Re Peter Douglas Groves v R [1981] FCA 22; (1981) 58 FLR 18 (13 March 1981)

FEDERAL COURT OF AUSTRALIA

Re: PETER DOUGLAS GROVES
And: THE QUEEN [1981] FCA 22; (1981) 58 FLR 18
No. F.C. 19 of 1980
Appeal - Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Smithers(2) and Fisher(1) JJ.

CATCHWORDS

Appeal - criminal law - misdirection by trial judge - sufficient prejudice to warrant new trial - Criminal Law - effect of prior acquittal of another offence - evidence of facts in finding basis of previous charge on which accused was acquitted - possible use by jury of such facts in assessing the accused's attitude to prosecutrix - inadequacy of trial judge's summing up - misdirection - Evidence - whether evidence of buggery part of res gestae in alleged rape - co-accused - possibility of prejudice - adequacy of direction of trial judge - Jury panel - direction of trial judge not to discharge - Jury - discretion of trial Judge not to discharge.

Federal Court of Australia Act 1976, s.28.

Criminal Law - Misdirection - Sufficient prejudice to warrant new trial - Effect of prior acquittal of another offence - Evidence of facts in finding basis of previous charge on which accused was acquitted - Possible use by jury of such facts in assessing accused's attitude to prosecutrix - Inadequacy of trial judge's summing up - Misdirection - Evidence - Whether evidence of buggery part of res gestae in alleged rape - Co-accused - Possibility of prejudice - Adequacy of direction of trial judge - Jury panel - Discretion of trial judge not to discharge - Jury - Discretion of trial judge not to discharge - Powers and duties of Full Court of Federal Court of Australia as court of appeal discussed - Federal Court of Australia Act 1976 (Cth), s. 28. On 5th June, 1980, the appellant was convicted of one count of rape and one count of indecent assault on B. and appealed against both conviction and sentence. The appellant was presented jointly with one W. and H. One count of buggery had also been alleged against each accused and upon an earlier arraignment each had pleaded not guilty to all counts. In addition the appellant had also been charged with one count of theft of four dollars from B. during the course of the events which gave rise to the other charges and before his trial on those matters had been acquitted of the theft.

Prior to the trial of all accused the Crown indicated that it did not wish to proceed with the count of buggery against the accused and at the trial both W. and H. were asked by the associate whether they still adhered to their previous pleas on the counts of rape and indecent assault to which they said they did. In error, the associate then addressed the appellant in the following terms: "On 3rd September, 1979, you pleaded not guilty to a charge . . . (that you) did commit . . . the abominable crime of buggery. . . ." Realizing the error the associate then asked the appellant if he still adhered to his previous pleas on the counts of rape and indecent assault and the appellant indicated that he did. These events having occurred in the presence of the jury panel, they retired and counsel for the appellant applied for their discharge, which, in the exercise of his discretion, his Honour refused.

In the course of her evidence in chief relating to the sexual acts performed on her by one of the other co-accused but not by the appellant, B. gave evidence that an act of buggery might have occurred. Counsel for W. applied for a discharge of the jury which was refused by the court on the basis that it considered the evidence to be a part of the res gestae. However, his Honour later directed the jury that they should completely ignore the earlier reference to another charge.

On appeal,

Held, per Smithers J., Bowen C.J. and Fisher J. expressing no opinion, that the direction of the trial judge was sufficiently clear and adequate in the circumstances and no miscarriage had occurred in relation to the arraignment or the admission of evidence suggesting buggery sufficient to set aside the verdicts.

During the course of the trial evidence was given by L. that the appellant was involved in searching B.'s possessions and that he had obtained four dollars from them. This was also the subject of evidence in the form of answers to questions in records of interview with the appellant and the accused H.

On appeal,

It was argued that the appellant had not been given the full benefit of his acquittal on the charge of theft and in particular that his Honour had erred in admitting the evidence and that his direction to the jury that they could use such evidence as indicating the attitude of the appellant to B. was wrong.

Held, per Bowen C.J. and Fisher J., that this was not a case where estoppel had any application. Applying R. v. Storey [1978] HCA 39; (1978), 140 CLR 364, if the Crown introduces evidence which is admitted in respect of circumstances surrounding the alleged theft, the trial judge is obliged to ensure that the accused obtains the full benefit of his acquittal and the jury must be made aware that the Crown cannot challenge the acquittal. In the present case the direction was inadequate in that his Honour did not positively tell the jury that it was not open to the Crown to challenge the acquittal and did not explain to them the effect of the verdict. In the result there had been a miscarriage of justice warranting a new trial.

Per Smithers J., that, applying Simic v. The Queen [1980] HCA 25; (1980), 144 CLR 319, where, on appeal against conviction for a criminal offence there has been a misdirection of law or evidence had been improperly admitted or rejected, the appeal should be allowed unless the Crown shows that the error did not affect the verdict.

Powers and duties of the Full Court of the Federal Court of Australia sitting as a court of criminal appeal and authorities discussed.

HEARING

Melbourne, 1980, December 15-16; 1981, March 13. 13:3:1981
H. D. Palmer, for the appellant.

J. R. Pritchard, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: Legal Aid Office.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown

Solicitor.

P. F. MCDERMOTT

ORDER

1. That the appeal be allowed.

2. That the verdict and judgment of the Supreme Court of the Australian Capital Territory whereby the appellant was convicted of the crime of ravishing and carnally knowing Karen Patricia Bondietti without her consent be set aside.

3. That the sentence imposed upon the appellant consequent upon that conviction be set aside.

4. That the appellant be retried upon the count of ravishing and carnally knowing Karen Patricia Bondietti without her consent at a time to be fixed by the Supreme Court of the Australian Capital Territory.

5. That the verdict and judgment of the Supreme Court of the Australian Capital Territory whereby the appellant was convicted of the crime of assaulting a female, Karen Patricia Bondietti, and at the time of such assault committing an act of indecency upon the said Karen Patricia Bondietti be set aside.

6. That the sentence imposed upon the appellant consequent upon that conviction be set aside.

7. That the appellant be retried upon the count of assaulting a female Karen Patricia Bondietti and at the time of such assault committing an act of indecency upon the said Karen Patricia Bondietti at a time to be fixed by the Supreme Court of the Australian Capital Territory.

8. That the appellant be remanded in his present custody pending his retrial or the earlier completion of the proceedings upon the indictment upon which he was convicted as aforesaid, subject to such order as the Supreme Court of the Australian Capital Territory may make with respect to bailing the appellant.

DECISION

In this matter we have had the advantage of reading the reasons for judgment of Smithers J. and we agree with his conclusion that the appellant should have a new trial. It is appropriate, however, that we should set out shortly our reasons for agreeing with this conclusion. It is not necessary for us to recapitulate the facts as they are set out in some detail in the judgment of Smithers J.

The essential factor is that the appellant, in prior and separate proceedings, was acquitted of the charge of stealing $4.00 from the pocket of the jacket of the prosecutrix. This taking was alleged to have occurred a short time after the incident which culminated in the charges of rape and indecent assault. It is unnecessary for us to consider whether this is one of those rare cases in which the doctrine of issue estoppel has application in criminal proceedings. For our part, if we had to decide we would be inclined to say that it was not such a case. Certainly on the evidence before us it is not possible to identify the issue or issues on the basis of which the appellant secured his acquittal.

The decision of the High Court in The Queen v. Storey [1978] HCA 39; (1978) 140 CLR 364 makes it abundatly clear that, whatever be the position in respect of the applicability of that doctrine, if the Crown introduces evidence which is admitted in respect of the circumstances surrounding the alleged theft the appellant is entitled to the full benefit of the acquittal. On this point their Honours, to the extent that they gave consideration to it, are unanimous. The trial judge is obliged to ensure that the appellant obtains the full benefit of the acquittal and that the jury is made aware that the Crown cannot challenge the acquittal. Barwick C.J. in The Queen v. Storey, supra (at p.375), stated what in his view was the only basis upon which the evidence could be admitted, namely:

"if the Crown is not allowed to use the evidence simply to challenge the former verdict, and if the trial judge by suitable direction ensures that the jury understand that full effect must be given to that verdict, the accused will not in any sense have been placed in double jeopardy merely because evidence given at the former trial is repeated in the later trial."

In this present matter the evidence having been admitted, in the words of Gibbs J. in Storey's Case, supra (at p.390):

"The question remains whether the learned trial judge gave a sufficient direction to the jury in relation to the evidence once it had been admitted."

The relevant portions of the summing up by the learned trial judge upon this aspect of the trial were as follows:

"He (Mr. Palmer, Counsel for the appellant) refers you to the fact that Mr. Groves was put on trial on a charge of stealing money from the girl and, that being the case, you cannot therefore take the view as far as you are concerned that you are trying him in respect of that offence as well. You are not. It is not a matter which concerns you on that aspect. He is being tried and it follows that a tribunal, a court of some kind, has found that it could not be satisfied beyond reasonable doubt that he stole that money, but I think there is a use to which you can put that and I will come back to it later but it is not on the basis that he is guilty of stealing the money."

Later he said:

"I would suggest that you ignore completely question and answer 30. There is nothing in it which either helps or damages Mr. Groves, and any material in it ought to be ignored as far as they are concerned. Question 31 is concerning subsequent matters and then Question 32 related to the money in the bag or the search for money in the bag, getting lollies out of it.

Question 35 relates to the taking the $4 out and then walking over to the Woden Plaza. And while you do not use that to find as a fact that he stole some money, it may indicate to you the attitude which he too was taking to this young woman throughout the whole of this evening."

In our opinion these directions, considered in the light of the comments of the judges of the High Court in Storey's Case, supra, are inadequate. The trial judge cannot be said to have given the appellant the full benefit of his acquittal. He did not positively tell the members of the jury that it was not open to the Crown to challenge the qcquittal nor did he explain to them the effect of that verdict. In particular, he did not emphasise that the appellant, "having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged" (Gibbs J. in Storey's Case, supr at p.388). Mason J's summing up of this ascpect of the appeal in Storey's Case, supra at p.398, is in point, namely:

"The summing up by the trial judge was deficient in that although His Honour instructed the jury that ' . . . you are relieved of the task of considering whether the accused were or were not guilty of forcible abduction, and you must confine your deliberations to the various counts of rape', he did not give sufficient emphasis to the fact that the jury were bound to accept the verdict of acquittal of the charges of forcible abduction as the only possible view of the evidence relating to those charges; it was not open to them to accept a view of the facts inconsistent with that acquittal or to use such a view for any purpose."

In our view the trial judge's summing up was in this regard deficient. He failed to give to the jury a correct direction on the effect of the acquittal. In the result there was a miscarriage and there must be a new trial.

The question of the admissibility in any event of the evidence relating to the alleged theft was discussed before us. Whilst the use that the trial judge suggested the jury should make of this evidence is not thoroughly satisfying, we prefer not to give any direction or make any suggestion as to the procedure on the new trial. This aspect is a matter very much in the discretion of the trial judge and he will be assisted in making his decision by the discussion of the topic by a number of judges of the High Court in Storey's Case, supra.

We agree with the orders proposed by Smithers J.

On 5 June 1980 the appellant was found guilty and was convicted of the charge that on 18 August 1978 in the Australian Capital Territory he did without her consent ravish and carnally know a young woman (Miss B) and was also found guilty and was convicted of the charge that on 18 August 1978 he did assault Miss B and that he at the time of such assault did commit an act of indecency upon the said Miss B.

The appellant appeals to this court against those convictions and the sentences imposed in respect thereof by the learned Judge upon the following grounds, namely,

(i) That the learned Trial Judge was in error or wrongly exercised his discretion in refusing to discharge the jury panel and proceeding to empanel a jury after the Associate had read in the presence of the jury panel the whole of a charge against the appellant which the Crown had indicated it was not proceeding with.

(ii) That the learned Trial Judge was in error or wrongly exercised his discretion in not discharging the jury after the prosecutrix had given evidence relating to the matter of the said charge.

(iii) That the learned Trial Judge was in error or wringly exercised his discretion in admitting: -

I. the evidence of the witness Thomas Lanaghan to the effect that the Appellant was involved in searching the prosecutrix's possessions and stealing money from her

II. the record of interview of the Appellant insofar as it is to the same effect

III. the record of interview of the accused Peter Leslie William Hagan insofar as it is to the same effect.

(iv) That the learned Trial Judge was in error in directing the jury that the evidence relating to the taking of money may indicate the attitude the Appellant was taking to the prosecutrix throughout the evening.

In connection with the charges against him the appellant was tried at a trial at which charges against two other persons namely one, Weatherall and one Hagen, who were accused of similar offences against the same female committed substantially at the same time and place, were also heard and determined.

As to ground (i) the circumstances were that although it had been made known to the parties by the Crown that a buggery charge against the appellant would not be proceeded with it happened that before the jury was empanelled but while the members of the jury panel were in the Court room and could hear the proceedings, the following events ocurred. In the course of arraigning the appellant and his co-accused the Associate to the learned Judge read to the accused Weatherall and Hagen the indictments against them and asked them did they adhere to their former pleas to which they answered "yes". By inadvertence, the Associate then addressed the following words to the appellant: -

"The Queen v Peter Douglas Groves. On 3 September 1979 you pleaded not guilty to a charge on the eighteenth day of August 1978 in the Australian Capital Territory did commit with Miss B the abominable crime of buggery - - -"

The Associate realizing his error, then proceeded to read the indictments in relation to rape and indecent assault alleged against the appellant in the following terms: -

"You pleaded not guilty on 3 September 1979 that on the eighteenth day of August 1978 in the Australian Capital Territory did without her consent ravish and carnally know Miss B Do you still adhere to that?"

The appellant answered "yes". The associate then spoke the following words to the appellant: -

"And you further plead not guilty to a charge on eighteenth day of August 1978 did assault a female Miss B in that you the said Peter Douglas Groves at the time of such an assault did commit an act of indecency upon the said Miss B Do you still adhere to that plea?"

The appellant answered "Yes". As a result of the reference to the buggery charge Counsel for the appellant moved that the panel be discharged. The members of the panel were asked to and did retire from the Court room and the following discussion ensued: -

"HIS HONOUR: Yes, I think I see the problem, Mr Palmer.

MR PALMER: Yes, your Honour is aware that no doubt by inadvertence the charge was put to the accused Mr Groves, which my learned friend, the Crown, had indicated he will enter a nolle and that being so I submit that the trial should not proceed with this panel because they will now be aware of something which the Crown is not going to proceed with and which is not going to form any part of what they will be told, one hopes.

HIS HONOUR: Nobody will tell them, Mr Palmer.

MR PALMER: Well, your Honour, they have had it read in their minds. The magic word has been read out to them and they will have it in their mind and may be looking for something relating to that throughout the case.

HIS HONOUR: I do not see how it cannot be dealt with by an appropriate direction, Mr Palmer.

MR PALMER: That is my application, your Honour.

HIS HONOUR: Do you have any authority on this point?

MR PALMER: I am taken by surprise in this unexpected - - -

HIS HONOUR: I must admit so am I. I did not expect it to be read out.

MR PALMER: I have not any authority, no. I think it is probably a matter for your Honour's discretion in the circumstances.

HIS HONOUR: I do not really see - nothing was adopted by your client; it was not completed, obviously a mistake of some kind was made. I think the use of one word is not going to matter, Mr. Palmer, or even the phrase.

MR PALMER: I do not wish to argue with your Honour. I just wonder whether it is clear to the jury that a mistake has been made.

HIS HONOUR: It will be made perfectly clear to them in due course, Mr Palmer I will certainly do everything I can to make sure that any slightest tinge of suspicion they may have in their mind is dispelled and I think this can be done.

MR PALMER: I am in your Honour's hands."

In my view the question which had arisen was a matter for the discretion of the learned judge and no reasons have been put to us to indicate that in exercising his discretion the learned judge acted by reference to any wrong principle or otherwise not according to law.

In addition it can be seen from the subsequent events at the trial that no prejudice was suffered by the appellant in the conduct of his defence by reference to the charge of buggery. The events referred to relate to the matters giving rise to the second ground of appeal.

As to the second ground the evidence complained of was given while Miss B was describing the sexual acs performed upon her probably by Weatherall, possibly by Hagen, but not by the accused.

It is necessary to consider the evidence complained of in the context of the basic facts disclosed by the evidence. Those facts were that Miss B a girl seventeen years old, had come into the company of Weatherall in the early part of the night of 18 February. He had had sexual intercourse with her in circumstances which led to a charge of rape against him. Thereafter he had invited Hagen and the appellant to meet this girl. They met her and then proceeded by car to a place near a cemetery. Miss B said that she was forced into the car but in cross examination indicated that she was the last to enter the car and "landed on Weatherall's lap". She sat there during the journey and engaged in acts of kissing Weatherall. She noticed the car went in a direction away from home, she spoke about this but was told the driver knew a short cut. At the cemetery the girl and the three young men alighted. The car departed. The three young men and Miss B proceded to the cemetery and climbed over the fence. Miss B apparently climbed over unassisted. Miss B and Weatherall proceeded to a bushy part of the cemetery where Weatherall had vaginal and oral intercourse with her. Miss B remained recumbent and undressed until, shortly afterwards, Hagen came to the spot where she was and performed similar acts with her. Thereafter at a time estimated by Miss B of about five minutes the appellant came to the same spot, found her still lying on her back and undressed and performed the same acts with her. The performance of these sexual acts was not in dispute. The defence was that Miss B consented to them, or at any rate the accused reasonably believed that she so consented. There is slight doubt whether Weatherall or Hagen was the first to perform these acts in the cemetery but it is clear that the appellant was not the first and most probably was the last.

During the evidence in chief of Miss B in relation to the sexual acts performed in the cemetery by the first of the young men who performed such acts with her, she referred to the act of vaginal intercourse and was then asked "And whilst you were struggling from underneath did that man do anything to you" She answered "He pushed me back and grabbed me and pulled me back". The evidence continued

"And whilst you were struggling out from underneath, did that man do anything to you? - - - He pushed me back - he grabbed me and pulled me back.

And did you say anything to him when he did that? - - - No.

Did you feel any sensation in and aroundabout your stomach area at that time when he pulled you back? - - - I just felt sick.

Did you say anything to him when you felt sick? - - - No.

Did that man, after he remained on top of you, get up? - - - He kneeled up.

Did he say something to you when he kneeled up? - - - He said, Roll over.

What did you do? - - - Rolled over.

What happened then? Then he got on my back.

After that did something else happen? - - - He stuck his penis up - - -

(Objection)

ME McCRORY: Did anything else happen whilst he was kneeling up? - - - No.

Did you see anything whilst he was kneeling up? - - - No.

Did you, when he was kneeling up, sit up? - - - No, I did not.

Did you sit up at any time? - - - No.

Did that man get up from you? - - - He kneeled up.

When he kneeled up did you kneel up? - - - No.

Did he say anything to you that you remember at that time when he kneeled up? He said, "Roll over".

After you rolled over did the man get up and leave you? - - - No he did not".

. . .

When that man got up what did he do? - - - He kneeled up and then said, "Roll over"

But just before he went away from you and after he said "Roll over" did something else happen? - - - He got on my back and put his - - -

(objection)

HIS HONOUR: Mr Crown, I think you should restrict the questioning there in regard to what has happened.

MR McCrory: Yes."

The witness continued her evidence as to acts of intercourse, vaginal and oral performed with her by the other two young men. No suggestion was contained in that evidence that an act of buggery might have been committed.

At the conclusion of that evidence the jury retired and the following passage ensued: -

"HIS HONOUR: Anything, gentlemen? MR DODSON (who appeared for the accused (Weatherall)) Your Honour I wish to make an application after lunch in respect of the evidence.

HIS HONOUR: What sort of application are you ---?

MR DODSON: Prejudicial evidence that came out during what I could only describe as cross-examination by the learned Crown. The witness made reference ---

HIS HONOUR: Mr Dodson, I think it could probably be all part of the res gestae, anyway. Prejudicial or not, I think it was. I would not be inclined to discharge a jury on that ground."

On resumption Mr Dodson formally applied for an order that the jury be discharged and continued,

"Despite the fact that the evidence which Miss B was almost able to get out on a number of occasions, despite the fact that that evidence might be regarded as part of the res gestae I would submit that your Honour still has a discretion to consider that had it come in it would have been evidence and should have been regarded as prejudicial. If the case were that the crown had attempted directly to put that evidence it would have been my respectful submission no question if it was part of the res gestae but nonetheless so prejudicial as to be properly the subject of exclusion.

HIS HONOUR: I am reading a passage from the 10th Edition of Phipson, not the latest edition - I think it still represents the law - page 188.

...The main conditions of admissibility are ........ in some material respect.

Would you accept that as a statement of the law?

MR DODSON: Yes, Your Honour.

HIS HONOUR: If that be the case it is very difficult to show how an act of this kind which takes place in the middle, so the evidence has it at the moment anyway, of two other acts of a similar kind is not part of the res gestae.

MR DODSON: Yes, your Honour.

HIS HONOUR: And would ordinarily be admissible. It is saying, I think, that an assault which does not lead to death but leads only to malicious wounding must be regarded as prejudicial in a trial for murder arising out of the same set of incidents.

MR DODSON: Yes, your Honour. The only point that I wish to make in respect of that is that although there have been many recent judicial anouncements such as R v. Richardson (1965) QLR which suggests that all these materials are relevant and admissible as going to explain the course of the action as to make the action understandable to the jury, nontheless, there are some categories of act which are so prejudicial and so likely to inflame the jury that they should be kept out. I would submit that what has happened in this case is that the prosecutrix has indicated, without saying completely what happened, that something occurred, that it was in the nature of a sexual act, that in fact it may be that it was more sinister in the jury's eyes that it did not come out the way it did. That is all I wish to put to your Honour on that.

HIS HONOUR: Thank you, Mr Dodson. Anybody else?

MR PURNELL: May I renew my application for a separate trial, your Honour? On the same grounds, your Honour.

HIS HONOUR: I do not accept the application, Mr Purnell. Mr Palmer, do you have anything?

MR PALMER: No, your Honour.

HIS HONOUR: I think I should refuse your applications, gentlemen. Basically for the reason that I consider they are part of the res gestae in any event. The second thing is that they did not quite come out as badly as they might have and thirdly - well, at least one apprehends that that is so - the third thing is that I think the Crown could have led evidence in the case had it chosen. But I think it is better that it does not in the circumstances, but the fact that it has come out in part and accidently I do not think makes a reason why I should exercise my discretion to discharge the jury or to demand separate trials."

Arising out of these matters his Honour saw fit to include the following passages in his address in summing up the case to the jury, namely,

"It has been put to you also that this is not a court of morals and that is correct. You are to deal with this case in accordance with the law as I lay it down to you and you are not concerned at any feeling you may have that the conduct which was described to you concerning that night is immoral or indecent or anything of that kind. You have to approach the matter cooly and objectively, without feelings of disgust or pity or anything like that, and to deal with the matter on the evidence before the court, trying to be as cool and objective as you can and using your commonsense as best you can.

Now, there was a reference early in this case to another charge. I direct you that you should ignore that completely and should ignore completely any evidence which may have been indicated to you that something other than the matters charged occurred. Just put it right out of your mind. You are concerned with rape and indecent assault, and the indecent assault with which you are concerned is the act of oral intercourse to which the Crown made reference earlier in the case."

In this court counsel for the appellant contended that the evidence suggesting buggery was most prejudicial particularly in the light of the inadvertent reference to a charge of buggery against the appellant which had been made at the opening of the trial.

He contended also that there was some inconsistency in the conduct of the learned judge in that having refused to discharge the jury on the ground that the evidence was admissible as part of the res gestae he ultimately told the jury to ignore the evidence completely. It is to be noted that counsel for the appellant asked for no order on the ground that the evidence in question had been given. When asked if he had anything to say on the matter he declined the invitation to speak. It is our view that technically, in relation to the charges of rape and indecent assault the evidence in question was admissible as against the person in respect of whom the evidence was given. (See Ratten v. R. 1972 A.C. 378 and O'Leary v. The King [1946] HCA 44; (1946) 73 C.L.R. 566 per Dixon J. at 577) But the person against whom the evidence was given was one of the co-accused and not the appellant. The suggestion is that because of the reference to the buggery charge against the appellant the jury might conclude that the appellant had also committed buggery and that would operate to his prejudice. It was pointed out that Miss B had said that each of the accused had performed the same acts with her. This is true but it is necessary to note that this statement was made specifically in respect of rape and indecent oral assault and not generally. The relevant passage was:-

"You told us on Thursday that each of these men did exactly the same things as the other. You told us, I think, that each came to you, pushed you up, put his penis in your mouth twice and went away, having at all times his hands clasped behind your neck, right? --- Yes.

Is that a fair summary of what you told us? --- Yes.

And are you saying that each man came to you and went through these precise movements the same as the other, saying nothing? --- Yes.

Not a word said. And each one did exactly the same? --- That is correct, and that is how it happened."

It is to be observed that the jury was carefully instructed by the learned Judge that they should be careful to consider, in respect of the charges against each accused only the evidence which related to his conduct. Included in those instructions were the following passages:-

"I have also to deal in this case with a number of difficulties which are occasioned by the fact that there are in joint trials - there is a joint trial. Joint trial or no, the fact is that each man is entitled to the benefit of what is really a separate trial before you. And that means that in respect of each of the men accused you may take into account only the evidence which is admissible against him. And the easiest way in which I can demonstrate this to you is to refer you to the photographs. You will remember that in some of the photographs Mr Hagen is indicated as pointing out certain things. These are in the photographs numbered 21 to 25 and there are also certain things which he had indicated. In particular, the photographs where he is shown as indicating some things can be evidence only against him and you are not to take those photographs into account in assessing the case against accused men, Mr Weatherall and Mr Groves.

...

The general situation regarding the records of interview is this; if the record shows that the person being interviewed by the police at the particular time says something which may appear damaging, which may appear, in fact, to refer to somebody else that statement cannot be taken as evidence against that other person unless in some way it is adopted by him. That is if it was said that his presence in the circumstances where it might be adopted. And that does not appear to be the case here at all."

...

Now, as we go through the case I will take you, I think I should take you, to individual questions and answers to indicate to you how you should deal with the records of interview and particular questions which refer to persons other than the particular person who makes the record of interview.

But during the course of the case you were given some good advice. It is not the complete answer to the problem but it is of some considerable assistance to you I would suggest. When you go into the jury room there will be available to you the records of interview which have been taken in this case from Mr Hagen and Mr Groves. What you do when you are considering the case against Mr Weatherall, and I will be advising you to consider each of the cases separately, is to put on one side, preferably face downwards well out of your way the records of interview between the police and Mr Groves and Mr Hagen. What you should do when you are considering the case against Mr Hagen is to have the record of interview between him and the police available to you leaving the other one again face downwards. And similarly with the record of interview between Mr Hagen left face downwards as well.

...

I think I interrupted fairly early during the case to indicate this problem to you, that you cannot use evidence against anybody in this case unless it is admissible against him and I tell you it is admissible against him."

Had it been thought that the evidence in question, namely, evidence against Weatherall or Hagen but not against the appellant might be connected in some way with the appellant because of the earlier mention of the buggery charge against him there is little doubt that the learned Judge would have specifically directed the jury that the evidence given did not relate to the appellant at all. And if on behalf of the appellant there was any lingering anxiety as to the earlier reference to the buggery charge there is little doubt that his Honour would have given a specific direction about that also, as he had said he would. But although the opportunity was afforded no request was made.

It was of course unfortunate that the reference to a charge of buggery against the appellant was made in the hearing of those who thereafter became members of the jury. No doubt it was necessary that the jury should be told to ignore the incident. This they were told to do. The situation was complicated by the calling of the evidence suggesting buggery by the first person to have intercourse with Miss B. It was thought fit by the learned Judge, after objection had been taken to this evidence by counsel for Weatherall, to prevent any further reference by Miss B to buggery on the part of Weatherall. This ruling would no doubt have applied had there been similar evidence tendered against Hagen or the appellant. But no such evidence was tendered against them. Accordingly so far as the appellant was concerned the only reference to buggery was that made during the arraignment of the appellant. Of course there was the risk that the mere mention of buggery by one of the accused might "spill over" so as to involve also the other accused. So far as that was a possibility it arose out of the hearing together of the charges against each of the accused. No doubt at the start of the proceedings the learned judge might have ordered separate trials. But he was not bound to do so. But he did recognise that the references to buggery did need to be dealt with to ensure that none of the accused was prejudiced thereby. He did this by a direction that the jury should ignore it. So far as the appellant was concerned no special application had been made for any order or direction particular affecting him. It would seem that having failed in his endeavour to achieve a separate trial after the incident during the arraignment, counsel for the appellant was content to await the Judge's direction in the matter. The Judge's direction was certainly in clear terms applicable both to the incident at the arraignment and the evidence suggesting buggery by Weatherall. It was apparently accepted as sufficiently clear and it is our opinion that it was sufficiently clear. It is no doubt a sound view that in these days when juries are normally composed of persons of reasonable education they can and ought to be trusted to obey a judicial direction on a matter of this kind. Such trust is fundamental to a system of trial by jury. Although the learned Judge took the view that, as a matter of law, the evidence of the act of buggery was admissible it is clear that he also took the view that, in the circumstances of this case, as a matter of discretion, it should be excluded. I consider this was a correct view, and that his Honour properly exercised his discretion in excluding it. It was one thing, in refusing to discharge the jury on the ground that some evidence pointing to the commission of an act of buggery had been committed by Weatherall, to take into account that evidence of such an act was technically admissible. But actual admission of such evidence depended on other considerations. Had evidence of such an act been left to the jury its significance would have required special direction by the Judge. Apparently the evidence would have been unconnected, and thus, could only be acted upon by the jury after strict scrutiny by them. It is to be noted that on the real issues in the case, consent of Miss B and belief of the accused that she consented, the commission of the act of buggery, in the circumstances suggested by Miss B, was equivocal. It could indicate that Miss B's. consent extended even to buggery. On the other hand it could indicate that her submission to pressure by the accused was complete. To determine whether her co-operation in the matter was consent or submission, circumstances other than the commission of the act of buggery would be significant but not the commission of the act itself. And those same relevant circumstances related to the rape and the indecent act alleged with the same force and effect whether or not there was an act of buggery. In addition notwithstanding that the jury might be trusted to obey the direction to ignore the evidence, so far as it suggested buggery, there can be little doubt that evidence of the actual commission of the act would have made it more difficult for the jury to approach its task with that coolness and objectivity recommended by the learned Judge.

In all the circumstances I am of the opinion that the events referred to in grounds (i) and (ii) do not disclose any sufficient reason to set aside the verdicts and convictions in respect of the charges against the appellant.

Ground (iii) and (iv) of the appeal refer to evidence concerning the removal by the appellant of some $4 from the clothing of Miss B shortly after the sexual acts which the young men had performed with her. It was contended before this Court that the evidence in question because of its nature, and notwithstanding the comments of the learned Judge, would inevitably be regarded by the jury as evidence that the appellant stole this money from Miss B. If so, it was argued, the Crown by calling it was asserting a fact which it was estopped from asserting because the issue of the theft had been judicially determined in the appellant's favour by a competent court. And the evidence was that the appellant had been charged with stealing the $4 before such a Court and that the charge had been dismissed. The evidence of the taking of the money which was given on these charges of rape and indecent assault was contained in the evidence of a witness Lanaghan, in a record of interview between the appellant and Senior Constable Hepworth, and in the record of interview between the accused Hagen and Senior Constable Hepworth. The relevant evidence in chief given by Lanaghan was as follows:-

"MR McCRORY: And whilst you were walking on that journey with Mr Groves and Mr Hagen away from where you had seen the girl what happened? --- Peter Groves turned back.

And where did he go to? --- Back to where the girl was.

And did you see him again? --- Yes, he came back.

And when he came back what happened? --- He had a bag with him.

What sort of bag? --- Just a girl's handbag.

Would you recognize that bag again if you saw it? --- No.

Did you examine that bag? --- I looked.

And what happened with that bag? --- We searched through it.

Who did? --- All of us.

You searched through the bag? --- Grovesy searched through it.

In the course of searching through it did anything happen with that bag? --- No.

Why did you search through it? --- I do not know why.

You do not know? Was there any conversation at the time that you were searching through the bag? --- No.

What happened to the bag eventually? --- Grovesy took it back, I think.

Before Mr. Groves left to take it back was there conversation amongst the members of that little party, that little group? --- I cannot remember any.

How long was Mr Groves away from you? --- A couple of minutes.

Did you see him again? --- Yes.

Did you observe anything in and about him when he came back? --- No.

Was there some conversation when he came back? --- Yes.

What was that conversation? --- He said something about getting $4.

And what did you say, if anything? --- Nothing.

Did you hear any other conversation after that, immediately following that conversation? --- Yes, he said he asked her for the bus fare.

And did he show you anything at that time? --- No. And did Mr. Groves remain in your company? --- Yes.

Did anybody leave that little party again? --- When we got to the bus stop at the Plaza.

Before you left the location where you had been - where you had moved on your little journey and you had a look at the handbag? --- No.

Did Mr Groves remain - I withdraw that. Did Mr Hagen remain with you at that time when you - when Mr Groves had left? --- Yes.

Was Mr. Hagen present when Mr. Groves came back with the handbag and you moved off? --- Yes.

You went on your journey and you went to where? --- To the bus.

Did you have any conversation with Mr Hagen and Groves whilst you were on that journey? --- No, I do not think so."

In cross-examination of Lanaghan the following passages ensued:-

"MR PALMER: Mr Lanaghan, you told us a few moments ago that just about at the end of your time in this place, before you left it to go home, you all searched a handbag that was there and you told us that then Peter Groves went away and came back a few moments later and said something about $4. Did he, in fact, tell you that he had asked the girl for it and that she had given it to him? --- He said he asked her for it, yes.

...

Do you agree that he told you when he got back that he had asked the girl for it and that she gave it to him? --- Yes."

The relevant passages in the record of interview with the appellant are as follows:-

"Q.31. What happened then?

A. We walked about two hundred yards towards the Plaza. I could hear Brad saying 'C'mon a couple of times. I said 'Be quiet'. I walked back to her bag, took the bag in my hand. Walked about fifty yards away from them.

Q.32. What happened then?

A. I got lollies out of the bag, realised there was no money after I emptied the bag onto the ground. I pushed all the stuff back into the bag. I walked back to where the girl and Brad were.

...

Q.35. After you had walked back to where Brad and the girl were what happened then?

A. I put the bag down and went to her coat pocket which was hanging on the bush got four dollars out and walked back to Peter and Tommo. We then walked over to the Woden Plaza.

Q.36. Did you have any conversation with Peter HAGEN or Thomas LENEGHAN as you walked over towards the Plaza?

A. Yes, we ran a bit towards the Plaza hoping we could buy a couple of cans of beer before we departed, but the shops and everything was closed..."

The relevant passage in the record of interview with Hagen is as follows:-

"Pete said 'I'm gonna get some money for the bus fare' I said 'There's a little bit of change in the pocket of the jacket. 'Pete went to the jacket and went over to her bag where I had left it and got a packet of lollies out of it. Pete came back to where I was and said 'I got four bucks out of her coat' "

In relation to the evidence on the subject of the taking of the $4 from Miss B's pocket his Honour the learned trial Judge directed the jury as follows:-

"And then he (Mr Palmer) made the point that there were, in his view, a great number of irrelevancies, and indeed, in a sense, there were a great number of irrelevancies, not that they were not materials that you had to listen to, quite properly, but the real issues in this case may be said to have boiled down - if you agree with this view, and that is a matter for you - really to the question - did each of those young men believe she was consenting, or was she in fact consenting. Even if she was not consenting, did they each honestly believe she was consenting to both of the particular acts in question?

He refers you to the fact that Mr Groves was put on trial on a charge of stealing money from the girl, and, that being the case, you cannot therefore take the view, as far as you are concerned, that you are trying him in respect of that offence as well. You are not. It is not a matter which concerns you on that aspect. He is being tried, and it follows that a tribunal, a court of some kind, has found that it could not be satisfied beyond reasonable doubt that he stole that money, but I think there is a use to which you can put that, and I will come back to it later, but it is not on the basis that he is guilty of stealing the money."

Later his Honour said:-

"I would suggest that you ignore completely question and answer 30. There is nothing in it which either helps or damages Mr. Groves, and any material in it can only affect the others and it ought to be ignored, as far as they are concerned. Question 31 is concerning subsequent matters and then question 32 relates to the money in the bag or the search for money in the bag, getting lollies out of it.

Question 35 relates to the taking the $4 out and then walking over to the Woden Plaza. And while you do not use that to find as a fact that he stole some money, it may indicate to you the attitude which he too was taking to this young woman, throughout the whole of this evening."

It is to be observed that in this direction his Honour clearly contemplates that the answer to question 35 at least may carry significance to the jury as to the attitude of the appellant to Miss B at an earlier time of the night, namely the time relevant to the rape and indecent assault. The suggestion is that the attitude of one who would perform the acts referred to in the answer to question 35 and indeed any of the acts that might suggest the taking of the money would be complete disregard for, or indeed contempt for the feelings, property or convenience of Miss B If that were his attitude to her money might not his operating attitude in his sexual conduct relating to her have been the same? And one would accept that conduct indicating such an attitude would be relevant to the existence or genuineness of any feelings he had as to her consent or non consent to his sexual acts with her. If the jury were of opinion that the appellant did steal the $4 they might well think that the appellant cared not a rap for Miss B's feelings concerning her possessions or her body.

But as a matter of law it was not open to the jury to treat the answer to question 35 on the evidence of Lanaghan as showing that the appellant stole this money. He had been acquitted of that theft. Whatever may be said as to the application of the doctrine of issue estoppel in criminal cases it is quite clear from the judgments of the members of the High Court in The Queen v. Storey [1978] HCA 39; (1980) 140 C.L.R. 364 that the Crown may not challenge the ultimate result of a previous trial in which there was an acquittal. It was said by Barwick C.J. at p. 372:-

"The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal."

As stated by Aickin J. at p.424:-

"The giving of full effect to the acquittal does not in my opinion require that the evidence given at the previous trial must necessarily be excluded because it might, in the absence of explanation, suggest to the jury that the accused was guilty of an offence of which he had been acquitted.... I respectfully agree that the requirements of res judicata in this sense are not inconsistent with the admission of the evidence so long as it is made clear to the jury that the prior acquittal cannot be challenged and that the evidence must not be taken as showing or proving guilt on the prior charge."

The situation was explained by Gibbs J. at pp. 387 - 388 as follows:-

"Since the Crown cannot challenge an acquittal, and the accused it to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted. The evidence in question in Sambasivam's Case should in my opinion have been excluded entirely, as their Lordships hinted, but no objection was taken to it at the trial. However evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted. Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged. Such a warning will hardly be necessary if the question whether the accused has committed that offence is not raised in the later proceedings and it would not be likely to occur to the jury to consider that question."

In the present case it is said for the appellant that if the evidence in question was relevant, and was to be used adversely to the accused, it must have been on the ground that it indicated something like contempt for the feelings, property and person of Miss B. To say that the appellant stole her money when he took it, would obviously tend to prove this. It is said that if the jury understood that they were not to regard the matter as a theft but were responding to the suggestion that the evidence did indicate a contemptuous attitude to the accused, it is difficult to see on what hypothesis they would do this. If as was suggested, he took the money with the, permission of Miss B, it would hardly carry an adverse suggestion of any significance and would hardly be that to which the Judge would have been thought to be referring. Similarly if he meant to pay the money back. It was contended that short of the evidence being used to suggest that the appellant took the money and deprived Miss B of it, it has no significance of any reality in relation to the rape or the indecent assault.

It is a question as to how the jury would interpret the direction of his Honour. The critical and unmistakable message to the jury was that the jury might use the evidence against the appellant on the vital matter of belief of consent. "I think there is a use to which you can put that.". In this sentence "that" can hardly be anything other than the matters which had been before the court in respect of the offence of stealing, namely the charge the subject of the acquittal. It would seem therefore that the jury were plainly told that the evidence although relating to the earlier charge might be used by them in making up their minds as to the facts in this case and might do so notwithstanding the acquittal. This is confirmed in the later reference to the answer to question 35. That answer unexplained would hardly fail to convey the notion of a straight out theft. The jury was told that the answer may indicate to them "the attitude which he too was taking". The reference to "he too" would take the jury back to the comments of the learned Judge relating to Hagen's answer to question 30 in his record of interview with Constable Hepworth, concerning events after the sexual acts, namely

"I went to the bin and found a bit of rag in it and wiped my hands, and I saw her pants and wiped my hands with the pants and them threw the pants in the bin. I'd lit a fire in the bin for something to do while I was waiting. I think the pants were burnt in that fire."

The situation was then that the jury had before them advice that the evidence of taking the $4 was not put before them on the basis of theft, but nevertheless it might be used adversely to the appellant as indicating his attitude to Miss B at the time of the sexual acts. His Honour explained that when a finding of guilty of theft had to be made in the matter the Court which dealt with it was unable to be satisfied of theft beyond reasonable doubt. In the circumstances it would seem that the jury would understand that if the matter had been put before them on the basis of theft, it would be necessary for the jury to find, as a fact, as if it were trying the appellant for theft and then the standard of proof would be proof beyond reasonable doubt, but as the matter was not so put before them they could still use the evidence referred to without making any such finding of fact. In other words they would understand that they should not concern themselves to make a finding that he was guilty of stealing the money but could use the probability thereof, if they thought fit, on the matter of his attitude to the girl. Such an understanding would be consistent with his Honour's direction given early in his charge, namely,

"I will explain to you what the elements of each charge are. To prove each element beyond reasonable doubt the Crown does not have to prove each fact which is asserted in the Crown case beyond reasonable doubt. There may be facts asserted in the Crown case which you do not accept but if you are nevertheless satisfied beyond reasonable doubt that each element of a particular charge is proved then your duty would be to convict on that charge. If you are not satisfied beyond reasonable doubt that each element of a particular charge is proved your duty would be to acquit of that charge."

As a matter of reality it is difficult to think that the jury would understand that they were invited to treat the matter as adverse to the appellant but only on some basis, short of theft, which they would have to think of themselves. If his Honour had intended them to act only upon some hypothesis consistent with innocence of the appellant in relation to the money some discussion of the possible hypothesis would have been essential. But there was none.

The situation therefore is that the jury was invited to take into account on the issue of belief of consent the fact that the appellant had in fact taken the money without the consent of Miss B. This would strongly suggest theft. The case was therefore one in which a clear intimation to the jury was required that whatever else they thought they were to understand that the appellant was innocent of theft, that not only that they were relieved from having to make a positive finding on the question as to whether he stole the money, he was to be treated as innocent of theft.

Clearly the jury was not so instructed. To fail to so instruct the jury was to leave the jury under a misapprehension of law and accordingly amounted to a misdirection of law. In my opinion, also, having regard to the nature of the evidence which was left to the jury and the appellant's right to be treated as innocent of the theft of $4 the evidence should not have been admitted. It was so difficult to use the evidence adversely to the appellant on any basis consistent with such innocence as from a practical point of view to be impossible. The situation resembled that described by Jacobs J. in The Queen v. Storey (supra) at p. 411 as one where:-

"the particular nature of the (earlier) offence in relation to a (subsequent) rape made in practically impossible for the respondents to have the benefit of their acquittal on the (earlier) charge if the evidence (in question) was admitted."

What then are the powers and duties of this Court of Appeal in these circumstances, pursuant to s.28 of the Federal Court of Australia Act 1976? The Court is authorised, in the exercise of its appellate jurisdiction (inter alia), as follows, namely to give such judgement or make such order, as in all the circumstances it thinks fit, or refuse to make an order, set aside the verdict and judgement in a trial or indictment and order a verdict of not guilty or the other appropriate verdict to be entered, or grant a new trial in any case in which there has been a trial either with or without a jury on any ground upon what it is appropriate to grant a new trial. The very width of the discretion conferred on the Court, to act according to its view of what in the circumstances it thinks fit, or to what is appropriate in particular situations renders it appropriate that the Court should have regard to well established principles of justice. In relation to the administration of the criminal law there is such a principle described by Fullagar J. in Mraz v. The Queen [1955] HCA 59; 93 C.L.R. 493 at 514 as:-

"...the long tradition of the English criminal law law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."

His Honour there pointed out that it was under the influence of that principle that the proviso to s.6(1) of the Criminal Appeal Act 1912 to the effect that "the Court may notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour to the appellant dismiss the appeal if it considers that no substantial miscarriage of justice had actually occurred" had been regarded as requiring the Court of appeal to be satisfied that there was no real possibility that justice had miscarried. He pointed out that there were differences of expression in the cases but that the principle itself shines clearly enough through them. Thus in Cohen and Bateman v. The King (1909) 2 Cr. App. R. 197 Channell J. for the Court of Criminal Appeal said:-

"'Taking s.4 with its proviso, the effect is that if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso. In that case the Crown have to show that, on a right direction, the jury must have come to the same conclusion' (4)." (The emphasis is that of Channell J.).

Similarly in Sanders v. The King (1919) 14 Cr. App. R. 11 at p.13 Sankey J. said:-

"The question is, can the court say that the jury would have come to the same conclusion after a proper direction? This question must be answered in the affirmative, before the proviso to s.4 can be applied." (6)

Reference was made also to White v. The King (1922) 17 Cr. App. R. 60 at p. 65, Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) A.C. 462 at pp. 482, 483, R. v. Hoddy (1944) K.B. 442 at pp. 444, 445, Stirland v. Director of Public Prosecutions (1944) A.C. 315 at p. 421 and Kelly v. The King [1923] HCA 46; 32 C.L.R. 509.

In Stokes v. The Queen [1960] HCA 95; (1960) 105 C.L.R. 279 where on an appeal from a conviction by the Supreme Court of the A.C.T. for an assault upon a female under the age of sixteen years and the commission at the same time of an act of indecency upon her the High Court was satisfied that there had been a wrongful rejection of certain cross examination depending on a matter of law, and an erroneous misdirection on fact or evidence, the Court said that the decision of the appeal must depend "upon the 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." The Court expressly said that it regarded that rule as applicable to an appeal under s.52 of the Australian Capital Territory Supreme Court Act 1933-1959. In that case, in view of "the very great strength of the evidence" against the accused, the Court was of opinion that "no other verdict could reasonably be expected even under a summing up quite unexceptional". The topic was further considered by the High Court in Simic v. The Queen [1980] HCA 25; (1980) 54 A.L.J.R. 406, an appeal from a decision of the Full Court of the Supreme Court of Victoria dismissing an appeal against a conviction for murder in the Supreme Court of Victoria. Special leave to appeal was granted by the High Court on the ground that the case involved a question of principle, namely in what circumstances an appeal against a conviction should be allowed by reason of a mis-statement of fact by the trial Judge to a jury. In the result the appeal was dismissed basically because on examination the evidence against the appellant was exceptionally strong and the mis-statement relied upon was equivocal rather than categorical. However, in the course of its unanimous reasons for judgment the Court (Gibbs, Stephen, Mason, Murphy and Wilson JJ.) considered, in depth, the principles applicable where an appellate court is satisfied that in a criminal trial where there has been a conviction there was on the one hand a misdirection as to the facts, and on the other a misdirection of law or improper admission or rejection of evidence. As to a misdirection of the former kind the Court adopted the statement of principle expressed in Cohen & Bateman v. The King (1903) 2 Cr. App. R. 197 at p. 207 in the following terms:-

"A mistake of the judge as to fact or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words 'any other ground', so that the appeal should be allowed according as there is or is not a 'miscarriage of justice.' There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted.... If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso."

Referring to the test enunicated in R. v. Legatt (1971) V.R. 705 at p. 708 that "where there is a mis-statement as to the effect of evidence it will not invalidate a conviction unless the Court is satisfied that it is probable that but for the mis-statement the jury would not have returned the verdict it did" the Court said at p. 409:-

"The test thus stated is less favourable to an appellant than that which is applied in cases where there has been a wrong decision of a question of law -- cases that would include those in which there has been a misdirection as to the law or in which evidence has been improperly admitted or rejected. Some of the statements of the principle to be applied in cases of that kind are collected in Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493 at pp. 514-515. In such a case the Crown must establish that if there had been no error the jury would (or must) have come to the same conclusion. According to the test approved in R. v. Legatt, the appellant has the burdgen of showing that the mis-statement probably affected the verdict, whereas in the case of an error of law the appeal will be allowed unless the Crown shows that the error did not affect the verdict."

In Stokes v. The Queen (supra) the appeal was, as is this appeal, to this Court, one to which no statutory provision such as the proviso to s.6(1) of the Criminal Appeal Act 1912 was applicable. But the Court acted by what it described as the "general rule" that if an error of law or misdirection or the like is of such a nature that it could not reasonably be supposed to have influenced the result of a new trial need not be ordered". At the same time it is clear that in the case the Court refrained from ordering a new trial only because it was affirmatively satisfied that on the evidence no other verdict could reasonably be expected.

In the light of the foregoing and having special regard to the long tradition of English Law referred to by Fullagar J. and mentioned above it is my view in the exercise of its appellate jurisdiction in this class of appeal in this Court the statement of principle in Simic v. The Queen (supra) is applicable. Accordingly in an appeal from a conviction of a criminal offence where there has been a misdirection as to the law or evidence has been improperly admitted or rejected the appeal should be allowed unless the Crown shows that the error did not affect the verdict. I therefore turn to the question so raised.

In many cases it might seem of quite minor significance that there was a theft of a small sum from a young woman. But in this case I cannot but think it probable that it was of considerable importance. It was put by the learned Judge as providing a guide to the appellant's attitude to the young woman throughout the whole night. And that was the real issue. What was his attitude towards her? He said he believed she was a willing participant in what occurred. And there was much in the events of the night which might have supported such a belief in the appellant. Before the appellant met Miss B that night he had been informed by Weatherall not only that he had had intercourse with her but that the appellant and Hagen might have similar good fortune if they came along and met the young woman. Thereafter Miss B moved around in the company of and holding hands with Weatherall. When the party got into the motor car she was last in and sat on Weatherall's knee and engaged in acts of kissing with him. There was some question by Miss B as to the direction the car was travelling in and this was met by a statement by somebody in the car that the driver knew a short cut. However, when the car stopped the girl and Weatherall walked to the cemetery fence together. She climbed over, voluntarily and without assistance, and went along with Weatherall into the bushes. When Weatherall came back to the appellant and Hagen the young woman stayed in the bushes and remained there practically naked for about five minutes awaiting the next young man. That apparently was Hagen. When Hagen returned the young woman remained in the bushes still practically naked for about another five minutes awaiting the appellant. In the actual acts of intercourse between the appellant and her there was a minimum of resistence or dissent. During the acts there was apparently no conversation between the appellant and Miss B except that she said to the appellant "Can I go after you have finished?. and the appellant answered "Yeah, its nothing to do with me, then you can walk over with me and Peter back to the Plaza." And thereafter there was no complaint or dissent.

There was evidence of threats by Weatherall but those threats were not made in the presence of the appellant nor does it appear that he knew of them. After the sexual acts the appellant and Miss B walked back together to the others. It was at this stage that according to the answer to question 31 the appellant walked about fifty yards from the others taking Miss B's bag, emptied it on to the ground, and realised there was no money in it. It is quite clear that from at least when the party was in the motor car the appellant believed that they would all have sexual intercourse with the young woman. That was why when the car stopped he went with the others towards the cemetery.

The real case against the appellant must have been that he realised that the girl was of limited mental capacity. He gained some impression of this from her reference to "Mummy" as they proceeded to the place of action. But it was necessary to prove that he knew she was not consenting either from lack of mental capacity to do so or that he committed the sexual acts not caring whether or not she consented. That he must have realised that her capacity to resist or dissent was so low that her apparent acquiescence meant nothing could hardly be said to be established beyond reasonable doubt on the evidence. But that he did not care whether she consented or not was a conclusion that might have been gathered from various indications in the evidence. To have added to those factors an objective fact such as the rather contemptible removal of her $4 from her jacket pocket might well, as the Judge suggested, have revealed a general attitude towards the girl that she and her feelings were treated as just nothing. With that, sexual usage without reference to her feelings or desires would fit most comfortably. When the attitude of the appellant in the taking of the money was likened to that of Hagen in using the girl's pants to wipe his bloody hands and then burning them the evidence of the taking of the money could not fail to have been a material piece of evidence supporting the notion that the appellant ravaged her without a thought as to her attitude to the act.

Therefore in my opinion it is not and cannot be shown that but for the evidence of the taking of the $4 did not affect the verdict.

Accordingly, a new trial of the appellant should be ordered.

As was the case in Helmout v. The Queen No. F.C. 6 of 1980 decided on 20 October 1980 the most convenient manner of exercising the power is to remand the appellant in his present custody to appear before the Supreme Court upon his retrial unless the proceedings upon the indictment are earlier terminated. Under such an order the appellant retains his status as a prisoner under the Removal of Prisoners (Australian Capital Territory) Act 1968 and, if the retrial should result in a conviction, the time spent in custody should be taken into account in determining the appropriate sentence. Conversely, the possibility of acquittal requires that an application for bail pending retrial should be disposed of as quickly as possible. It is nevertheless an application which, we think, ought to be left to the discretion of the Supreme Court of the Australian Capital Territory. That is the Court before which any retrial must take place and before which the appellant must be remanded to appear.