was then asked:- "And is that consistent with your finding from the semen having originated from a group AB secretor?" me ne en er worm x A arenes ee epee ee eee ae ee > ol tr en ee Pere er eee ee a -9- She replied, "On the face of it it is not, no", but added that because of the condition in which the swabs were submitted she could not discount the possibility that the A and/or the B substances that she detected may have arisen from bacterial contamination of the swabs. In cross-examination counsel for the appellant asked her:- "and that suggests, I put it to you, that suggests the greater likelihood that you cannot explain the A factor by bacteria but that it is more likely that you can explain the A factor by the donor of the semen having been of the A category?" She replied "Or AB". pr Gutowski, a highly qualified forensic scientist of much relevant experience, was called for the defence. He advanced a number of possibilities. They were:- (a) the most likely explanation for the presence of the A factor and the B factor in the samples which Ms Clancy analysed was that the A and B substances detected came from an AB secretor. (b) they came from a group A secretor with false group B, presumably, given the nature of the exhibits, of bacterial origin. (c) the substance came from a group B secretor with a false bacterial A. (d) the substance came from a group O male secretor, the group O then being turned by bacterial action into AB with the presence of bacterial A and bacterial B. ? Y Ss -_ wee ee ee re ee aie + Ye q a yt 4 we ee re eee ee , wee ee ee ae y Ae ere nencen: 7 Ue ~10- (e) the substance came from a group O non-secretor with no blood group substances from the male, the A and B being purely bacterial. He thought the second and third possibilities highly unlikely, the fourth to be even less likely as requiring the multiplication of the probabilities of the second and third and, obviously, the fifth was so unlikely that he did not provide any formula by which the probabilities of its being that situation could be established. Evidence was given that the appellant's blood group was B Rh positive. Professor Boettcher, professor of biological sciences at the University of Newcastle, also gave evidence on behalf of the appellant. He concluded that the A and B factor found in the swabs examined by Ms Clancy meant that it was not consistent with its being Mr Humphries' semen, his blood group being, as indicated, group B. In cross-examination it was put to him that it had been said of him that his academic qualifications and experience were impeccable but his practical forensic experience was negligible. Further questions along that line, based, but to some extent inaccurately, on passages from the judgments in Chamberlain v. R. (1983) 46 A.L.R. 493, at p.520, and Chamberlain v. The Queen _ [No.2] (1983-1984) 153 C.L.R. 521 at p.558 were put to him. The appellant was interviewed by Detectives Cootes and Majors. A record was made of the interview. He denied wae ot wee -11- any suggestion that he had raped the prosecutrix. After the usual warning he refused to provide a sample of his blood. He gave evidence. He affirmed the truth of what he had said in the record of interview. He denied allegations that he had suggested that any of the three girls should have intercourse, had struck the prosecutrix or knocked her to the ground, kissed her, hit her with a rock, punched her, took her clothes off or had intercourse with her. During the course of the hearing of the appeal leave was given the appellant to use an affidavit sworn by the Sheriff of the Australian Capital Territory who deposed that he was present in Court while jury officers were sworn to act as officers in charge of the jury in accordance with the provisions of s.46 of the Juries Ordinance 1967. About an hour and a half after the jury retired to consider its verdict the two officers ceased duty. The learned trial Judge had earlier been informed of the probability that they would do so. The Sheriff indicated to his Honour that should ut be necessary, he and the Deputy Sheriff would perform the duties of jury officers. The learned trial Judge indicated that in that event he did not consider it necessary that the Sheriff and Deputy Sheriff should swear an oath under s.46. When the two officers ceased duty at about 4.51 pem. on 21 November 1986, the Sheriff and the Deputy Sheriff acted as jury officers until the jury returned its verdict. Nothing untoward happened. The Sheriff deposed that he had on numerous occasions acted as an officer in charge of a pee eo ee en re ete ee ee 2 ete comer -12- jury in a criminal trial and had on no occasion been required to take an oath under s.46. The first ground of appeal was that the learned trial Judge erred in refusing to allow the appellant's counsel to cross-examine the witness Channell on certain statements which he had made which were favourable to the appellant and consistent with his evidence. During the course of the hearing of the appeal the ground was expanded to allege that the learned trial Judge erred in refusing to allow counsel to cross-examine the witness generally. It was also alleged that the learned trial Judge erred in allowing the Crown Prosecutor to cross-examine that witness on matters outside the limits set by the leave granted under 5.60 of the Evidence Ordinance, In The Nominal Defendant v. Clements (1960) 104 C.L.R. 476, the High Court considered the rule that the testimony of a witness, given on oath in the witness box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing. The rule was stated in the terms just used by Windeyer J at p.490. Menzies J, at p.490, referred to an exception to the rule:- "T regard evidence of an earlier consistent statement as admissible in accordance with this exception only when the Court itself considers that the evidence of a witness has been impeached as a later contrivance and this has been done by the opposite party in the conduct of the case, whether by the ecross-examination of the witness, or by eliciting evidence of the fabrication from another witness, or in some other positive way." ty re ee rrr «f yA t pene e we mp meme Bey wer Spt ren rT sdehiehcaadhreientanal taal aliiendaiananataateeaece one iam fully by pp.479-80 -13- The nature of the exception was considered more Dixon CJ, with whom kKitto J concurred. he said:- "The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness 1f£ it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, 1f there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance." At lane GY eee ee pee ef wie wore oreo ~ 4 -14~ The learned trial Judge apparently took the view that the statement did not meet the test laid down in The Nominal Defendant v. Clements. In this I think that he was, with respect, quite correct. It could hardly be said that that statement, made as it was in the form of a statutory declaration some five days after the events complained of, had the requisite degree of contemporaneity with the statements of the witness as recorded in the record of interview. It follows that the rejection of the proposed tender and the refusal to permit cross-examination on the statutory declaration and the affidavit were in any event correct. It was a matter peculiarly within the province of the trial Judge and this Court ought not to interfere with his ruling. In any event, counsel for the appellant did not seek to put Mr Channell before the jury as a witness of truth. He indicated that the more versions Mr Channell gave concerning the incident the less reliable he could be as a witness. As 1t was, his evidence before the jury was exculpatory of the appellant. As to the allegation that the learned trial Judge had erred in refusing to allow counsel for the appellant at the trial to cross-examine the witness generally, I think reference to the transcript shows that the restriction imposed by the learned trial Judge as expressed in his ruling referred to above was very narrow. In my opinion that ruling was correct. Much latitude in cross-examination is normally allowed counsel for an accused during his trial eee ener + ore pe ee en rye ee ee ee aoe os -15= but the cross-examination must still be admissible as going to relevance or credit or both. Here the proposed cross-examination on the document could have gone only to credit. Evidence that the witness had made a prior statement consistent with his evidence could not be given. There were no circumstances sufficient to sustain cross-examination on the basis that the evidence given was a recent fabrication and that therefore evidence of earlier statements consistent with it and of the necessary degree of contemporaneity might be given. As to the allegation that the Crown was allowed to go too far in cross-examination following the ruling under s.60 of the Evidence Ordinance, I think that the learned trial Judge did not permit that to happen. Reference to s.61 of that Ordinance makes it plain, I think, that evidence of the actual terms of the prior allegedly inconsistent statement may be given by virtue of the Ordinance. The jury were entitled to know of the nature of the statutory declaration once the appellant had given, unresponsively, evidence of its existence. In any event its existence could hardly have done other than allow counsel for the appellant to make in his address to the jury the remarks he had suggested he would. It seems probable that his failure to object to the later questions on _ the statutory declaration was in furtherance of a forensic plan. Counsel frequently permit evidence, not strictly admissible, to be led with a view to taking advantage of it for the benefit of their client in a way not immediately on re = ne eee Ve oe -16- foreseeable as the evidence is led. It is to be noted that his Honour intervened promptly once evidence of the affidavit was foreshadowed. I think the first ground fails. The second ground was that the learned trial Judge erred in summing up 1n that he incorrectly stated the effect of Ms Clancy's evidence when he said, "Ms Clancy considered that it was possible that the semen on the swabs belonged to an AB secretor", her evidence having in fact been that it belonged to an AB secretor but that it was possible that it could have come from a B secretor contaminated so as to give an AB reading. What Ms Clancy said was that the results of the analysis of the semen present in the high vaginal, low vaginal and vulval swabs and smears indicated the presence of A and B blood group substances. But Ms Clancy said that the A and B blood group substances could not have come from the prosecutrix. She learnt subsequently that the appellant waS a.group B secretor. When his Honour said that Ms Clancy considered that it was possible that the semen on the swabs belonged to an AB secretor he was, I think, doing no more than stating the effect of her evidence given in the following exchange:- "So the bottom line of your finding is what? --- That semen was present in ali three swabs, that the grouping results that I have received from these swabs, I cannot rule out the possibility of either the A and/or the B blood grouping coming from bacterial contamination, -17- And another possibility to add to your bottom line ...? --- I am sorry, I see what you mean. The semen came from an A/B secretor."" It was not her evidence that it belonged to an AB secretor although, of course, it was her evidence that it was possible that it could have come from a B_ secretor contaminated so as to give an AB reading. Ground 2 must therefore fail. The third ground was that the learned trial Judge incorrectly stated the position in his summing up when he said that the Crown evidence was equivocal. In his summing up the learned trial Judge said:- "So you might think in the end, members of the jury, really, that the Crown evidence on this point is really equivocal. It is consistent with innocence and it is consistent with guilt, in the sense that it is consistent with the semen originating from the accused and it is consistent with it not originating from the accused. But further, the defence relies upon the evidence of Dr Gutowski and professor Boettcher. Those two witnesses, as I understand it, did not dispute the analysis by Mrs Clancy, which resulted in a finding that the semen contained both A and B substances, They say, however, that 1t is more likely that the swabs came from an AB secretor than that they came from a B secretor such as the accused, and were subsequently contaminated. They say there is a greater likelihood that the swabs came from an AB secretor than there is a - I am sorry, I put that badly. TI will put it again. They say the likelihood that the swabs came from an AB secretor is more likely than the contamination theory. Dr Gutowski says that he reaches this conclusion because in his experience he had never come across an example, or indeed I think he said he has never heard of an example, of a substance - or a B group substance from a B secretor being contaminated by bacteria which show up with the characteristics of a false A group substance. -18- Professor Boettcher, on the other hand, bases his conclusion on what he says were the large or high amounts of both A and B= group substances found by Mrs Clancy to be contained within the samples that she analysed. Professor Boettcher says that if what appeared to be A group substance was in reality mot a characteristic of an AB secretor but brought about by contamination by bacteria, then 1t would not be expected to be found in such high amounts. So that, as I understand it, members of the jury, us the essence of the _ forensic evidence, and I do not think it desirable that I try to explain it to you in any greater detail." The passage sets out with sufficient accuracy the effect of the scientific evidence. It points out the doubts which Dr Gutowski and Professor Boettcher expressed and the circumstances giving rise to them and makes plain the circumstances in favour of the appellant. But the ground really proceeds on the basis that there is an explanation giving rise to an hypothesis consistent with the innocence of the accused and that a proper summing up would have emphasised that. In my opinion, such an argument is not available. A jury may convict on purely circumstantial evidence, but to do so must be satisfied not only that the circumstances were consistent with the accused having committed the crime, but also that the facts were such as to be inconsistent with any reasonable hypothesis consistent with his innocence. Peacock v. The King (1912) 13 C.L.R. 619. But the case did not depend upon circumstantial evidence, It depended upon direct evidence and that evidence, if accepted, was very strong. Of course, the evidence of the prosecutrix required corroboration but od -19- corroboration was present and no complaint is made concerning the summing up by the learned trial Judge on that account. It follows that the contest was between the account given by the prosecutrix, duly corroborated in appropriate material particulars, and the evidence of and on behalf of the appellant denying that account. Into the scales on each side had to be placed the scientific evidence but it was not of such a kind as must necessarily have caused the account given by the prosecutrix and Andrea, supported as 1t was by other evidence of her distress, to be disbelieved. If the jury were satisfied to accept the account given by the prosecutrix as corroborated, being satisfied beyond reasonable doubt of its correctness, the scientific evidence might have given them pause but only that for it was of such a kind as to be consistent with the case sought to be made by the Crown. In my opinion the ground fails. The next ground was that the learned trial Judge erred in permitting the Crown Prosecutor to put to Professor Boettcher questions relating to the opinions that had been earlier expressed judicially in the Chamberlain case. In my opinion these questions should not have been asked. That is not to say that the testimony of an expert witness may not be attacked on the basis that he has frequently been disbelieved in the past by other courts and tribunals but here, in my opinion, the context of the judicial remarks which had been made was not fairly put to the witness. -20- However, many of the answers given to the questions put were inconclusive and I do not think they could have had any effect on the scientific evidence. In the last analysis, the evidence given by each of the scientific witnesses called, for prosecution and defence, agreed on the possibility contended for by the Crown. In my Opinion the ground fails. The next two grounds are again concerned with the witness Channell. Together they may be taken as being a claim that the learned trial Judge erred in permitting the Crown Prosecutor to put to the Court including the jury material concerning the non-appearance of the witness Channell and in questioning him concerning his non-appearance in the presence of the jury. In my opinion the two grounds fail. The procedure which he followed was a matter peculiarly for the learned trial Judge. He gave notice of his intention to proceed as he did in the absence of the jury and counsel for the appellant took no steps to object. It seems to me that, in those circumstances, the jury were entitled to know what had happened. The evidence of the witness had been given in part before them already and the circumstances surrounding his non-appearance might well have been considered by the jury as part of his general approach to the question of the evidence he was to give and might therefore be treated as though it were a question of demeanour. [In any event, it is plain from the transcript that counsel for the appellant was not really concerned to put the witness forward as a witness ren ve Pa ere et wean oe > ' cen oaae wer ee ~-21- of truth. Finally, his evidence as given before the jury tended to exculpate the appellant. In all these circumstances it seems to me that the course adopted by the learned trial Judge could have had no adverse effect, having regard to the way the trial was run, upon the interests of the appellant. It must not be forgotten that a trial Judge 1s 1n a peculiarly advantageous position to gauge the temper of a trial and to assess the forensic advantages which the several counsel, particularly counsel for an accused, seek to establish. This position is not fully shared by an appellate court although, of course, it can assess to some degree what that temper was and what forensic tactics were being pursued having regard to the way the trial Judge and counsel have respectively dealt with the various matters which have arisen during the course of the trial. The next ground of appeal was that the trial was irregular in that persons in charge of the jury had not been sworn in accordance with s.46 of the Juries Ordinance. Irregularity there was but in the result it could have mattered nothing having regard to the course which was adopted by the Sheriff and Deputy Sheriff of the Australian Capital Territory. It is hard to see how the gap caused by it could have been better filled. It is not suggested that anything untoward which might have vitiated the jury's verdict happened. It would have been better had the Sheriff and the Deputy Sheriff been sworn in accordance with s.46 of the Juries Ordinance, as they should, but I am unable to see that such an irregularity could possibly vitiate the trial and warrant the setting aside of the jury's verdict. errr —n. a at at mom erg ey a a i. f t a -22- The last ground of appeal was that the verdict was unsafe in the light of the scientific and other evidence. I am unable to see that, in general, this was so. In particular, even if it be accepted that the questions going to Professor Boettcher's credit should not have been asked, the fact that they were does not, I think, constitute grounds for setting aside the verdict. [It is not for every minor blemish in a criminal trial that a verdict of guilty found by the jury should be set aside. There is a general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result, a new trial need not be ordered. Stokes and Coulon v. The Queen (1960) 34 A.L.J.R. 422 at p.424. In my opinion the appeal should be dismissed. I certify that this end the aon préveding pa es are a true copy of the Reasons for Juagment herein of his Honour Mr. Justice Retin Rete eka. Renken Associate B Bg re merge em ree a A BER or en ee ee Counsel for the Appellant: Solicitor for the Appellant: Counsel for the Respondent: Solicitor for the Respondent: Dates of hearing: Mr T.J. Higgins QC with Mr H.J. Marshall A.C.T. Legal Aid Office Mr R.F. Redlich QC with Mr R.F. Livingstone Director of Public Prosecution 7, 8 and 9 July 1987