Re Roger David Cheney v R [1991] FCA 37; 28 FCR 103 (19 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: ROGER DAVID CHENEY
And: THE QUEEN
No. ACT G45 of 1989
FED No. 44
Criminal Law
[1991] FCA 37; 28 FCR 103

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), Miles(2) and Von Doussa(3) JJ.

CATCHWORDS

Criminal Law - appeals against convictions for sexual assaults without consent - issue of identification central at trial - whether evidence should be received on the appeal "as fresh evidence" - whether the evidence could with reasonable diligence have been available at trial - whether the alleged fresh evidence raised a significant possibility that the jury, acting reasonably, would have acquitted the appellant - whether "similar fact" evidence led by the accused was admissible to establish similarities between the crimes charged and other sexual attacks in the area in respect of which the accused set up an alibi - whether admissibility dependent on "striking similarity" - whether evidence of photo identification admissible - whether verdict unsafe or unsatisfactory - whether an order that a victim's evidence be taken "in camera" under s.76D of the Evidence Ordinance 1971 (ACT) should be accompanied by a warning to the jury - whether the Crown should have been given leave to call a police officer in reply to prove a previous inconsistent oral statement by a witness for the defence - the procedure to be followed to prove a previous inconsistent statement of a witness admissible under s.61 of the Evidence Ordinance discussed - direction by trial judge as to use to which prior inconsistent statement could be put - whether no miscarriage of justice notwithstanding irregularity at trial.

Evidence Ordinance 1971 (ACT) s.61, 76D

HEARING

CANBERRA
19:2:1991

Counsel for the appellant : Mr B.J. Salmon, QC with

Mr T O'Donnell

Solicitor for the appellant : Gary Robb and Associates

Counsel for the respondent : Mr P. Roberts

Solicitor for the respondent : Director of Public Prosecutions

ORDER

The appeals be allowed.

The verdicts of guilty and the convictions be set aside.

There be a retrial on each count in the indictment.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The circumstances relevant to the determination of these appeals are disclosed by the reasons for judgment of von Doussa J., which I have had the advantage of reading. I agree in the orders which his Honour proposes for the determination of the appeals, and in his Honour's reasons.

2. The motion which the Court heard and dismissed yesterday, for leave to re-open the appellant's case after the appeals stood for judgment, was grounded upon an allegation that after the hearing of the appeals had concluded the appellant's legal representatives were shown a copy of a document dated 8 July 1988, composed by Detective Sergeant Mark Ronald Bayliss of the Australian Federal Police and called by him an "Occurrence Report", which included a statement that on that date the victim of the offences charged had in the presence of police seen a man, not the appellant, of whom she thereupon said "that she believed that (the man) was in fact her assailant." Notice of the motion having been given to the respondent's solicitors in December 1990 and the parties' solicitors having been notified that the Court would hear the motion on 18 February 1991, correspondence between those solicitors ensued. Affidavits filed and served on or before the first week of February on behalf of the respondent included an affidavit by the victim denying that she had identified the man as her assailant, and an affidavit by Sergeant Bayliss deposing that he had not been present when the victim saw the man and that what he had entered on the Occurrence Report concerning the victim's identification of the man "would have been based on what I understood from speaking with Detective Swan." Constables Swan and Connelly of the Australian Federal Police had brought the victim to the place where she saw the man, the evidence established.

3. When the motion came on for hearing neither Swan nor Connelly was present and no affidavit by either of them had been filed. Later Connelly was found and gave oral evidence on the hearing of the motion. No photograph of the man seen by the victim on 8 July 1988, nor the man himself, was available for the Court's inspection. When, in response to observations by members of the Court, application was made by counsel for the appellant for an adjournment of the hearing of the motion so that Constable Swan could be called as a witness and so that a photograph of the man, or the man, could be tendered in evidence, the submission was advanced that in all the circumstances the respondent should, if intending to oppose the motion, have either filed affidavits by the two constables or brought them before the Court. In support of this submission two letters by the appellant's solicitors were tendered. The first, dated 1 February 1991, included the following:

"We should make it clear that it is our contention that the facts
set out in the annexure to Mr. Thomas' Affidavit of 13 December
last should be accepted, bearing in mind their source. Documents
produced by Detective Constable Cotterill, who incidentally was
the informant to the Supreme Court, perporting (sic) to be police
records should accurately state the occurrence recorded. Clearly,
we are not really in a position to call evidence of the facts
beyond what we have already done."

The document to which reference is made as "the annexure" is the Occurrence Report. The second letter, dated 14 February 1991, includes the following:

"We note that the affidavits served do not include one from either
Constable Swan or Constable Connelly relating to the events at
Canberra Court House on 8 July 1988..."

4. The submission, and the statements in the letters, in my opinion disclose a misunderstanding of the task undertaken by the appellant's solicitors. It was for them to decide what evidence in support of the motion they desired to adduce, and for them to do whatever was necessary to that end. If something they wanted to do could only be done, or could only be done without inordinate expense, with the help of the Crown, it was their duty to ask the Crown for that help, and to specify exactly what they wanted the Crown to do. No request had been addressed to the Crown that Constable Swan be brought to the Court or be brought into communication with the appellant's solicitors. No request for a photograph of the man had been made.

5. Upon inquiry yesterday, it appeared that Constable Swan could not be brought to the Court before March, and that the whereabouts of neither the man nor a photograph of him were known. For those reasons, and because the Court thought it very unlikely that the granting of the motion would lead to an order disposing of the appeal which was more favourable to the appellant than the orders now to be made, the application for adjournment of the motion was refused.

6. I agree in the reasons which von Doussa J. has given for the Court's order, pronounced yesterday, that the motion be dismissed.

I have read in draft the reasons for judgment of Jenkinson J. and Von Doussa J. I agree with the orders proposed by their Honours and with their reasons.

The appellant was convicted upon the verdict of a jury of one count of assault with intent to engage in sexual intercourse and on four counts of sexual intercourse without consent. He appeals against these convictions. The amended notice of appeal also contains an appeal against sentence, but that has been abandoned. The hearing of the appeal extended over five days. After the Court had reserved its decision the appellant by notice of motion sought leave to reopen his case. On 18 February 1991 the Court refused leave and dismissed the notice of motion, saying it would give reasons for doing so at a later date.

2. All the offences charged arose out of an attack on a single victim which occurred at about 1.30 p.m. on Monday 4 July 1988 in a nature reserve in Canberra. At trial the assault and rapes were not in dispute. The appellant's defence was that he had been wrongly identified. The issue of identification was the central one.

3. The convictions are challenged on a number of grounds. The amended notice of appeal contends that the conviction should be quashed and a verdict of acquittal entered on the grounds that the learned trial judge erred in admitting the evidence of the victim purporting to identify the appellant by reference to a group of photographs one of which was of the appellant (ground 2); that the verdict was unsafe or unsatisfactory (ground 3); and that fresh evidence has become available upon which a jury properly instructed could not convict the appellant (ground 4). Alternatively, a retrial is sought based on six further grounds of appeal. One of those grounds, ground 7, contends that the learned trial judge erred in allowing the prosecution to lead evidence in reply. On this ground I have reached the conclusion that the trial of the appellant miscarried and that the conviction should be quashed. But the question remains whether one or more of the first three grounds of appeal have been made out so that the Court should record a verdict of acquittal rather than order a retrial.

4. The submissions made by counsel for the appellant on grounds 2, 3 and 4 in support of a verdict of acquittal are to an extent interrelated, and also incorporate submissions made in support of ground 8 which contends that a miscarriage of justice was occasioned by errors and inadequacies on the part of counsel who appeared for the appellant at the trial (who was not one of the counsel who now appear for the appellant).

5. It is convenient to first discuss ground 4. The fresh evidence relied on concerns three separate areas which counsel describe as "the no sperm point", the "modus operandi point" and "the hypnosis point".

6. On forensic testing of the victim's clothing a strong positive result was obtained for seminal acid phosphatase activity, both on presumptive testing and on Laurell Rocket immunoelectrophoresis in stains on the cotton panties of the victim, but microscopic examination of slides made of extracts from the areas of those stains revealed no evidence of spermatozoa. The findings, and more particularly the possible significance of them, so it is contended, were not known to the appellant's counsel until after the trial, as it had been assumed from a briefly expressed conclusion in a forensic report which stated that tests were "inconclusive" that the forensic evidence was of no significance. The fresh evidence sought to be relied upon includes a full explanation of the testing procedures adopted by the forensic biologist concerned, the test results obtained, evidence from a forensic scientist and a scientist at an infertility medical centre to the effect that the absence of a finding of spermatozoa indicated a high probability that the attacker was infertile, possibly as the consequence of a vasectomy, evidence from the appellant that he had sired children in 1982 and 1983 and has not been vasectomised, and evidence that a semen sample provided by the appellant on 26 June 1990 was found on microscopic examination to contain a large number of spermatozoa. It is contended on this evidence that it was highly unlikely that the appellant was the attacker.

7. The "modus operandi point" is based on evidence which came to the attention of the appellant when one of the counsel who had been briefed to argue this appeal on his behalf drew his attention to possible similarities between features of the evidence led against the appellant at his trial, and evidence led in the trial of another person charged with sexual assaults on two other victims which had occurred two days before, on 2 July 1988, and in a locality about three to four kilometres away. At the time of the hearing of the appeal, the trial of that other person had not been completed, and the information placed before this Court about the crimes on 2 July 1988 permits no view to be formed as to the identity of that offender. Extracts of evidence given in proceedings against that other person were tendered on the hearing of this appeal in support of the proposition that there are striking similarities between the two attacks such that it is probable that the same person was responsible for both. Evidence was also led from the appellant and from a Mr Onsoe who in July 1988 resided in the same house as the appellant to establish that the offender on 2 July 1988 was not the appellant.

8. The "hypnosis point" arises from the fact that between the date of the attack with which the appellant was charged and his apprehension as a suspect, the victim had undergone hypnosis in an effort to assist her recall of details of her attacker. On the appeal, evidence from a psychologist, Mr Gibson, was proffered to show that a person who has undergone hypnosis to improve recall of an incident may be susceptible to the deliberate, and to the inadvertent, influence of people associated with the investigation of a traumatic incident in which the subject of the hypnosis has been involved, and about which questions have been asked during hypnosis. Mr Gibson has given evidence that the susceptibility might lead the subject, after hypnosis, to become "ultra co-operative and compliant without the normal critical intellectual evaluation which usually 'inoculates' against external 'contamination'". It is contended that the risk of unreliability is such that this Court should declare that evidence should never be received in a criminal trial from a victim of the crime who has been subjected to hypnosis, or alternatively, should not be received unless procedural safeguards during the administration of the hypnosis, which were not adequately followed in the instant case, have been followed.

9. The principles which are to guide an appellate court asked to set aside a conviction on the ground of fresh evidence are discussed in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, Gallagher v. The Queen [1986] HCA 26; (1985-1986) 160 CLR 392 and Mickelberg v. The Queen [1989] HCA 35; (1988-1989) 167 CLR 259. The principles have been formulated having regard to the fundamental question whether a miscarriage of justice has occurred. Generally speaking, there is no miscarriage of justice in the failure to call evidence at trial if that evidence were then available, or, with reasonable diligence, could have become available: Ratten v. The Queen at 516-517, Mickelberg v. The Queen at 301. The fresh evidence must also have the quality variously described as "credible", "cogent", "relevant", "plausible" before it will ground a successful appeal, Mickelberg v. The Queen at 301. If the fresh evidence is of this kind the proper question is whether the court considers there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. There remains debate whether this formulation of the test differs in substance from the alternative formulation which poses the question as whether the jury would have been likely to have acquitted the appellant had the fresh evidence been before it at the trial: Mickelberg v. The Queen at 273, 275, 301. If there is any difference in these formulations of the proper test, the difference is not decisive of the outcome of this appeal.

10. If the fresh evidence, viewed in combination with the evidence given at the trial, leads the court of appeal to conclude that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant, the conviction will be quashed. Ordinarily the order of the court will provide for a retrial, as the accused, and the community, are entitled to have the guilt or innocence of an accused person decided by a verdict of a jury. However, if on a review of all the evidence, being the evidence before the jury at the trial, and the fresh evidence adduced on the hearing of the appeal, the court concludes that a verdict of guilty upon a retrial would be set aside as unsafe or unsatisfactory, the court should immediately give effect to its view and enter a verdict of acquittal: Burton (1987) 24 A Crim R 169.

11. It may be accepted that the appellant did not actually know the full extent of the evidence now advanced as fresh evidence in support of the "no sperm point" and the "hypnosis point", but he faces a threshold difficulty in establishing that this evidence could not with reasonable diligence have been available at the trial. On this question Barwick C.J. in Ratten v. The Queen observed at 517:

"Great latitude must of course be extended to an accused in
determining what evidence by reasonable diligence in his own
interest he could have had available at his trial, and it will
probably be only in an exceptional case that evidence which was
not actually available to him will be denied the quality of fresh
evidence."

Nevertheless, I am of the opinion that the evidence now advanced on both points could with reasonable diligence have been available to the appellant at trial. See also Lawless v. The Queen [1979] HCA 49; (1978-1979) 142 CLR 659 at 666, 675-677.

12. An inquiry by the appellant's solicitors by letter made after the trial to the biologist who examined the victim's clothing revealed the test results which were lacking in the short report tendered at the committal hearing which described the tests as "inconclusive". There is no reason to think that inquiry if made at the committal stage would not have produced the same answers. The other inquiries that followed could have been made before trial. In the case of the evidence relied on in support of the "hypnosis point" that too could readily have been obtained before trial. The fact that the victim had undergone hypnosis was disclosed at the committal, as was the fact that the victim whilst under hypnosis recounted that her attacker had hair on his face. That description was at odds with the description of the attacker as being clean shaven which she gave to the police immediately following the attack, and was disclaimed by her straight after the hypnosis session as being incorrect. Counsel for the appellant cross-examined the victim at the trial on this inconsistency and emphasised to the jury the possibility of unreliability in the victim's identification of the appellant, made after the hypnosis session, on account of the influence of hypnosis. The point is not relevantly a new one which came to the appellant's attention only after the trial.

13. Although I consider the evidence on these points does not qualify as being evidence that could not, with reasonable diligence, have been available at trial, in case I am wrong about this, I express my conclusions about the probative value of the so-called fresh evidence. The evidence led on the "no sperm point" about the reliability of the testing techniques and the significance of the results was credible and cogent, although exhibiting differences of opinion between the experts. The important question which remains, assuming the evidence is to be taken into account on the appeal as fresh evidence, is whether this Court considers that a verdict of a jury based on the totality of the evidence now available would be unsafe or unsatisfactory. The evidence on the "no sperm point" is, in my opinion, not necessarily indicative of the innocence of the accused. Even if it is accepted that the techniques of analysis adopted correctly lead to the conclusion that the seminal acid phosphatase stains on the victim's panties contain no sperm, the expert evidence of Professor Handelsman in particular, but also that of Mr Yates, leaves open explanations why this may be so if the appellant were the attacker. The absence of sperm could be accounted for either as a not uncommon fluctuation in sperm count that occurs in "normal" adult males; or as being the result of a febrile illness, such as influenza. The accused in the course of his interrogation by detectives explained his habit of wearing two sweaters by saying that he had suffered severe bouts of influenza prior to July 1988. The evidence adduced before this court, depending on the view which the jury took of the different witnesses, might cause them to have a reasonable doubt as to the appellant's guilt, but on the other hand it might not. A verdict of guilty in the face of that evidence could not, on that count alone, be unsafe or unsatisfactory.

14. The evidence relied on to support the "hypnosis point" was also inconclusive. It is unnecessary to explore the expertise of Mr Gibson to give the evidence which was adduced from him. Although his expertise was criticised by counsel for the respondent on the ground that it was based on academic theory rather than clinical experience, a witness may be qualified as an expert on the ground of academic study in the relevant discipline, and Mr Gibson's expertise was sufficiently established in this way for this Court to receive his expert opinion on the assumption that it was otherwise admissible. No evidence was adduced in opposition to Mr Gibson's opinions. But those opinions do no more, in my view, than raise the abstract possibility that evidence of identity given after hypnosis by the victim of a sexual attack might be unreliable. As I understand Mr Gibson's evidence, the concern which he voices is that if the hypnotist was not scrupulous to avoid leading questions and comments which could unwittingly implant a suggestion about a fact, there is a risk that something said by the hypnotist could make the evidence of the witness given thereafter unreliable on matters to which the leading questions or suggestion related. (See para.5 of Mr Gibson's affidavit sworn 16 July 1990). Mr Gibson had the benefit of viewing a video tape of the hypnosis session involving the victim. Whilst he considers the video tape to be a less than perfect record as it does not fully record the total conversation between the hypnotist and the victim at times when she was not under an hypnotic trance, he cannot relate anything said or done by the hypnotist to any particular aspect of her later identification evidence in a way that would suggest that the identification is likely to be unreliable. It is significant that at the time of the hypnosis the appellant was not a suspect for the crime. In my opinion, the evidence of Mr Gibson in combination with all the other evidence does not lead to the conclusion that a verdict of guilty by a jury acting reasonably on proper instruction would be unsafe or unsatisfactory.

15. In expressing this conclusion I have assumed that the evidence given by Mr Gibson, upon proof of his relevant expertise, is admissible. Counsel for the respondent disputed that expert evidence of the kind proffered from Mr Gibson could be admissible at trial. In my opinion expert evidence would be admissible for the purpose of showing that by reason of having undergone hypnosis the normal functions of intellectual evaluation of recollections of past events by the victim of the crime are likely to be disturbed. The effects which hypnosis may have upon the mind of the subject, and upon the reliability of evidence subsequently given by that person about events which occurred before the hypnosis, are likely to be outside the experience and knowledge of a judge and jury. On this footing expert evidence is admissible to furnish the court with scientific information about the effects of hypnosis: see Murphy v. The Queen [1989] HCA 28; (1989) 86 ALR 35 at 47. If the normal processes of the mind are likely to have been altered or disturbed by pre-trial hypnosis, expert evidence to that effect is within the statement of principle laid down by the House of Lords in Toohey v. Metropolitan Police Commissioner (1965) AC 595 at 609.

16. The whole topic of the admission of evidence from a witness who has undergone hypnosis raises difficult and complex questions which were touched on in Van Vliet v. Griffiths (1978) 19 SASR 195 and The Queen v. Geesing (1984) 39 SASR 111. This is not an appropriate case in which to consider whether general principles of the kind contended for by the appellant should be laid down, although I am inclined to the view that each case must be considered according to its circumstances and the expert evidence, if any, led at trial.

17. The evidence adduced on the "modus operandi point" was evidence that could not with reasonable diligence have been ascertained by the appellant and his counsel before the trial. The premise underlying that evidence is that sufficient similarity exists between the features of the two attacks to raise, at the least, a reasonable doubt about the guilt of the appellant. The principles which govern the admission of "similar fact" evidence as part of the Crown case to establish identity against an accused person have been extensively discussed in recent years by the High Court in Markby v. The Queen [1978] HCA 29; (1978) 140 CLR 108, Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, Sutton v. The Queen [1984] HCA 5; (1983-1984) 152 CLR 528 and Hoch v. The Queen [1988] HCA 50; (1988) 165 CLR 292. Those principles require that there be a striking similarity between the circumstances of the offence charged and the circumstances of other offences about which evidence is sought to be adduced to implicate the accused. The requirement reflects the recognition that "similar fact" evidence is likely to be unfairly prejudicial to the accused and that a jury might attach too much importance to it: Perry v. The Queen per Gibbs C.J. at 585, Sutton v. The Queen per Brennan J. at 547. Different considerations apply where it is an accused person who seeks to adduce "similar fact" evidence as part of his defence. The risks that the jury will attach undue importance to the evidence and may misuse it to the prejudice of the accused will not arise: Knight v. Jones, ex parte Jones (1981) Qd R 98 at 101-102, 108. Nevertheless the proposed "similar fact" evidence must pass the basic test of relevance to be admissible.

18. Counsel for the appellant has argued the appeal on the assumption that the "similar facts" put forward will be admissible if there is a "striking similarity" between the crimes committed on 2 July 1988 and those committed on 4 July 1988. That the evidence must meet this stringent requirement finds support in R. v. Livingstone (1987) 1 Qd R 38 at 43-44. Where it is the prosecution which seeks to lead "similar fact" evidence, the evidence, to meet the criterion of admissibility, must reveal "striking similarities", "unusual features", "underlying unity", "system", or "pattern" (Hoch v. The Queen at 294-295, Thompson v. The Queen [1989] HCA 30; (1989) 86 ALR 1 at 28), before it will have sufficient probative force to outweigh the risk of prejudice to the accused. But where that risk is not an issue, and recognising that to make good a defence the accused need only raise a reasonable doubt as to guilt, there is reason to hold that the criterion of admissibility is somewhat lower. In Knight v. Jones, ex parte Jones, Macrossan J. at 108-109 expressed the opinion that the test of admissibility will be more akin to the test applicable in civil cases. The test to be applied in civil cases is discussed by the Full Court of South Australia in Sheldon v. Sun Alliance Insurance Limited (1989) 53 SASR 97 at 102, 144-148, 155. Bollen J., with whom Prior J. agreed on this point, considered that evidence of "similar facts" will be admitted in civil cases if that evidence is logically probative, i.e. if it is logically relevant in determining the matter which is in issue (p 148).

19. In Duff v. The Queen [1979] FCA 83; (1979) 39 FLR 315 at 347-350 a Full Court of this Court considered the admissibility of evidence which the accused at trial sought to lead as "similar fact" evidence. At p 348 the Court said:

"Evidence of similar facts is admissible to prove a fact in issue
when the connexion between the alleged similar fact and the fact
in issue is so close or immediate that in the common experience of
mankind the fact in issue is likely to have occurred if the
similar fact occurred. An allegation of a mere similarity between
the way in which a person performs a particular task on one
occasion and the way in which he is alleged to have performed it
on another does not, at least in the generality of cases, show the
kind and degree of connexion between the occasions which is
essential to the admission of evidence of the former occasion as a
similar fact to prove the way in which the task was performed on
the latter occasion."

20. In my opinion, where the issue is one of identity, "similar fact" evidence to be admissible at the calling of the accused must be evidence which demonstrates a sufficient degree of similarity between the circumstances surrounding the crime charged and the circumstances of the other event to give rise to the real possibility, based on common experience of human affairs, that the person who committed the crime charged was the person responsible for the other event. In addition, of course, it would be necessary for the accused to lead evidence to the effect that the person responsible for the other event was not the accused.

21. The evidence sought to be relied on by the appellant as to the circumstances of the sexual attacks on 2 July 1988 was for the most part strictly not in admissible form. Evidence given in other proceedings by the victims of the other crimes was proffered to the court. The victims were not called. This is perhaps understandable as those victims were young girls, and at the time of the hearing of the appeal the trial of another person charged with crimes concerning the young victims was to take place. I pass over the difficulties which confront the appellant arising from the form in which the fresh evidence has been put forward. It is contended that the evidence from the other proceedings shows striking similarities between the crimes on the two dates. In particular it is said that each occurred in the hours of daylight, in a public place not far from dwelling houses. Each victim was "seized" and taken to a secluded place. The attacker in each instance covered his head with an item of clothing. The attacker in each case was described as about 6 feet tall. The victims noted some peculiarity in the attacker's voice. The attacker withdrew from the scenes of the crimes without being observed to do so by the victims. At some stage during the attacks the attacker was perceived by the victims to have a flaccid penis. At first glance this catalogue of apparent similarities is impressive but on scrutiny, insofar as scrutiny is possible on the information before the Court, these alleged points of similarity are hardly distinctive of one person. There are however two other matters of alleged similarity which have greater potential to be distinctive, namely that in each attack a victim alleges that the attacker obscured her vision with an article of blue and white cloth, and in each attack clothing of a victim revealed stains which tested positive to seminal acid phosphatase activity without evidence of spermatozoa in the relevant stains. Again, the information on these matters before the Court does not permit any close scrutiny of the degree of similarity between the attacks. These points of similarity have not been the subject of investigation during the legal proceedings which have taken place. The points of alleged similarity were not known at the time of the appellant's trial and were passed over. The possibility of a close degree of similarity cannot be ruled out, but against that possibility it is clear from the information before the Court that there are other circumstances of the attacks which are markedly different. The attack on the victim of the crimes with which the appellant was charged was a particularly forceful and violent one, and the victim was a mature adult woman. The other attack was of a quite different character upon two very young girls. The sexual acts allegedly performed by the attacker in each instance were also different.

22. Apart from the uncertainty about the similarity of the circumstances of the two attacks, the evidence adduced by the appellant to establish that he could not have been the attacker on 2 July 1988 was also inconclusive. On the information before this Court, assuming it to be admissible, it is wholly impossible to say that if it were led before a jury, and the jury, acting reasonably, convicted the appellant, that the conviction would be unsafe or unsatisfactory.

23. I return now to ground 2 which alleges that the learned trial judge erred in admitting the evidence of the victim purporting to identify the appellant from a group of photographs. After the investigating detectives alighted on the appellant as a suspect he declined a request to take part in an identification parade. In these circumstances the use of a photo board was appropriate. The victim was shown a board on which were affixed photographs of 12 men. She identified that of the appellant. The attack on the admissibility of that evidence rests mainly on a narrow point. It is contended that because the photograph of the appellant showed him in a different pose to the subjects of the eleven other photographs that fact drew attention to him. The appellant was shown positioned so that his body was slightly side on with his face turned towards the camera. All the other men were positioned so that their bodies and faces were directly facing the camera. In my opinion the appellant's complaint is without substance. If the minor difference in pose were perceived to be significant by the victim, which I think is most unlikely, the position of the appellant was likely to suggest that the photograph was not one taken for the purpose of a police identification, in contrast with others on the board. The striking feature of the photo board is the close similarity of various features which are common between the appellant and several other men whose photographs are included. I am unable to discern anything about the photo board which was liable to suggest the appellant as the police suspect or which was otherwise unfair. It is also contended that as the victim had undergone hypnosis this may have made her selection of the appellant unreliable. I am unable to think why that should be so, and the evidence of Mr Gibson does not raise this as a real possibility. In my opinion the victim's evidence of identification was rightly admitted. An identification based on photographs of course carries with it the risks always inherent in this type of identification which the High Court discussed in Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395. The risks were highlighted in this case by the limited opportunities which the victim had to see her attacker's face, as her attacker covered her head during most of the attack. The identification evidence required careful direction to the jury; such direction was duly given.

24. The identification of the accused was not based solely on the victim's selection of the appellant's photograph on the photo board. In particular, there was evidence that on 2 September 1988 the victim was asked to view a selection of sport shoes, tracksuit pants, and sweaters with hoods attached; to listen to a number of recorded voices; and whilst blindfolded to feel a number of ropes. The last of these procedures arose as the victim had described in detail to the police immediately after the attack the feel of a rope which had been wound around her neck during the attack. The victim selected a pair of white sports shoes, a sweater with hood attached, and, after initial doubt, a pair of tracksuit pants as those being worn by her attacker, and she also selected one piece of rope. All these items which she selected had come from the house occupied by the appellant.

25. The shoes and sweater were the appellant's, but the tracksuit pants belonged to his wife who resided in the same house. The coincidence between the victim's selection of the appellant's photograph and these various items of clothing and the rope provide strong evidence of identification.

26. The victim failed to correctly identify the appellant's voice recorded on one of the tape recordings. She had given to the police a close description of the attacker's voice which does not fit the normal voice of the appellant which the Court heard when he gave evidence during the appeal, but that could be explained by the attacker's limited conversation with her, the circumstances under which that conversation occurred, or by the attacker disguising his voice. The initial description of the attacker's shoes given by the victim also referred to white sports shoes with a blue band whereas the shoes she selected did not have any blue on them. These discrepancies were stressed during the trial and provide reason to consider closely the totality of the evidence as to identity. Nevertheless the coincidence between the selection of the photograph and the other items associated with the appellant remains strong evidence. The ground of appeal which contends that the verdict of the jury was unsafe or unsatisfactory, is one now to be evaluated having regard to the evidence admitted at the trial, in combination with the fresh evidence. I have already made separate comment on each topic of fresh evidence, but finally the decision is one to be made having regard to the cumulative effect of all the available evidence. In my opinion on all the evidence, even including the "fresh evidence" which I consider would have been available to the appellant on reasonably diligent inquiry, it cannot be said that a "jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused": Chamberlain and Anor v. The Queen (No.2) [1984] HCA 7; (1983) 153 CLR 521 at 534. Although for reasons yet to be discussed I consider the appeal must be allowed, I consider a retrial should be ordered.

27. It is convenient at this point to refer to the notice of motion by which the appellant sought leave to reopen his case. In support of the motion, it was contended that after the Court had reserved its decision on the appeal the applicant's solicitors learned for the first time, from documents gathered during the trial of the person charged with the two assaults which happened on 2 July 1988, that a police "occurrences" sheet prepared on 8 July 1988 suggested that the victim in this matter had identified another person as her attacker. The appellant sought to establish as fresh evidence that the victim had made a positive identification of the other person. The occurrence sheet recorded that on 8 July 1988 the victim had been brought into the foyer of the Canberra Magistrates' Court by Constables Connelly and Swan and asked whether she could identify her attacker amongst people moving to and fro. A suspect who had come to the attention of the police was to appear in court that morning on an unrelated matter. The victim failed to identify anyone, so she was taken by Constables Connelly and Swan to another part of the premises where the suspect was signing bail papers. The occurrence sheet was prepared by Detective Bayliss who was supervising this aspect of the enquiries. He wrote:

"She viewed him initially and was unable to make a positive
identification so acting upon that I asked constable Connelly to
take the complainant upstairs to have a better view of him with
the view to obtaining an opinion as to how close he was to the
description available to Police. On the second viewing the
complainant became upset and told Constable Swan that she believed
that (the suspect) was in fact her assailant."

28. On the hearing of the notice of motion Detective Bayliss and Constable Connelly gave evidence and were cross-examined; and an affidavit obtained by the respondent from the victim was tendered, but the appellant did not seek to cross-examine her. The appellant had not arranged for Constable Swan to be present to give evidence and the Court refused an application to further adjourn the proceedings for him to be called. Detective Bayliss had no contact with the victim on 8 July 1988. The statement set out above was prepared entirely from information received from Constables Connelly and Swan. Notwithstanding the statement that the victim "believed that (the suspect) was in fact her assailant" Detective Bayliss took no steps to have the suspect detained and says his understanding was that the victim stated only that the suspect was similar in appearance to her attacker.

29. Constable Connelly was present when the victim had the second viewing of the suspect. His recollection is that the victim was undecided about the identity of the suspect saying words to the effect "It could be him, I am not sure, he is similar looking". The victim in her affidavit has sworn that:

"My recollections are that I told Police Officer Swan that I
perceived similarities in that man to the person that had attacked
me. At no time did I state or indicate that he was the man and I
know that he was not the man who attacked me. While I was being
escorted to a second area of the Court I became upset because I
was still very distraught as a result of the assault itself and
because I had spent many hours trying to assist police with their
enquiries."

On this evidence, and in the absence of cross-examination of the victim, the alleged "fresh evidence" does not establish a definite earlier identification by the victim of another person, and it does not necessarily undermine the reliability of the victim's identification of the appellant. It would be open to a jury to accept the victim's evidence of identification. It cannot be said that a verdict of guilty would be rendered unsafe or unsatisfactory by the alleged "fresh evidence".

30. As the evidence which would be relied on by the appellant as additional "fresh evidence" if he were given leave to reopen his case on the appeal could not have the effect of rendering the verdict of guilty unsafe or unsatisfactory, that evidence could not affect the outcome of the appeal. For this reason the Court dismissed the notice of motion, and did so without entering upon the submission of the respondent that in any event the information could with reasonable diligence have been ascertained by the appellant before trial.

31. I turn now to the other grounds of appeal.

32. Ground 5 complains that the trial judge erred in ordering that the victim's evidence at the trial be taken "in camera" instead of making the usual order preventing evidence capable of identifying the victim from being published beyond the confines of the court room. It is contended that as the jury was given no warning or direction that the victim's evidence was not to be given extra weight because of the order, the making of the order had the effect of elevating her evidence "to a status not appropriate".

33. The order, or rather the direction, was made under s.76D of the Evidence Ordinance 1971 (ACT) ("the Ordinance") which reads:

"76D.(1) Any evidence given by the complainant in prescribed
sexual offence proceedings (including evidence given
under cross-examination) shall, if the court so
directs, be given in camera.
(2) Where the complainant in prescribed sexual offence
proceedings gives evidence in camera under sub-section
(1), a person nominated by the complainant is entitled
to be present in court when the complainant gives that
evidence in those proceedings."

That section is found within Part XA of the Ordinance which was introduced by the Evidence (Amendment) Ordinance (No.2) 1985. Part XA contains a package of provisions which revised procedural law relating to the trial of sexual offences. There is no requirement in the Ordinance, where a direction is given under s.76D, that any explanation or warning be given to the jury. It is left to the trial judge to decide in the circumstances of the case what, if any, explanation is required. In the instant case when the prosecutor announced that he proposed to call the victim, the learned trial judge said "I direct that the evidence of this witness be taken in camera, would you please make an order". The prosecutor asked that the victim's husband be exempted, and he was. The clerk then announced "All persons are commanded to leave the hearing of the court". There is nothing about this course of events which would suggest to the jury that any unusual procedure was being adopted, or that the victim had in some way attracted the sympathy of the court. The jury of course would have noted that the direction applied only whilst the victim was giving evidence, but as ordinary members of the community, they would have readily understood that the court was cleared because of the intimate and embarrassing nature of parts of the victim's evidence. There is no reason to think that the jury might have accorded the victim's evidence any special weight because it was taken in camera. Had the learned trial judge entered on an explanation as to why the direction had been made, that would have drawn attention to the fact that a special procedure was being invoked for the victim. Any attempt to give a warning of the kind contended for by the appellant potentially could have led the jury into confusion as to how they should give appropriate weight to the victim's evidence. In my view the learned trial judge wisely followed the course which he did. There is no basis for the challenge in ground 5, and in any event no complaint was made to the trial judge at the time about the course which he followed.

34. Ground 6 contends that the learned trial judge erred in his directions to the jury concerning the identification evidence. The only point raised under this ground is that the direction about the pose of the appellant in his photograph on the photo board was made in a dismissive manner. Counsel for the appellant directs attention to the following passage in the summing up:

"You know how the photographs were obtained in this case. They
seemed to have been obtained in the fairest possible manner
subject to the qualification which defence counsel seeks to have
you make in respect of the pose of the accused."

However these were not the only remarks which his Honour made in the course of his summing up on the topic of the pose of the appellant. In the course of summarising the defence case his Honour fully and fairly explained the possible significance of the pose and invited the jury to consider whether they thought that it might have attracted the attention of the victim to the appellant's photograph. That statement followed a comprehensive direction as to the risks inherent in this type of identification evidence. In the context in which it was made, I do not think the impugned passage in the summing up was either dismissive or inappropriate. This ground of appeal fails.

35. Ground 7 of the notice of appeal contends that the learned trial judge erred in allowing the prosecutor to call evidence in reply. The evidence in reply was given by Sergeant Lawler who had been one of the principal investigating detectives. He had given evidence earlier in the trial covering aspects of the police inquiries and the interrogation of the appellant. The application of the prosecutor to call the evidence in reply was based on answers given in cross-examination by Gail Cheney, the appellant's sister, who had been called in his defence. The appellant had given an unsworn statement in which he asserted his innocence. He said that he had at the relevant time been with his sister in her home. The effect of Gail Cheney's evidence in chief was that on the day charged the appellant was residing in her house. She had risen late, as she was ill, at about 11.30 a.m. From that time until about 2.30 p.m. she had been in the presence of the appellant in her house. She had cooked his lunch, and they had discussed family matters. At about 2.30 p.m. she returned to bed. This broadly was the picture given by the appellant in his unsworn statement about the movements of himself and his sister between 11.30 a.m. and 2.30 p.m. The offences were alleged to have happened at about 1.30 p.m. Notice of intention to lead evidence from Gail Cheney in support of an alibi had been given to the Crown well before the trial.

36. An attack upon the credit of Gail Cheney had been anticipated by defence counsel as he led from her in chief that on 17 August 1988, when the police arrived at her house intending to search for evidence of clothing and other articles associating the appellant with the offences, she had falsely denied that the appellant was living there. This falsehood she corrected the next day by telephoning the police. She offered the excuse in evidence that she had panicked. In the event, the prosecutor did put to her that the falsehood offered on 17 August 1988 was a lie to assist her brother, and she agreed. The cross-examination however concentrated mainly on the records of three interviews which Gail Cheney had with Sergeant Lawler on 20 and 23 August and 21 September 1988 respectively. Insofar as extracts from the records of interview were put to her in cross-examination it seems that whilst the statements she made on these occasions differed somewhat in points of detail, on each occasion she gave the basic story that she had been ill that day, she had got up late, and she thought the appellant was at home during the day, but she could not be sure. It seems that during the period when the interviews occurred on 20 and 23 August 1988 the appellant was elsewhere and could not communicate with his sister, or she with him. The appellant was arrested and charged with the subject rapes on 7 September 1988. Between 7 and 15 September 1988 Gail Cheney visited the appellant in gaol on one occasion. On about 15 September 1988 she telephoned Sergeant Lawler. The third interview was after that communication. In the course of cross-examination counsel for the Crown asked her:

"You see, is it not the fact, Miss Cheney, that before speaking to
Detective Sergeant Lawler on 21 September 1988, you had a
conversation with your brother in which your movements and his
movements on the afternoon of 4 July were discussed?---They were
mentioned.
Mentioned - discussed?---Yes.
And that was the reason for your call to Sergeant Lawler, was it
not?---It was not specifically the reason. The reason why I rang
Mr Lawler was because I was so distressed. As I said, I went to
talk to my brother and he was just asking me a few questions.
You see, you told Mr Lawler, I suggest, that you had been to see
Roger and that he wants you to change your story?---No, I did not.
I suggest to you that you told Mr Lawler - - -?---No, I did not
say that.
...
Well you agree with me, though, do you not, that when you saw the
accused you discussed with him what your movements and what his
movements were on 4 July?---He had asked what I had said in my
statement, and I told him. I said, 'It's already down on
statement, Roger.'"

The interview between Sergeant Lawler and Gail Cheney on 21 September 1988 was tape recorded and later transcribed. The following specific questions and answers from the transcript were then put to Gail Cheney by the cross-examiner:

"Q.'That is all I wanted to speak to you about in relation to what
Roger told us as it directly concern you. What I would like to
ask you about is when you went to speak to him, would you be
prepared to tell me what he said to you?'
A.'Well, I'll tell you what I can remember. I went up to visit
him just out of love, and he seemed to be questioning me a lot,
that is all?'
Q.'Right, questioning you about what?'
A.'Well, mostly about what I had said on that Monday in my
statement, and he told me what he said, and I said to him that I
have told John (Lawler) exactly what happened, and now have I got
it down on statement. And he told me that he had said that he has
had me in view in all day, and I told you, Roger, what I have
said, I have said, which was the truth'. He said, 'Oh, well,
okay.'
Q.'Was he suggesting to you that, or inferring that you should
change what you said or - - -'
A.'Well, he wasn't inferring or suggesting. It seemed like he was
giving a statement as to what he said that he had me in view all
day and asking me what I had said in my statement and I just told
him.'
Q.'Right, and what you are saying is that - is it fair to say that
you cannot account for Roger - for Roger's movements during the
course of the day?'
A.'No, I can't. I can't account for them at all, because as I
said, I was in bed sick and just let him go his own way. I don't
know what he did while he was by himself while I was in my
bedroom. I gather he'd be watching tv or something because I
can't hear noises from down in my bedroom up to the lounge room;
the door was always shut to keep the heat in; the lounge room
from the hallway, and I never suspected anything of anything that
was going to be wrong, because to me he was living a normal
life.'"

37. She agreed that she gave these answers. These prior statements were clearly inconsistent with her evidence-in-chief. Had the matter rested there, the inconsistencies, and her admission that she had lied to help her brother on 17 August 1988, must inevitably have had the effect of greatly damaging her credit and reliability in the eyes of the jury.

38. At the close of the defence case the learned trial judge permitted Sergeant Lawler to be called in reply. The effect of his evidence was that on or about 15 September 1988 Gail Cheney had telephoned him. She said she had recently seen her brother who, amongst other things, had asked her to change her story. Sergeant Lawler had made no notes of this conversation and his description of it was in general terms which left open the possibility of mistake or misunderstanding on his part as to what Gail Cheney was reporting about her conversation with the appellant, but this possibility was not later adverted to in the charge to the jury. It seems that the trial went forward on the footing that Sergeant Lawler's evidence established that Gail Cheney on 15 September 1988 had made an oral statement inconsistent with her later evidence: on 15 September 1988 she had said her brother had asked her to change her story; in her evidence she had denied that this request was made.

39. Proof that the appellant had asked his sister to change his story would have been relevant to the issue of the appellant's guilt. Such conduct on his part would be suggestive of a guilty mind. The evidence in reply was therefore evidence that Gail Cheney had made a prior statement "relating to the subject-matter of the proceedings" within the meaning of s.61 of the Ordinance. That section reads:

"61.(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."

40. The section applies to criminal proceedings, and to oral statements: Hudd v. R. (1987) 75 ALR 143, R. v. Daren (1971) 2 NSWLR 423. In her cross-examination Gail Cheney did not admit that she had made the statement alleged, and the section, by its terms, made evidence of the earlier alleged statement admissible.

41. There is nothing before this Court to show that the defence was aware of the terms of the conversation with Gail Cheney alleged by Sergeant Lawler before the question was put to her in cross-examination about her brother asking her to change her story. Had she agreed to that proposition her answer would have provided important evidence in proof of the appellant's guilt, but the issue whether the appellant had engaged in inculpatory conduct of this kind had not been raised during the Crown case. It was raised for the first time during the cross-examination of Gail Cheney.

42. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence, although the trial judge has a discretion to allow the prosecution to call evidence after the close of the case for the defence. The principles which govern that discretion have been discussed by the High Court in Shaw v. R. [1952] HCA 18; (1952) 85 CLR 365 at 378-380, 383-384; Killick v. R. [1981] HCA 63; (1981) 147 CLR 565 at 568-571, 575-576; Lawrence v. R. (1981) 38 ALR 1 at 3,7, 22-23 and R. v. Chin [1985] HCA 35; (1984-1985) 157 CLR 671 at 676-677, 684-686. The application of these principles to the situation where a matter probative of the guilt of the accused is first raised in cross-examination of the accused, or a witness for the defence, was considered in R v. Chin, although the matter had been touched on also in Lawrence v. R. at 3,8. In R. v. Chin Gibbs, C.J. and Wilson J. said at 678-679:

"In general, it would be unfair to raise, in cross-examination,
some entirely new matter which was affirmatively probative of the
guilt of the accused but which had not been the subject of
evidence either at committal proceedings or in the prosecution's
case in chief, unless the accused had been given prior notice of
such matter."

Dawson J., with whom Mason J. agreed, said at p 686:

"The principle of fairness which underlies the general rule that
the prosecution must lead the evidence, upon which it relies to
establish its case, in the course of presenting that case, has an
application beyond the exercise of the discretion to allow the
reopening of the prosecution case. If in the course of

cross-examination

of an accused person or his witnesses, the prosecution
asks questions with a view to eliciting evidence for the first
time which could and should have formed part of its evidence in
chief, then that evidence may be exclude (sic) in the discretion
of the trial judge if its admission for the first time during
cross-examination would unduly prejudice the accused, having
regard to the obligation resting upon the prosecution to make its
case known before the presentation of the defence case: see Reg.
v. Kane (1977) 65 Cr App R 270."

43. In the present case it is difficult to see how the prosecutor could have led evidence as part of the Crown case that the appellant had asked his sister to change her story. It is not suggested that anyone else was present at the conversation. Gail Cheney had been called as a witness for the Crown at the committal hearing but had been declared hostile. The Crown was on notice that the defence would call Gail Cheney in support of the appellant's alibi. I do not think it can be said in the present case that the issue whether the appellant had asked his sister to change her story was one that could have formed part of the evidence in chief in the Crown case. Nevertheless the question of fairness still arises. In Niven v. The Queen [1968] HCA 67; (1968-1969) 42 ALJR 306 evidence in reply had been called by the Crown after the defence case had closed to establish a prior inconsistent statement. Section 98 of the Evidence Act 1910 (Tas.) relevantly provided:

"Every witness under cross-examination in any proceeding, civil or
criminal, may be asked whether he has made any former statement
relative to the subject-matter of the proceeding, and inconsistent
with his present testimony, the circumstances of the supposed
statement being referred to sufficiently to designate the
particular occasion, and if he does not distinctly admit that he
made such statement, proof may be given that he did in fact make
it."

The High Court held that this provision did not confer a paramount right to have evidence admitted. To understand the passage from the judgment which I am about to set out it is also necessary to refer to s.371(i) of the Tasmanian Criminal Code which provides:

"Evidence in rebuttal may be called by the Crown if the judge is
of opinion that in the circumstances of the particular case it
should be allowed;"

The High Court said at p 307:

"But, though evidence to contradict his denial is made admissible
thereby, s.98, in our opinion, does not confer upon the party
seeking to call the evidence any paramount right to have it
admitted, and, particularly, to have it admitted at any particular
point in the course of a trial or hearing. Evidence made
admissible by s.98 is in relation to s.371(i) in the same case as
any other admissible evidence sought to be called by the Crown
after the conclusion of the case for the accused. It is to be
regarded, in our opinion, as evidence in rebuttal within the
meaning of s.371 and subject to the same discretion of the trial
judge as any other evidence.
However, the fact that cross-examination of the accused has taken
place in order to provide a basis for the evidence to be called to
establish the making of the prior inconsistent statement, will no
doubt be material to be borne in mind if and when the Crown seeks
an exercise in its favour of the discretion under s.371. It would
therefore be advisable, in our opinion, for a trial judge as well
as for the prosecutor, to bear in mind at the time the

cross-examination

is being entered upon that a serious problem may later
arise if the prosecutor seeks to adduce evidence to establish the
prior inconsistent statement, particularly if that statement
amounts to or includes an admission by the accused of guilt or of
some significant fact in relation to its proof."

44. In the present case I think an element of unfairness arose by reason of the prosecutor asking the question directed to obtaining an admission that the appellant had asked his sister to change her story when no notice had been given to the defence of the matter. The failure to give notice deprived the appellant of the opportunity to decide whether to call the evidence of Gail Cheney: cf R. v. Chin at p 680. However had the matter not been followed up by the prosecutor's application under s.61 of the Ordinance to recall Sergeant Lawler in reply, the element of unfairness involved may have been of little consequence in the overall course of the trial.

45. The application to recall Sergeant Lawler raised squarely for consideration the exercise of the discretion of the trial judge. The discretion is one that must be exercised having regard to all the circumstances of the case: Killick v. R. at 576. Evidence should only be allowed where it goes to a serious material point, and where its probative value clearly outweighs the prejudicial effect that is likely to arise from the timing of the evidence: Lawrence v. R. at 16. A helpful summary of considerations relevant to a case like the present one is to be found in R. v. Kern (1986) 2 Qd R 209. In that case it was held that evidence should not have been admitted in reply to prove an earlier inconsistent statement of an alibi witness. Section 18 of the Evidence Act 1977-1984 (Qld), like s.61 of the Ordinance, permitted proof of a prior inconsistent statement by a witness after the proper foundation had been laid. Derrington J. (with whom Kelly S.P.J. agreed) said at 211-212:

"Evidence which is admissible by reason of s.18 is technically
capable of being led in rebuttal but subject to the discretion of
the trial Judge, which is applicable to all rebuttal evidence in
accordance with the principle set out more recently in Killick v.
R. [1981] HCA 63; (1981) 56 ALJR 35; 37 ALR 407. Briefly stated, it
emphasises the dangers of unfairness to the accused caused by the
admission of rebuttal evidence so that it should be allowed only
when the Crown could not have reasonably anticipated its need, and
then only in respect of a serious and material point and where the
probative value of the evidence is strong. The section does not
provide any statutory right to call such evidence exclusive of the
discretion and does no more than make that evidence admissible in
a proper case: R. v. Ghion (1982) Qd R 781. Unlike Killick v.
R. (supra) and a number of other cases where the evidence could
have been led in the Crown case, the relevant evidence here could
not of its very nature be called until after the defence case.
The position in such a case was left open in Parker v. R. (1982)
41 ALR 576; but it was held in R. v. Neville (1985) 2 Qd R 398
that where ss.18 and 101 had operation so that the Crown sought to
lead evidence in rebuttal of a prior inconsistent statement of a
defence witness the considerations which were relevant in Killick
v. R. (supra) had application in competition with the factor of
the inability of the prosecution to call the evidence any earlier.
How the discretion will be exercised will depend upon the relative
strength of the probative force of the evidence as to the real
issues for the jury and the possible prejudicial effect of
rebuttal evidence in general, together with any other relevant
factors. On these considerations in the present case, because of
the casual nature of the conversation in issue, and consequently
because the result is more a question of credit of a witness than
of direct evidence relating to the offence, in general principle
it was not of such probative force as to justify its being allowed
in rebuttal."

46. In the present case the evidence in reply could go only to the credit of the witness. An inconsistent prior statement admitted under s.61 provides no evidence of the truth of matters asserted in the statement: Alchin v. Commissioner for Railways (1935) 35 SR (NSW) 498 at 509. In practical terms, as counsel for the respondent frankly conceded before this Court, the evidence in reply could have had little effect on the credit of Gail Cheney. Her credit and reliability had already been effectively challenged by cross-examination on other inconsistent statements. To allow a principal investigating detective to have the last word, as it were, during the evidence was likely to have a marked impact on the jury, serving to give the evidence undue importance. In my opinion the evidence ought not to have been admitted.

47. The unfairness to the applicant arising from the wrongful admission of the evidence in reply from Sergeant Lawler was compounded in two ways, firstly by an exchange between counsel and the trial judge in the presence of the jury before Sergeant Lawler was recalled, and secondly by the terms of the summing up.

48. The following parts of the transcript summarise the exchange between counsel and the judge:

"HIS HONOUR: ...Is there anything in reply?
PROSECUTOR: Yes, there is. I propose to recall Detective
Sergeant Lawler in reply...
(Discussion ensued about Gail Cheney's evidence)
PROSECUTOR: ...Now, in my submission, that is a statement that is
inconsistent with the evidence of the witness and it is a
statement that she denies in part having made, and I would also
submit that it goes to a matter that is part of the subject matter
of the proceedings as distinct from merely a question of the
credit of the witness in that it goes to her evidence of alibi for
the accused. I think that is shortly the way I put the evidence I
propose to call.
HIS HONOUR: Yes.
PROSECUTOR: I have not said anything about the presence...of the
ladies and gentlemen of the jury because they heard the questions
that I put.
HIS HONOUR: Yes.
DEFENCE COUNSEL: Two points, your Honour, by recalling Sergeant
Lawler, the purpose of his evidence can only be designed to
further discredit the witness Gail Cheney. The other point is
that when I re-examined her on Friday I covered this point myself
by reference to a certain part of the conversation that she had
with Sergeant Lawler, so there is evidence before the court on
this point.
HIS HONOUR: But it does not really go to credit, does it? It
goes to what is an issue in the case, whether he was present or
not at the scene on Cooleman Ridge. That cannot be credit.
DEFENCE COUNSEL: With respect, your Honour, I disagree with you
there. It can only go to credit..."
HIS HONOUR: No, let us look at the case just in relation to what
you say about it not being credit.
DEFENCE COUNSEL: No, I am saying it can only go to credit.
HIS HONOUR: It is an issue, is it not, whether the accused was
present on Cooleman Ridge or not that afternoon.
..."

49. This exchange gives stark prominence to the importance of the evidence and suggests that it goes to the issue whether the appellant was present at the scene of the rapes. This leads on to the terms of the summing-up. Clear direction was required to ensure that the jury properly understood the use which could be made of the evidence given in reply and in particular to ensure that they did not treat the evidence as providing proof that the appellant had urged his sister to falsify her evidence to provide an alibi. The evidence could not have this quality. At best it was only a hearsay account of the appellant's conduct.

50. In the course of the charge to the jury the learned trial judge said:

"There are a number of special matters in this case which require
very close attention. There are four and reference has been made
to all of them by counsel during the course of their address, but
I have to summarize them carefully to you. The four are:
evidence relating to identification, the use of photographs, the
use of alibi evidence, and what you do if you find that the
accused has told lies or that somebody has told lies in support of
his case.
...
Because a person offers an alibi...in explanation of his
situation, it does not follow that if you disbelieve the alibi you
necessarily find him guilty of the offence with which he is
charged. In fact, that can quite frequently be a very dangerous
thing to do.
A false alibi may be put forward for any number of reasons, for
example, an accused, if he has only his own truthful evidence to
rely on, may stupidly fabricate an alibi to get - or get lying
witnesses to support him out of fear that his own alibi or
evidence will not be enough. He might say to himself, 'My chances
of being believed by the jury are so slim that I need some
support', and he might attempt to fabricate an alibi for that
purpose. That does not necessarily mean that he is guilty. It
simply means that he is frightened that he will be convicted.
But if you are satisfied that the sole reason for the fabrication
of an alibi - if you are satisfied that there is a fabrication
here - was to deceive you and there is no other explanation that
can be put forward or has been put forward or none that occurs to
you reasonably, the fabrication may provide support for the
identification evidence." (Emphasis added)

Following the directions on the law, his Honour undertook a review of the evidence. When that review of the Crown case had been completed the prosecutor interrupted the summing up:

"PROSECUTOR: I apologise for interrupting, your Honour. Your
Honour did not mention the evidence of Sergeant Lawler this
morning. I do not know whether that was - the only reason I
mention it is because obviously your Honour would not have the
transcript of that.
HIS HONOUR: I just merely mentioned (sic) that you will remember
Sergeant Lawler's evidence this morning, ladies and gentlemen.
That may or may not assist you to decide whether Miss Cheney was
lying or not."

51. Those directions did not explain to the jury the limited use which could be made of the evidence in reply. The jury were told that the evidence might assist them in deciding whether Gail Cheney was lying. With the emphasis which the evidence in reply had received by reason of its timing, from the discussion which occurred about it between the judge and counsel, and from the prosecutor's interruption during the summing up, it is unlikely that the jury would have failed to use it to the disadvantage of the appellant in that way. The reference to the use of the evidence to assist in deciding whether "Miss Cheney was lying or not" was likely to be related by the jury to the earlier directions as to the support on identification which they might draw if they concluded the appellant had got someone to tell lies in support of his case. The likely effect of those directions was to give further prominence to the importance of the evidence in reply and to encourage the jury to use it not simply on the collateral question of Gail Cheney's credit, but as important evidence probative of the appellant's guilt reflected by his request to have her change her story.

52. In my opinion the wrongful admission of the evidence of Sergeant Lawler in reply, and the absence of adequate direction as to the use to which that evidence could properly be put, caused the trial to miscarry.

53. In the course of argument before this Court the question arose as to the procedure which should be adopted where the Crown seeks to have a prior inconsistent statement admitted under s.61 of the Ordinance, and in particular whether the proper course was to wait until the close of the defence case and then to call the evidence in reply. It was suggested that this has been the procedure followed in the Australian Capital Territory, and it is the procedure that was followed in Queensland in R. v. Kern, in New South Wales in R. v Daren, and in Tasmania in Niven v. The Queen, although in the latter decision the High Court pointed out at 307 that evidence made admissible under the Tasmanian Evidence Act in strictness does not always amount to evidence in rebuttal of the case made by the defendant.

54. Prior inconsistent statements may be proved and used in support of an application to have a witness declared hostile. Where this occurs it is customary for the witness under challenge to be stood down from the witness box, and for another witness to be called to prove the inconsistent statement: see Russell v. Dalton (1883) 4 LR (NSW) 261; R. v. Hunter (1956) VLR 31; Price v. Bevan (1974) 8 SASR 81. After proof of the prior inconsistent statement is led, and if the first mentioned witness is declared hostile, that witness returns to the witness box and cross-examination ensues. In my opinion there is much to be said for adopting a similar procedure where a party seeks to prove a prior inconsistent statement under s.61 to challenge the credit of a witness under cross-examination. In Price v. Bevan at 90 Bray C.J. contemplated that a witness under general cross-examination could be stood down to interpose a witness to prove prior inconsistent statements once the foundation for the admission of those statements had been laid.

55. Proof of an inconsistent statement under s.61 is permitted for the sole purpose of impugning the credit of the witness. It is in the nature of an aid to the effective cross-examination of the witness. The general rule is that where it is proposed to attack the credit of the witness, that attack should be made known to the witness whilst he or she is in the witness box. The witness should be given the opportunity to respond. The point is sufficiently illustrated by reference to Browne v. Dunn (1894) 6 TR 67 (HL) Lord Herschell L.C. at 70-71 said:

"Now, my Lords, I cannot help saying that it seems to me to be
absolutely essential to the proper conduct of a cause, where it is
intended to suggest that a witness is not speaking the truth on a
particular point, to direct his attention to the fact by some
questions put in cross-examination showing that imputation is
intended to be made, and not to take his evidence and pass it by
as a matter altogether unchallenged, and then, when it is
impossible for him to explain, as perhaps he might have been able
to do if such questions had been put to him, the circumstances
which it is suggested indicate that the story he tells ought not
to be believed, to argue that he is a witness unworthy of credit.
My Lords, I have always understood that if you intend to impeach a
witness you are bound, whilst he is in the box, to give him an
opportunity of making any explanation which is open to him; and,
as it seems to me, that it is not only a rule of professional
practice in the conduct of a case, but is essential to fair play
and fair dealing with witnesses."

See also Lord Halsbury at 76-77. Section 61 provides that the evidence of the prior statement 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" and to some extent this meets the requirements of fairness which underlie the rule in Browne v. Dunn. Nevertheless, upon proof of a prior inconsistent statement the making of which has not earlier been admitted, the witness may have an explanation or qualification which could be given if the inconsistent statement were proved before the witness left the witness box: cf Price v. Bevan per Walters J. at 97.

56. Calling the evidence said to prove the making of the prior inconsistent statement before the witness is released from cross-examination would have two advantages over the procedure adopted in the present case. Firstly, it would lessen the risk that the timing of the evidence as to the making of the statement would give that evidence undue prominence. Secondly, the jury would be more likely to understand the limited purpose for which the evidence was admitted if it were called in circumstances which illustrated in a practical way that the evidence was part of a trial within a trial about the credit of the witness.

57. The view was expressed in R. v. Chin by Dawson J. at pp 690-691 (with whom Brennan J. agreed on this point at 681) that a document proved by a witness in the course of cross-examination may be tendered there and then by the cross-examiner. His Honour cited a passage from Wigmore on Evidence, Chadbourn Rev. (1976) para.1884 where it is said:

"Where the cross-examiner proves a document by the witness, under
the orthodox rule allowing him to put in his own case on
cross-examination...it would seem that he ought to be obliged to
put it in formally as evidence before closing his
cross-examination, so as to enable the calling party to re-examine
the witness as to the document, for reasons much the same as in
the case...of a document proved on direct examination;..."

If a prior inconsistent statement relied on for the purpose of s.61 of the Ordinance is a statement in writing it will be put to the witness during the cross-examination, and, if admitted, be thereby proved. On proof by the admission the statement may thereupon be admitted into evidence: Alchin v. Commissioner for Railways at 509, and R. v. Chin, supra. The witness then has the opportunity either during the cross-examination or in re-examination to make explanation or qualification. To follow the procedure of proving an inconsistent statement which is not admitted, whether oral or in writing, for the purpose of s.61 before the witness is released from cross-examination would bring about a similar result.

58. However, whilst these matters can be urged in favour of a procedure under s.61 whereby an alleged prior inconsistent statement is proved before the witness whose credit is impugned has been released from the cross-examination, the practice of treating such evidence as evidence in reply, or evidence in rebuttal, is well established, and it is, I think, too late for this Court to say that this procedure constitutes procedural error. It seems to me, however, that the alternative procedure of standing down the witness during cross-examination to allow proof of the prior inconsistent statement to be led there and then is an available one, and one which will frequently be the better course.

59. Finally, ground 8 gives particulars of the way in which it is contended that the conduct of the trial by defence counsel involved error and inadequacy leading to a miscarriage of justice. In light of the conclusions already reached it is unnecessary to go into these matters, although I should express my view that the material before this Court does not make out this ground of appeal.

60. There is one further matter to which reference must be made. On the appeal the appellant gave evidence and was cross-examined. Hitherto he has exercised his right to stay out of the witness box. Counsel for the respondent submits that answers which were elicited from him in cross-examination have so strengthened the case against him that this Court should hold on the totality of the evidence now available that any irregularity which occurred in the trial did not lead to a miscarriage of justice. It is contended that the appeal should therefore be dismissed. The Court will take this course only where it is positively persuaded by the prosecution that no miscarriage of justice has occurred: Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 at 615, Hudd v. R. (1987) 75 ALR 143 at 151. It is open to question how far the appellant's cross-examination strengthened the Crown case. The matters forcefully emphasised in the cross-examination concerned matters of circumstantial evidence which were urged before the jury at trial. Although admissions made by the appellant may give strength to the proof of the circumstantial facts, the crucial question is not the existence of those facts, but the inferences arising from them. Although the case against the appellant is a relatively strong one, I am not persuaded that no miscarriage of justice was occasioned by the wrongful admission of the evidence in reply.

61. For these reasons I consider the appeal should be allowed, the convictions quashed, and that a retrial be ordered.