Kelleher v R [1974] HCA 48; (1974) 131 CLR 534 (6 November 1974)

HIGH COURT OF AUSTRALIA

KELLEHER v. THE QUEEN [1974] HCA 48; (1974) 131 CLR 534

Criminal Law

High Court of Australia
Barwick C.J.(1), McTiernan(2), Gibbs(3), Mason(4) and Jacobs(5) JJ.

CATCHWORDS

Criminal Law - Rape - Corroboration - Warning of danger of convicting on evidence of prosecutrix alone - Whether necessary where there is substantial corroboration - Desirability of warning- Form of direction - Whether warning necessary when identification of accused the only issue at trial - Warning of danger of acting on identification evidence.

HEARING

Sydney, 1974, August 29, 30; November 6. 6:11:1974
APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

Nov. 6.
The following written judgments were delivered: -
BARWICK C.J. On 31st October 1973 the applicant for special leave was found 1971 and on the same date of having assaulted and robbed her of a gold finger ring. He was also convicted of having stolen on the same date a television set the property of Linda Tomkins. I need not go into the sordid circumstances of the occasion out of which the charges arose. It suffices to say that there was no dispute at the trial that the prosecutrix had been raped on the occasion in question by a number of members of a bikie gang called the "Galloping Gooses". It was conceded that the applicant was a member of this gang and that he was present on the occasion when the flat, in which the prosecutrix was raped, was raided by this gang. The applicant was identified by the prosecutrix as the man who had raped her when she saw him at the Central Court of Petty Sessions, Sydney, on an occasion when he was charged with the rape of another girl on the same date, a charge which in the event was dismissed by the magistrate. The prosecutrix saw and identified the applicant outside the court room before the court proceedings began, though she did not communicate her identification, which included the theft of the ring, to the police till later in the morning. After the police had been so informed, the applicant was charged with the offences of which he was later convicted. There were criticisms made of the circumstances in which the identification took place, it being said that the identification was the result, whether conscious or unconsious, of promptings or suggestions then made by other persons present at the time the prosecutrix saw and identified the applicant. (at p537)

2. There was evidence given at the trial by a young man named Harper who said he saw the applicant with others dragging the prosecutrix into the bedroom where she was raped. Harper was not a member of the gang of "Galloping Gooses" but an invited visitor to the flat. He had been assaulted by one or more of the members of the gang. There was no context at the trial that his evidence was capable of being corroborative of the evidence of the prosecutrix as to the identity of the man who raped her. But there was a context whether or not that witness was to be believed so far as he implicated the applicant. (at p537)

3. It was not suggested at the trial by the applicant that the prosecutrix was mendacious in saying that she was raped and that the applicant was the person who raped her: but it was claimed that she was mistaken in her identification of him as that man. Consequently, the only substantial issue before the jury was whether or not the identification by the prosecutrix of the applicant as the man who had raped her and stolen her ring was to be accepted. The identification of the applicant as the person who stole the television set was not made by the prosecutrix. (at p537)

4. The applicant was represented at the trial by counsel of experience. In his final address to the jury, which was a long and forceful address, counsel dealt at length with the law's emphasis on the necessity for a jury to exercise great caution on any issue involving identification. He referred to mistakes that had been made in past criminal trials when an innocent man had been convicted as a result of a mistake in his identification. He also quoted, but without reference to there origin, classic legal statements of the principles relating to identification. Counsel for the Crown, in his address, also referred at length to the question of identification and warned the jury of the care with which they must approach the issue. In his summing up, the learned trial judge made it quite clear that it was essential to a verdict of guilty that the jury must be satisfied beyond reasonable doubt that the intercourse with the prosecutrix had been had by the applicant without her consent. He said: "The big question is, has it been proved that it was the accused person who had the intercourse with her". Later, his Honour said: "The real issue posed to you by both the Crown and Mr Roden" (counsel for the applicant at his trial)" is as to whether it has been proved beyond reasonable doubt that the accused man did these things", that is to say, raped Leslie Watson and stole her ring and the television set. His Honour proceeded: "Gentlemen, it is said that jurors should be warned when approaching this question of identification of people, they should be told that there are dangers in it. I echo those words of warning that the law says should be given to a jury but having mentioned that let me say this to you, which is also the law, that you have regard to the circumstances. You should be told that you must approach evidence of identification and this issue of identification with care, but that warning quite obviously depends on the circumstances", and his Honour then proceeded to give illustrations of circumstances where perhaps there was less need for great warnings to be careful. I take his Honour's reference to what the jury should be told, and which he said he echoed, to be a reference to the lengthy and emphatic statement which the counsel for the applicant had made to the jury. I may say at once that it is not a satisfactory method of summing up for a judge simply to endorse what a counsel has said; he should himself express so significant a matter as a warning against a too ready acceptance of evidence by a prosecutrix of the identification of her sexual assailant. But when a judge does take the course taken by his Honour, undesirable and unsatisfactory as I think it is, he does give the weight of his authority to the statement which counsel has made, so that it cannot be said that the judge has not given those warnings or cautions which, having been given by counsel, he has confirmed by such a statement as I have quoted. It seems to me that the trial judge felt that the emphasis made by counsel on the need for caution in this case had been perhaps undue, and that in order to restore balance to the matter he gave the illustrations to which I have made reference. (at p538)

5. I therefore approach the question whether the summing up was radically deficient for want of an express caution as to the danger of accepting the uncorroborated evidence of a prosecutrix in a charge of a sexual nature, upon the footing that the judge had warned the jury of the need for caution in accepting the evidence of the identification of the applicant. That meant, of course, in accepting the evidence of the prosecutrix; for hers was the only direct evidence of identity in relation to the rape and theft of the ring. (at p539)

6. Before proceeding further with that matter I should mention and dispose of a submission that the summing up inadequately dealt with the criticisms made of the prosecutrix's evidence as to the relevant identity of the applicant. There were, of course, criticisms which could be made of the identification of the applicant by the prosecutrix, but these, it seems to me, were fairly put to the jury by the trial judge in the course of his summing up. I am unable to accept the view that the summing up was so defective in the treatment of the identification as to amount to an error on the part of the trial judge warranting an order for a new trial. The summing up had what might be described as an undesirable sketchiness in the treatment of the evidence, including the evidence of the identification of the applicant. But I neither think that a new trial was warranted, nor that any ground is shown for the grant of special leave to appeal because of deficiencies in the summing up on the question of identification of the applicant. (at p539)

7. I turn then to the only other matter put forward as a ground for the grant of special leave, namely, the absence of an express warning related to the sexual nature of the offence. (at p539)

8. Counsel for the applicant in addressing the jury said: "I would not argue with the proposition that if he", that is to say, the applicant, "was the one who dragged her into the room, then he was also guilty of rape". This was a reference to the evidence of the witness Harper. It thus seems to me abundantly clear that there was no suggestion at the trial that there was no evidence corroborative of the story told by the prosecutrix. In other words, it was not a case in which it was said that the jury had only the uncorroborated evidence of the prosecutrix. No request was made to the trial judge to give any direction about corroboration or the nature of corroborative evidence. Indeed, since it was conceded that the evidence of Harper was clearly corroborative of the fact that the applicant was the person who raped the prosecutrix there was no occasion for any such direction. The relevant issue was whether Harper was to be believed. Nor was the judge asked to give any specific caution based upon the fact that the case was one in which a woman complained of rape. Indeed, there was no ground of appeal when the applicant appealed to the Court of Criminal Appeal of New South Wales that the summing up was defective for want either of a reference to corroboration or of a caution as to accepting the uncorroborated word of a woman who complains of a sexual offence. But during and apparently late in the argument of the appeal before the Full Court, the question was raised as to the suggested deficiency of the summing up in these respects. But, of course, the lack of a request for a direction is not fatal to the success of the appeal, if in the circumstances of the case the judge was bound appropriately to warn the jury. (at p540)

9. The Court of Criminal Appeal, as I read the reasons given for dismissing the applicant's appeal, was of opinion that the summing up was defective in point of law in that there was no specific caution given to the jury as to the danger or risk of accepting the uncorroborated word of a woman in connexion with a sexual offence. But the Court, reviewing the whole of the evidence of the case, presumably was of opinion, though it was not expressed, that any jury properly instructed was certain to convict the applicant, for the Court applied the proviso to s. 6 of the Criminal Appeal Act of 1912 (N.S.W.) and dismissed the appeal (1974) 1 NSWLR 517 . (at p540)

10. It is now necessary to consider the submission of the applicant that the trial judge made a radical error of law in failing expressly to warn the jury to be cautious because of her sex and because of the sexual nature of the offence, in accepting the evidence of the prosecutrix alone as to the identification of the applicant as the man who had raped her. In order to consider whether such a direction was essential in this case I think it proper to restate exactly how the case stood. It was conceded by the applicant that the jury should accept the statement of the prosecutrix that she had been raped. It was further conceded that she was not untruthful in identifying the applicant as the man who had raped her, but it was said that she was mistaken, that is to say, that whilst she may have honestly believed that he was the man, her identification was not accurate and ought to be accepted. It was also conceded that there was evidence which, if believed, was corroborative of the identification of the applicant by the prosecutrix: namely, the evidence of Harper as to the applicant having assisted to drag the young woman into the bedroom where in fact she was raped. The judge had endorsed the forceful and emphatic statement of counsel for the applicant as to the need to exercise great caution on the issue involving identification. That, as I have said, in the circumstances of this case was, in my opinion, equivalent to warning the jury to exercise great caution in accepting the evidence of the prosecutrix as to the identity of the person who had raped her. (at p540)

11. In those circumstances, does the law require that there be a separate statement by the judge warning the jury of the danger of accepting the evidence of the young woman alone because of her sex and of the nature of the offence? It was submitted by counsel that to warn the jury against acting on the young woman's evidence alone on the identification of the applicant was not enough. The jury ought to have been told, so it was said, the reason for the warning, namely, that she was a woman and that the charge related to a sexual offence. (at p541)

12. As I shall point out later, the real requirement is that a jury should be warned as to the need for caution in accepting the word of the prosecutrix alone in connexion with a sexual offence. The word "alone" is not always used but is substituted by the word "uncorroborated". The warning is that there may be danger in accepting the word of the prosecutrix alone. Of course, if there is corroboration, strictly there is no occasion for such a warning, but if there is a dispute whether there is corroborative evidence, the judge will explain to the jury of what they need to be satisfied if evidence is to be accepted as corroborative. No doubt, and again in general where there is corroborative evidence in respect of which an issue of credibility arises, he should tell the jury that if they do not believe the evidence which is capable of being corroborative then the evidence of the prosecutrix will be uncorroborated. In that event a warning is necessary. But it seems to me that although such a direction should in general be given, where as here the issue for the jury does not involve any of those reasons which dictate the practice of giving such a warning, it will not be an error of law calling for a new trial that the judge has not told the jury that if they believe the evidence which is corroborative they should be cautious in accepting the word of the prosecutrix alone. I might add that quite apart from the presence of corroborative evidence, in the circumstances of this case, in my opinion, the judge was not required to give any further caution than was given by him. (at p541)

13. It was put to the Court by counsel for the applicant that the law required the jury to be told not merely that they should exercise caution in acting on the uncorroborated word of a prosecutrix in a sexual charge, but that they must seek corroborative evidence before so acting. In my opinion, this submission is clearly erroneous. As I have said, the matter in a sexual charge of which the jury should be warned is the danger or risk of acting upon the evidence of the woman alone as to the elements of the charge. In any case the caution is not to be given in any set form of words. It is enough that it is brought home to the jury that the question in issue relating to the sexual offence, e.g. in this instance the identification, should only be decided against the accused on the evidence of the prosecutrix alone after the exercise of great caution. The jury can properly be told that they ought to be wary of acting on the uncorroborated word of the prosecutrix: but they should not be told that they ought to seek or to have corroboration of what the prosecutrix says before they act upon her word. (at p541)

14. As there is a possibility that a jury may think that they need corroboration, in my opinion, the better direction is that the jury be told that they may act on the word of the woman alone but should exercise considerable caution before doing so, because of the ease with which the charge is made and the difficulty which may attend its rebuttal. In general it would be wise, in my opinion, to give a direction in that form. The formulation of Salmon L.J. in Reg. v. Henry; Reg. v. Manning (1968) 53 Cr App R 150, at pp 153-154 is in line with this view. (at p542)

15. We were referred to a large number of cases during the argument of this application. Most were but particular instances and need no comment. Graham (1910) 4 Cr App R 218 adopting Pickford J.'s direction is in conformity with the view I have expressed. Crocker (1922) 17 Cr App R 46 points out that there is no precise analogy between an accomplice and a prosecutrix in a sexual charge. "The objection in such a case as this", a sexual offence against a female, "is not on the grounds of complicity, but because the case is one of an oath against an oath" (1922) 17 Cr App R, at p 48 : and it was decided that corroboration of the evidence of the prosecutrix was not necessary. In this connexion, I am not prepared to tranship all that was said in Davies v. Director of Public Prosecutions (1954) AC 378 about the case of accomplices into cases about sexual offences. In Warren (1919) 14 Cr App R 4, at p 6 where a warning which ought to have been given was not given in terms, it was said: "Nevertheless, if from the conduct of the case this Court is of opinion that the jury were in fact warned or cautioned, it will not interfere". (at p542)

16. It is worthwhile contrasting the decision of this Court in Hargan v. The King [1919] HCA 45; (1919) 27 CLR 13 with the decision in Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 . No suggestion was made in the latter case, nor so far as I am aware has it been made in any other Australian case or in any decision by which this Court is bound, that where there is corroboration of a prosecutrix's story, i.e. evidence which is corroborative, it is necessary that the trial judge specifically warn the jury that, in the event that they disbelieve the witness giving the corroborative evidence, they should be careful in acting upon the evidence of the prosecutrix. But as I have indicated, in my opinion such a direction should be given if the case is otherwise one in which a warning should be given. I am not unmindful of the decisions of the Court of Criminal Appeal in England which tend to state the law more absolutely and less related to the precise circumstances of the case than I am prepared to accept. I prefer to follow the decision of this Court in Hicks v. The King, as indeed should the courts of Australia. It is to my mind nothing to the point that since that decision the rule of practice has received greater emphasis. (at p542)

17. We were referred to the decision of the Privy Council in James v. The Queen (1970) 55 Cr App R 299 . There are, of course, earlier decisions to the effect that to be relevantly corroborative the evidence must implicate the accused, e.g. R. v. Baskerville (1916) 2 KB 658 ; Reg. v. Trigg (1963) 1 WLR 305; (1963) 47 Cr App R 94 . This is not the place to discuss all the implications of the decision of their Lordships in James (1970) 55 Cr App R 299 . Suffice it to say that, in my opinion, it is not decisive of this case. Here, the only issue fought at the trial so far as the prosecutrix was concerned was simply whether she was honestly mistaken in identifying the accused as her assailant. That did not depend in this case on her sex or on the nature of the offence. It was conceded that she was truthful and thus her evidence was not to be distrusted either because of her sex or of the nature of the charge. However widely the reasons of their Lordships in James were expressed, they do not, in my opinion, embrace a case of this kind. None of the reasons which have prompted the rule, well expressed in its origins by Hale C.J. in Pleas of the Crown, vol. I, p. 634, are present. The Chief Justice's words ought to be remembered: "It" (rape) "is an accusation easily to be made and hard to be proved, and harder to be defended by the party concerned, though never so innocent". Lord Salmon's statement of the reason for the rule should also be borne in mind. His Lordship said that convicting on the evidence of the woman or girl alone ". . . is dangerous because human experience has shown that in these Courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute". (Reg. v. Henry; Reg. v. Manning (1968) 53 Cr App R 150, at p 153 .) The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play. (at p543)

18. In this case, in the first place the evidence of the prosecutrix was not uncorroborated. The issue whether or not she was honestly mistaken in her identification of the applicant did not involve any of those elements upon which the need for the caution arises. In any case, the jury were warned in substance to be cautious in accepting the evidence of the prosecutrix as to the identification of the applicant. In these circumstances, in my opinion, the trial judge was not in error in point of law in not making express reference to the sex of the prosecutrix and to the nature of the offence. (at p543)

19. But, none the less, it was not good practice not to have been more explicit in his warning as to the need for caution and in not explaining to the jury the situation which would arise if they did not believe the witness Harper. But no point has been raised in that connexion: and in any case, I would not regard the absence of such a direction in this case as a ground for the grant of special leave. In my opinion, in the circumstances of the case, the Court of Criminal Appeal were not required to allow the appeal. They could for the reasons I have given properly dismiss it. (at p544)

20. Before parting with the case, however, I would wish to add that, whilst I do not subscribe to the view that the proviso to s. 6 of the Criminal Appeal Act, 1912 can never be used where there has been an error of law in failing to give a warning in summing up on a charge of a sexual offence, it was, in my opinion, quite inappropriate to have applied the proviso in this case. I do not think it could properly be said in the circumstances of the case that no jury properly directed could have failed to have convicted the applicant. (at p544)

21. Special leave to appeal should be refused. (at p544)

McTIERNAN J. This is a motion for special leave to appeal from the order of the Court of Criminal Appeal dismissing the appeal of David John Kelleher against his conviction on an indictment consisting of counts, under the Crimes Act of 1900 (N.S.W.), for rape, assault and robbery and stealing respectively. The motion is brought pursuant to s. 35 (1) (b) of the Judiciary Act 1903-1969 (Cth). (at p544)

2. Section 6 (1) of the Criminal Appeal Act of 1912 (N.S.W.) provides that the Court of Criminal Appeal shall allow any appeal against conviction "if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". It is clear that there was no ground on which the Court ought to have set aside the verdict of the jury on the counts for assault and robbery or stealing. As regards the count for rape the only defence was that it was not the accused who raped the complainant. The defence did not contest that she was raped at a place and time which the Crown alleged. (at p544)

3. The essential facts are in a short compass. They appear from a passage in the statement made by the learned trial judge before pronouncing sentence. The passage reads:
"I do not wish to go over the events of this night. You, I know, have maintained that you were not one of those involved in these offences but I have to view the matter in the light of the jury's verdict when they decided you were. That means they have found that you in company with these other people invaded the home of this girl and her girlfriend. You there, with these others, indulged in a display of hooliganism which involved not only violence and some quite incredible behaviour but also in your case involved the stealing of this television set and the robbery of this ring from the girl. These two offences are not nearly so grave as the rape of this girl. She, without any encouragement on her part, her flat having been invaded by you and others, was dragged into a bedroom and raped.
There are two circumstances that could be mentioned in your favour, although they do not excuse it for one moment and indeed they are minor matters compared to the gravity of the offence itself, but they should be taken into account and considered as circumstances in deciding what is the proper sentence. Firstly, no physical injury at all was done to the girl. The rape was not accompanied in your case with any indignities on the girl, other than the rape itself of course, and the T.V. set, which the jury found was stolen, was returned." (at p545)

4. At first the only point on which the Court of Criminal Appeal was asked to set aside the verdict of the jury was in effect that the trial judge did not sufficiently caution them on the possibility that the complainant made a mistake in swearing that the accused was a man who raped her. This point failed in the Court of Criminal Appeal. I have read the evidence relevant to the issue of identification, and the directions in the summing up regarding identification. It seems to me to be a hopeless contention that the directions in the summing up were not adequate to guide the jury to a right conclusion. (at p545)

5. The only other point which was raised before the Court of Criminal Appeal was that the learned judge did not warn the jury that it would be dangerous to convict the accused of having raped the complainant on her evidence alone that the accused was a man who raped her. It seems from the judgment of the Court of Criminal Appeal that they thought, as regards the charge of rape, it would have been appropriate to give such a warning. But they considered that on the whole it would be right to apply the proviso in s. 6 (1). For this reason they dismissed the appeal. The complainant's evidence proved that she was raped by the accused and she was then similarly outraged by five others. No doubt they were some of the men to whom the learned judge referred in the passage quoted above. I take the view that the complainant's evidence, that the accused was one of her assailants in the bedroom to which she was dragged, was corroborated. Hers was not the only evidence that proved that she was dragged into the bedroom immediately preceding the rape of herself to which she testified. Evidence was given by a Mr Harper, who was not one of the gang who intruded upon the two girls in the flat. He gave evidence that the accused, assisted by two of the gang, dragged her off a lounge on which she was sitting in another room of the flat to the bedroom in which the crime occurred. In my opinion the jury could reasonably take the view that Mr Harper's evidence strengthened the complainant's evidence that the accused was one of those who raped her. In my opinion it is not a flaw invalidating the trial, that the learned judge did not warn the jury that it was dangerous to convict of the crime of rape on the uncorroborated evidence of the complainant, that the accused and the man who raped her are one and the same man. As I have said, in my opinion, there was corroboration and it would follow that the question of applying the proviso does not really arise. I do not think it fit in this case to give special leave to appeal, and I would therefore dismiss the motion. (at p546)

GIBBS J. This is an application for special leave to appeal from a decision of the Supreme Court of New South Wales, sitting as the Court of Criminal Appeal (1974) 1 NSWLR 517 , which affirmed the conviction of the applicant on charges that on 13th November 1971 at Kingsford he committed three offences, namely, that he raped one Leslie Carmel Watson, that he assaulted Leslie Carmel and robbed her of a gold finger ring and that he stole a television set the property of Lynda Louise Tomkins. The application was fully argued as though it were an appeal. (at p546)

2. The evidence at the trial established certain facts which were not in contest. Briefly stated, these were as follows. On 13th November 1971 Miss Watson shared a flat at Kingsford with another young woman, Miss Tomkins. At about nine o'clock in the evening of that day Miss Watson, accompanied by two young men, Raymond Lee and David Harper, returned to the flat to find it occupied by a mob of young people of both sexes, perhaps twenty to thirty in number, who had entered the flat uninvited and had refused to leave when Miss Tomkins had asked them to do so. Miss Watson and her companions entered the flat, but observing the behaviour of the intruders, most of whom appeared to be drunk, quickly decided to get out; however, they were prevented from doing so. Harper and Lee were assaulted and they and Miss Watson were made to wait in the lounge-room. Miss Tomkins was dragged away into a bedroom where she was repeatedly raped. While this was going on Miss Watson was searched for valuables and a ring was taken from her finger. Later most of the intruders left the flat but some remained. Miss Watson was then taken to a bedroom and raped by a number of men. During the course of the evening the flat was ransacked; clothes, food and other articles, including a television set on hire to Miss Tomkins, were removed. (at p546)

3. The applicant, in a statement to the police and in his statement from the dock, admitted that he had been one of the group which had entered the flat that night and that he had taken part in some of the things that went on, including a number of assaults, but denied that he had raped Miss Watson or had taken the ring or the television set. Counsel for the applicant in his address to the jury conceded that there was no doubt that the offences charged had been committed and said that the question that fell for the jury's decision was whether the offences had been committed by the applicant. The jury by their verdict found that they had. (at p547)

4. The present application is not based on the contention that a jury could not safely act on the evidence identifying the applicant as the offender but on the ground that the learned trial judge in his summing up failed to give proper directions to the jury. The first respect in which the summing up was said to be deficient was that the jury were not adequately instructed in relation to the question of identification, and it is convenient, before turning to consider the summing up, to refer to the evidence presented on the issue of identification. (at p547)

5. Miss Watson in her evidence clearly identified the applicant as the person who robbed her of her ring and later raped her. Her story, in more detail, was as follows. While she was waiting in the loungeroom the applicant searched her and took the ring from her finger. The applicant, with two other men, then searched Harper and Lee. Then, while Miss Tomkins was still in one of the bedrooms in the flat, the applicant came over and tried to drag Miss Watson off to another bedroom but some of the other persons present stopped him. Later, at about 11.30 p.m., when many of the party left, the applicant remained. He and two or three others then dragged Miss Watson into a bedroom where she was stripped and raped, first by the applicant and then in turn by five other men. Soon afterwards, the remainder of the group left the flat. Miss Watson did not see the applicant again until the morning of 29th February 1972 when she attended at the Central Court of Petty Sessions at Liverpool Street. She there saw the applicant in the corridor among a throng of other people. It seems that he had been charged with the rape of Miss Tomkins - he was not convicted - and was attending the preliminary inquiry. Later that day - after lunch - Miss Watson complained to the police that the applicant had been one of the men who had raped her. She agreed in cross-examination that at the Central Court Lee might have pointed out the applicant to her, as one of the persons who had been at the flat. Lee in his evidence agreed that he said to Miss Watson outside the court, "That is one of them over there isn't it?" (at p547)

6. Harper gave evidence which, if believed, corroborated Miss Watson's evidence as to the identity of her assailant. He said that he had no doubt that the applicant was one of the men who had dragged Miss Watson from the lounge. He said also that he thought that the applicant took her ring; however, he could not say so positively - indeed, in cross-examination, he said that he could not be definite whether the ring had been taken by a man or by a woman. He agreed that the police had shown him a photograph of the applicant and that when he saw it all that he recognized was that the applicant was one of the persons who had been at the flat; it was only later that he realized that the applicant had been one of those who had dragged away Miss Watson; he said that he thought this realization came to him when he saw the applicant going into the court at Liverpool Street. He further said (and Lee said also) that the man who tried to take Miss Watson from the room on the first occasion, but was restrained from doing so, was not the applicant, but a man with thick black curly hair - the applicant is fair; the man with the thick black curly hair was one of those who later took Miss Watson away to the bedroom. (at p548)

7. Lee's evidence was that he thought that the man who took the ring from Miss Watson's finger was one of the men who dragged her away but he was unable to identify that man. He said that he saw the applicant remove the television set from the flat. (at p548)

8. Evidence was given that the applicant was questioned by the police on 25th November 1971 and signed a record of the interview. No suggestion was made in cross-examination that the signed document was in any way an inaccurate record of what was said on that occasion or that the statement which it recorded had been procured involuntarily or improperly. The applicant in the course of the interview admitted that he had been in the flat on the evening of 13th November 1971. The interview then proceeded:
"It is further alleged by the two girls, Tomkins and Watson that they were both assaulted and repeatedly raped by a number of these youths that evening. Do you have any knowledge of this taking place? - No.
It is alleged by the girl Lynda Louise Tomkins that about 9 p.m. on the evening in question a number of men and some girls came to her flat and commenced to drink some beer they had brought with them. It is further alleged that when she asked these people to leave they refused. Do you have any knowledge of this? - No.
Would you care to tell us what occurred at Flat 2, 19 Meek Street, Kingsford whilst you were present? - I arrived with the rest, stayed for a short while, had a drink then left.

Do you know the time that you left the flat - About half past nine."

A little later the following was said:
"After the girl and the two boys arrived at the flat would you care to tell us what happened? - All right I'll tell you what happened. The two fellows tried to leave. One of them bumped me as they were going out. He swore and told me to get out of his way so I hit him and the other fellow then tried to strike me and I struck the other one as well.
How many times did you strike the first person? - Only once for each of them.

What did you hit them with? - My fist.
Where about did you strike each of them? - Both on the chin.
Did you at any time kick either of them whilst they were on the ground?

- No.
Did any other persons take part in the assault on these two persons? - Not that I know of.
Would you care to tell me what happened after this? - The dark-haired girl that had the flat walked over to me screaming and carrying on and tried to strike me so I hit her on the chin. After I hit things started to happen all at once some of the guys grabbed her and she was dragged to the room.

Which room? - One of the bedrooms.
What happened then? - She was undressed and repeatedly raped.
Would you care to explain that last remark in more detail? - Well I

wasn't in the room when she was first taken in there. I was in the bathroom then and I went in the room about five minutes after that. When I went in the bed was surrounded by a few fellows. One bloke was having intercourse with her and the others were standing around watching. One bloke had put his penis in her mouth. I just watched for a while then I went out of the room."
After some further questions in relation to Miss Tomkins the interview was directed to the rape of Miss Watson as follows:
"The other girl Leslie Watson who resides at the flat has alleged that she was robbed of a ring off her finger, dragged into the second bedroom and raped by a number of men. Have you anything to say about this matter? - Firstly I never touched her. As far as the rape goes the only thing that I know about it was that I walked into the bedroom and saw one fellow having intercourse with her and as far as I knew she was a willing party.
How long were you in the room? - Only walked in and out. Actually walked in, had a look around to see if there was anything worth taking and then I went out.
Where was the girl when you entered the room? - On the bed having intercourse.
Was she dressed or not? - No I think she was naked. She was having intercourse.
Whilst you say you were in the room how many men were in there with the girl? - Only the one that was having intercourse.

Did any other persons enter the room whilst you were in there? - No.
Do you have any knowledge of how many persons had intercourse with this

particular girl? - No if don't know how many."
Finally the applicant was asked if he knew what had happened to the property and he said that he thought he knew where it was and would try to get it back; he said that he did not want to say where it was "because the persons are not involved". Subsequently, on 2nd December 1971, he handed over to the police some of the property taken from the flat, including the television set the subject of the charge. He said to the police, "I have hunted around and I have got most of the girl's stuff back", but he refused to say where he had got it, adding that the people who had the property had nothing to do with the rape. Among the articles handed over was a ring, but because of a regrettable inattention to detail, either on the part of the police officers concerned or the Crown Prosecutor, it was not established in evidence whether or not the ring returned by the applicant was that which had been taken from Miss Watson's finger. However, although that omission may possibly have deprived the Crown of a piece of cogent evidence it did nothing to prejudice the applicant's case. (at p550)

9. The applicant made a statement from the dock in the course of which he admitted that he went to the flat on 13th November 1971. He said that he took part in hitting some people there, and that although he looked round for something to take when everyone else was ransacking the flat he did not in fact take anything. He said: "Although I did take part in some of the things that went on that night, I didn't rape Miss Watson and I didn't take her ring from her finger or drag her into her room and I didn't take the TV." (at p550)

10. It is apparent that the real, and indeed the only, question that fell for the decision of the jury at the trial was whether the applicant was the person who had committed the offences that formed the subject of three charges. The case for the Crown, that the applicant had committed rape and robbery, rested on the evidence of Miss Watson and Harper that they had visually identified him as the offender, and the case of stealing rested on the similar evidence of Lee. None of these witnesses had known or seen the applicant before the night on which the offences were committed. It is now well recognized that grave miscarriages of justice are liable to occur in criminal cases by reason of the fact that witnesses, however honest and careful, may make mistakes in identification, particularly where the person identified was unknown to the witness before the commission of the crime. Experience, including recent experience, has shown that such miscarriages can occur even when all the precautions provided by the law as safeguards against mistaken identification have been fully observed. It is therefore obviously necessary that at a trial where the evidence implicating the accused is evidence that he was identified by a witness or witnesses who were not previously acquainted with him, both judge and jury should be constantly alert to guard against the possibility that the evidence may be mistaken and an innocent man convicted. I would respectfully endorse the words of Lords Morris of Borth-y-Gest in Arthurs v. Attorney-General (Northern Ireland) (1970) 55 Cr App R 161, at p 168 :
"It is manifest that in cases where the vital issue is whether the identification of the accused person is certain and reliable the judge must direct the jury with great care. However careful is his general direction as to the onus of proof, the judge will feel it necessary to deal specifically with all the matters relating to identification."
In that case, which was one in which the witness who had identified the accused man knew him well, the House of Lords held that a summing up which dealt fairly and amply with the evidence of identification could not be held as a matter of law to be defective if it did not contain a general warning to the jury of the dangers of acting on evidence of visual identification, and their Lordships left it open whether it was necessary to lay down any rule for the guidance of courts in a case in which a witness had identified someone he did not previously know and whom he had had only a limited opportunity to observe. In Reg. v. Long (1973) 57 Cr App R 871 , the Court of Appeal (Criminal Division) held that in such a case a judge is not bound, as a matter of law, to give the jury a specific warning about the danger of convicting on such evidence. However, it seems to me that although it is perfectly true that the adequacy of a summing up can only be decided in the light of the circumstances of the particular case, and that where a warning is necessary no particular form of words is required, it is in practice generally desirable that where the case for the prosecution includes evidence of visual identification by a person previously unfamiliar with the accused, an appropriate warning should be given to the jury, since jurors may not appreciate as fully as a judge may do, or even at all, the serious risk that always exists that evidence of that kind may be mistaken. The failure to give an adequate warning where one is required may have the result that the conviction must be quashed - a course that has been taken in a number of recent cases in Australia: See Reg. v. Gaunt (1964) NSWR 864 ; Reg. v. Preston (1961) VR 761 ; Reg. v. Boardman (1969) VR 151 ; Reg. v. Maarroui (1970) 92 WN (NSW) 757 ; Reg. v. Goode (1970) SASR 69 ; Reg. v. Harris (1971) 1 SASR 447 . If a warning is necessary, the duty to give it will not be satisfactorily discharged by the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence. (at p551)

11. In the present case the learned trial judge not only told the jury again and again that the real question for them to decide was whether the applicant was the person who had committed the offences, but he also gave an express warning of the necessity to approach identification evidence with care. He referred to and reiterated the matters upon which counsel for the applicant had relied in criticism of the Crown case, including the facts that the applicant had previously been unknown to Miss Watson, that she identified him after an interval of time and only after he had been pointed out to her by Lee, and that she appeared to have been mistaken in some details of her evidence, particularly in saying that the applicant was the man who had attempted to drag her away on the first occasion but had been restrained from doing so. Counsel for the applicant submitted criticisms of the manner in which the trial judge warned the jury and of his treatment of the evidence, but on an application for special leave to appeal it is unnecessary to deal in detail with contentions of this kind if the conclusion is reached, as it should be in the present case, that regarded as a whole the summing up did give the jury the requisite guidance on the question of identification. One particular submission that may be mentioned, however, was that the judge should have reminded the jury that no identification parade was held, and informed them of the special possibility of error that exists when a witness whose previous knowledge of the accused man has not made her familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him: SEE Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170, at p 182 . The present, however, was not a case in which an accused man was first identified when he was pointed out as a person whom the police suspected of having committed the crimes in question. When the applicant was seen by Miss Watson outside the court he was standing in a group of people who were not there in connexion with the offences now in question and Lee, in pointing him out, merely referred to him as one of the persons who had been at the flat - as of course he had been. Miss Watson then recognized him as one of the men who had raped her. In these circumstances it would have been a completely meaningless formality to arrange for an identification parade and the additional possibility of error that arises when an identification is prompted by a suggestion that the person identified was the offender did not exist in the present case. The contention that the summing up so defectively dealt with the question of identification that the verdict ought not to be allowed to stand was rightly rejected by the Court of Criminal Appeal. (at p552)

12. The second main submission, which is to some extent bound up with the first, but which relates only to the charge of rape, is that the summing up was inadequate because the learned trial judge did not direct the jury as to the danger of acting upon the uncorroborated testimony of Miss Watson. In fact the learned trial judge gave no direction on the subject of corroboration; he was not asked to do so. (at p553)

13. It is now established that in cases of rape and other sexual offences in which corroboration is not required as a matter of law the trial judge should, as a matter of practice, warn the jury that it is dangerous to convict on the uncorroborated testimony of the person (whether male or female) on whom the offence was committed, although the members of the jury may act upon that testimony if, after scrutinizing it with great care, and paying heed to the warning, they are satisfied of its truth and accuracy. I have set out the general nature of the warning required, but of course there is no set form of words that must be used. This rule of practice is of comparatively recent origin; its first recognition in a reported decision appears to have been in R. v. Graham (1910) 4 Cr App R 218 . However, it was quickly accepted as peremptory, and by 1919 Isaacs J. was able to say that "the practice is so well established as to have, as was said of the analogous case of accomplices, 'almost the reverence of a rule of law' ": Hargan v. The King [1919] HCA 45; (1919) 27 CLR 13, at p 24 . The practice appears originally to have been formulated under the influence of the similar rules relating to the corroboration of the evidence of young children and of accomplices, but its real reason and justification would appear to be that which was suggested by Salmon L.J. (as he then was) in Reg. v. Henry; Reg. v. Manning (1968) 53 Cr App R 150, at p 153 - that it is dangerous to convict on the evidence of the complainant in a sexual case because experience shows that in such cases people do sometimes tell "an entirely false story which is very easy to fabricate, but extremely difficult to refute". If this is the real reason for the practice, it would not, in the absence of authority, be immediately obvious that it is necessary to direct the jury in this way where the only issue at the trial is as to the identity of the offender. Nevertheless, in the case of accomplices, it is very well settled that "evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime", i.e., evidence "not merely that the crime has been committed, but that it was committed by the accused": R. v. Baskerville (1916) 2 KB 658, at p 667 . The question whether in sexual cases corroboration must be in a material particular implicating the accused was at first regarded as doubtful: R. v. Myro Smith (1919) 14 Cr App R 74, at p 81 ; Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36, at p 49 . Since that time, however, it has been consistently held in the Court of Criminal Appeal in England that a warning of the danger of acting on the uncorroborated evidence of the complainant must be given in cases where identity is the sole issue: Reg. v. Sawyer (1959) 43 Cr App R 187 ; Reg. v. Clynes (1960) 44 Cr App R 158 ; Reg. v. Trigg (1963) 1 WLR 305; (1963) 47 Cr App R 94 ; Reg. v. O'Reilly (1967) 2 QB 722 ; Reg. v. Midwinter (1971) 55 Cr App R 523 . These decisions are supported by the authority of the Judicial Committee; in James v. The Queen (1970) 55 Cr App R 299 , Viscount Dilhorne, delivering the judgment of the Judicial Committee, said (1970) 55 Cr App R, at p 302 : "In sexual cases, in view of the possibility of error in identification by the complainant, corroborative evidence confirming in a material particular her evidence that the accused was the guilty man is just as important as such evidence confirming that intercourse took place without her consent." It must now be taken as settled that it is the duty of a trial judge to give an appropriate direction on the subject of corroboration on a charge of rape, although there is no dispute that the women was raped, and the only issue is whether the accused committed the crime. This direction will still be necessary even if a proper warning has been given to the jury as to the danger of convicting upon evidence of visual identification, because a warning of the latter kind will not be enough to inform a jury of the danger of convicting on the uncorroborated evidence of the complainant in a sexual case. Further, in my opinion, the fact that it was not suggested at the trial that Miss Watson was untruthful, but that she was mistaken, did not render the direction unnecessary. Even if the purpose of the direction as to corroboration is to put the jury on guard against testimony fabricated by a complainant, the mere fact that if is not expressly suggested that a complainant is lying does not render this rule of practice inapplicable; an accused person may say in effect, "The complainant's story is untrue, and since I do not know whether the untruth results from mistake or from malice I will not suggest the latter". (at p554)

14. The question, however, arises whether the warning must be given when there is evidence capable of corroborating the complainant. In Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 , this Court held that no warning was necessary in a case in which the evidence of the complainant was corroborated, but the question was not fully discussed; the Court mainly directed its attention to the question whether the complainant's evidence was corroborated, and once that question was answered in the affirmative it was assumed that a warning was unnecessary (1920) 28 CLR, at pp 41 and 47 . Hicks v. The King was decided when the rule of practice now under discussion had only recently become recognized, and although the decision in that case may well have been in accord with opinions held in England at that time, it is opposed to later authorities. In Davies v. Director of Public Prosecutions (1954) AC 378 , it was held by the House of Lords that a warning must be given to the jury that it is dangerous to convict upon the evidence of an accomplice unless it is corroborated, even if in fact there is ample corroboration of the evidence of the accomplice, and that if the judge fails to give such a warning the conviction will be quashed unless the appellate court can apply the proviso to s. 4 (1) of the Criminal Appeal Act, 1907 (U.K.). The Court of Criminal Appeal in England has applied the same rule to sexual cases, and has held that a failure to give a warning will be fatal to a conviction (except in those rare cases to which the proviso can be applied) even if there is evidence which the jury could accept as corroborative: Reg. v. Clynes (1960) 44 Cr App R 158 ; Reg. v. Trigg (1964) 1 WLR 305; (1963) 47 Cr App R 94 ; Reg. v. O'Reilly (1967) 2 QB 722 . In Australia and in New Zealand, it has often been held, in reliance on the English authorities, that it is necessary to give an appropriate warning as to corroboration in sexual cases where there is evidence capable of amounting to corroboration, although different opinions have been expressed as to how far the judge should go in explaining the position to the jury: see, for example, R. v. Baynon and Pitama (1960) NZLR 1012 ; Reg. v. Adams and Ross (1965) Qd R 255 ; Reg. v. Jansen (1970) SASR 531 . In my opinion the mere presence of evidence which the jury might accept and treat as corroborative does not make a proper warning any the less necessary. The jury may regard the independent evidence as untruthful or inaccurate, or of little cogency; if the members of the jury have to decide whether the independent evidence gives rise to an inference that the accused committed the offence - as, for instance, when the accused has made false statements - they may decline to draw the necessary inference; for a judge to decide that the evidence capable of corroborating the complainant does amount to corroboration, and that therefore the jury need no guidance as to the manner in which uncorroborated testimony should be approached, would be to usurp the jury's function. I can see no reason in principle why the fact that there is ample evidence capable of amounting to corroboration should render it unnecessary for a judge trying a sexual offence to warn the jury of the danger of acting upon the complainant's evidence unless it is corroborated, and I can see no reason why the propositions laid down in Davies v. Director of Public Prosecutions (1954) AC 378 should be regarded as inapplicable to the corroboration of the complainant in sexual cases. In my opinion it was necessary for the learned trial judge to give a warning in the present case, notwithstanding that there was evidence capable of amounting to corroboration, and notwithstanding that the question was not raised on behalf of the defence. The Court of Criminal Appeal regarded the judge's direction as defective, and they were right in doing so. (at p556)

15. The Court of Criminal Appeal held that in the circumstances of the case no substantial miscarriage of justice had actually occurred, and accordingly dismissed the appeal in reliance on the powers given by the proviso to s. 6 of the Criminal Appeal Act of 1912 (N.S.W.). In Australia, where there has been a failure to give the required warning as to corroboration, but where in fact there has been evidence capable of being regarded as corroborative, some courts of criminal appeal have been more ready to hold that there has been no substantial miscarriage of justice, and to sustain the conviction, than the courts have been in England in similar cases. However, in my opinion, it is not necessary to decide whether the present case was a proper one for the application of the proviso. This is an application for special leave. "On such an application it is not sufficient to show that this Court might possibly have come to a different conclusion from that to which the Court from which leave to appeal is sought actually came"; before special leave should be granted it must be shown that there were some special circumstances in the case, and the fact that there was an inadequacy in the summing up will not necessarily be sufficient: Forbes v. The King (1936) 42 ALR 454, at pp 456-457 , and see Tripodi v. The Queen (1961) 104 CLR 1 . (at p556)

16. The circumstances of the present case do not appear to me to make it a proper case in which to grant special leave to appeal. During the course of the evening Miss Watson had many opportunities to observe the applicant, and her identification of him, when she next saw him, was prompt and positive. The applicant admits, not only that he was at the scene of the crimes, but that he played an active part in some of the lawless activities of the gang at about the time the offences occurred. It would have been open to the jury, had their attention been directed to the matter, to regard the applicant's statement to the police, the making of which was not challenged, as strongly confirmatory of the complainant's evidence that he had raped her. At first he prevaricated, suggesting that he had left the flat early and had taken no part in what had later occurred; then, although admitting that Miss Tomkins had been repeatedly raped, he said that he saw Miss Watson having sexual intercourse but, as far as he knew, voluntarily. The jury may well have regarded it as quite incredible that the applicant could have believed that Miss Watson, whose flat had been invaded by a mob of young ruffians, who had tried to escape but had been prevented from doing so, whose male friends had been assaulted and whose female companion had been raped, and whose flat was ransacked, would thereafter have voluntarily engaged in sexual intercourse with one of the mob who had invaded her flat. Further, it was not contested that Miss Watson had been dragged from the lounge-room and raped by a number of men, and the jury may well have thought that it was not possible that the applicant could have been unaware of what had occurred. It was open to the jury to conclude that the applicant denied any knowledge of the rape of Miss Watson because of his complicity in it. Apart from the evidence of Harper, there was therefore evidence of a particularly compelling character to support the evidence of Miss Watson identifying the applicant as one of the men who had raped her. The whole case, including the criticisms made of the evidence of identification, was presented fairly to the jury in the summing up, the only deficiency being the omission to give the requisite warning as to corroboration, and that deficiency was not sought to be rectified at the trial. In all these circumstances I do not consider that this case is of such a special character as to justify this Court in granting special leave to appeal. (at p557)

17. I would refuse the application. (at p557)

MASON J. The facts and the questions which arise for decision have been fully stated by other members of the Court. (at p557)

2. The submission that the Court of Criminal Appeal was incorrect in holding that the trial judge adequately directed the jury on the issue of identification should be rejected. In my view it has not been shown that the Court of Criminal Appeal erred in the principles which it applied or in the conclusion which it reached. (at p557)

3. The second ground of the application for special leave to appeal related to the application of the proviso to s. 6 of the Criminal Appeal Act of 1912 (N.S.W.). I do not find it necessary to consider this question as, unlike the Court of Criminal Appeal, it is my view that the absence of a direction as to the danger of convicting on the uncorroborated evidence of the complainant did not in the circumstances of this case give rise to an error of law or a miscarriage of justice within the meaning of s. 6 of the Act. (at p557)

4. As Jacobs J. has pointed out, it was held by this Court in Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 , before the introduction of the Criminal Appeal Act in Victoria, that a conviction secured on the evidence of an accomplice should not be quashed if there was substantial corroboration of his evidence, although the trial judge had not warned the jury of the danger of convicting on the uncorroborated evidence of the accomplice. This view of the law was in conformity with what had been said by the English Court of Criminal Appeal in R. v. Tate (1908) 2 KB, 680 at p 683 . It was subsequently applied after the introduction of the Criminal Appeal Act of 1912 (N.S.W.) by this Court in relation to a conviction for a sexual offence against a girl obtained on the evidence of the complainant (Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 ). In that case the Court refused to quash the conviction although the judge had not given the warning, there being ample corroborating evidence. Since then this Court has not had occasion to consider the question. (at p558)

5. However, in the intervening span of time a different view has prevailed in England. In R. v. Baskerville (1916) 2 KB 658 , a case concerning the evidence of two accomplices, the Court of Criminal Appeal said, speaking of the duty to warn the jury (1916) 2 KB, at p 663 :
"This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal Act came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed: R. v. Tate (1908) 2 KB 680 ."
As Lord Simonds L.C. was later to remark in Davies v. Director of Public Prosecutions (1954) AC 378, at pp 397-398 , this observation was not only unnecessary to the decision but was not supported by R. v. Tate (1908) 2 KB 680 , the authority cited for it. In fact the Court of Criminal Appeal there said that had there been substantial corroborative evidence the conviction would not have been set aside for want of a warning. (at p558)

6. The view expressed in R. v. Baskerville (1916) 2 KB 658 was followed in R. v. Davies (1930) 22 Cr App R 33, at p 35 , and R. v. Lewis (1937) 26 Cr App R 110 , and was accepted by the House of Lords in Davies' Case (1954) AC 378 , which was also a case relating to the evidence of an accomplice. (at p558)

7. The House of Lords there considered the rival versions of the rule as to warning and concluded that the version which was described as the "peremptory" view should be adopted. But it is important to note that this conclusion was reached because, as Lord Simonds said (1954) AC, at p 399 :
". . . having indicated the rival versions of the rule as to warning propounded in Tate's (1908) 2 KB 680 and Moore's Case (1942) 28 Cr App R 111 on the one hand, and the cases of Baskerville (1916) 2 KB 658 , Davies (1930) 22 Cr App R 33 and Lewis (1937) 26 Cr App R 110 on the other, I have formed the opinion that whichever might be preferred if the matter were res integra, as things are the latter cases, laying down the stricter rule, have the preponderant weight of authority on their side, and should be adopted. . ."
The rejection by the House of Lords of the "discriminatory" version did not therefore reflect an examination of the comparative merits of the two versions of the rule. Nor did it involve a consideration of the decisions in this Court. (at p559)

8. The stream of English authority in relation to the quashing of convictions for sexual offences where no warning has been given has pursued a similar course. It has been accepted by the Court of Criminal Appeal and the Court of Appeal that in the absence of such a warning the conviction will be set aside, even where there is ample evidence corroborating that of the complainant - Reg. v. Trigg (1963) I WLR 305; (1963) 47 Cr App R 94 ; Reg. v. O'Reilly (1967) 2 QB 722, at p 727 ; Reg. v. Midwinter (1971) 55 Cr App R 523 . (at p559)

9. It is apparent, therefore, that there has been a uniform development in England of the principles on which convictions will be set aside for want of a caution given to the jury respecting the evidence of accomplices and complainants in the case of sexual offences. That the development in the two classes of case has been uniform is not surprising. In each instance the emphasis given by the law to the desirability of corroborative evidence and the setting aside of the conviction secured in the absence of an appropriate direction on that point stems from the suspect character of the evidence in question. As Salmon L.J. said in Reg. v. Henry; Reg. v. Manning (1968) 53 Cr App R 150, at p 153 : ". . . human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute." Likewise, knowledge of human affairs tells us that for various reasons the evidence of an accomplice implicating an accused person is to be treated with caution; it is susceptible to fabrication and extremely difficult to refute. (at p559)

10. Although there are strong reasons to support uniformity of approach in the directions to be given to juries respecting corroboration in the two classes of case, the important question which arises is whether, in the light of the movement in the law which has taken place in England with regard to the setting aside of convictions based on the evidence of accomplices and complainants in sexual cases, where no warning has been given to the jury, this Court should decline to follow its earlier decision in Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 . (at p559)

11. It is acknowledged that the customary rule that the jury should be warned was in relation to the evidence of accomplices and the victims of sexual offences not regarded as a rule of law before the introduction of the Criminal Appeal Acts, although as early as 1861 it was referred to as "a practice which deserves all the reverence of law" (Reg. v. Boyes [1861] EngR 626; (1861) B & S 311 (121 ER 730) ; Davies' Case (1954) AC, at p 396 ). It is not suggested that the Criminal Appeal Act of 1907 converted the rule into a rule of law; yet since the passing of that Act the rule has become more absolute in its application and has acquired "the force of law" (Davies' Case (1954) AC, at p 399 ). (at p560)

12. Here we are concerned not so much with the status of the rule as with its content. Its sole raison d'etre is to ensure that the jury is alive to the danger of convicting on the uncorroborated evidence of a class of witnesses whose testimony may, for reasons already indicated, be untruthful. There is therefore no reason to insist upon the giving of the warning when there is no likelihood that the jury will convict upon uncorroborated evidence of that kind, that is, where the corroborative evidence is "indisputable", as Salmon L.J. said in Reg. v. O'Reilly (1967) 2 QB, at p 727 , "substantial", to use the language of Barton J. IN Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619, at p 656 or "ample", as Knox C.J., Gavan Duffy and Starke JJ. said in Hicks v. The King (1920) 28 CLR, at p 40 . Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 was decided after the introduction of the Criminal Appeal Act of 1912; it accorded with what had been said by this Court in Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 and it was based on a correct view of the preceding English authorities. We should therefore continue to follow Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 in preference to the course of decisions in England. (at p560)

13. In so saying I should confine this expression of opinion to the rule in its application to the evidence of complainants in cases of sexual offences. It may be possible to accept the dictum of Lord Simonds L.C. in Davies' Case (1954) AC, at pp 397-398 and distinguish the case of accomplices' evidence f rom the evidence of a complainant in a sexual case, although when regard is had to the reason which underlies the need for corroboration in each class of case and to their parallel development to this time, such a distinction, if made, would need to be based on a perception of greater frailty in the evidence of accomplices than that of complainants in sexual cases. (at p560)

14. Although I have said that the trial judge is not bound to warn the jury of the danger of convicting on the uncorroborated evidence of the complainant in a sexual case, he should observe the practice of giving such a direction, even in cases when the evidence is substantial. He cannot anticipate with certainty that an appellate court will necessarily agree with his evaluation of the corroborating evidence. As to the form of direction which should be given I agree with what the Chief Justice has written. (at p560)

15. A related problem arises out of the applications of s. 6 of the Criminal Appeal Act. Where an applicant seeks to set aside a conviction on the ground that the rule as to the giving of a warning has not been observed there is the question whether non-compliance with the rule is to be regarded as an error of law or as working a miscarriage of justice. In Hargan v. The King [1919] HCA 45; (1919) 27 CLR 13 , where no warning was given in a charge relating to a sexual offence and the conviction was set aside, the members of the Court regarded the case as one of miscarriage of justice (1919) 27 CLR, at p 21, 23, 25 , perhaps because the appeal was presented on that footing. (at p561)

16. However, in Davies' Case (1954) AC 378 non-observance of the rule was viewed as an error of law, a consequence which seems to be inevitable once the rule is acknowledged to have "the force of law". Such an error of law requires that the conviction be set aside unless the appellate court considers that no substantial miscarriage has actually occurred. This is not to deny that in an appropriate case an applicant may seek to rely on the absence of a warning, in conjunction with other circumstances at the trial, as constituting a miscarriage; in this event it is for the applicant to show that there has been a miscarriage, a burden which does not confront him if he can establish the existence of an error of law arising from a failure to observe the rule as to warning as I conceive it to be. (at p561)

17. The applicant in the present case has failed, in my judgment, to show that the absence of a warning was an error of law or that it gave rise to a miscarriage of justice. The corroborative evidence was to my mind substantial. It has been reviewed by other members of the Court. (at p561)

18. I have been in some doubt as to the correct method of disposition of this application. Having regard to the course which argument has taken and the questions which have arisen, there is much to be said for the view that special leave should be granted and that the appeal should be dismissed. However, had the application, been heard initially as a special leave application; a course which I now consider to be the correct course, the application, involving as it did an attack on the application of the proviso, would in my view have been refused, not because of the decision of the Court of Criminal Appeal on that issue was necessarily correct, but because the issue was not one warranting the grant of special leave. (at p561)

19. I would therefore refuse the application for special leave. (at p561)

JACOBS J. This is an application for special leave to appeal from an order of the Court of Criminal Appeal (N.S.W.) dismissing an appeal against a conviction of the applicant on a charge of rape. The applicant was convicted of raping a young woman, Leslie Watson, at Kingsford near Sydney on 13th November 1971. He was also convicted of assaulting her and robbing her of a gold ring and of stealing a television set the property of another young women, Linda Tomkins. On the conviction of rape he was sentenced to ten years' penal servitude. Though it is not altogether clear, it would appear that the only conviction which it was sought to have set aside was the conviction on the charge of rape. Certainly on this application for special leave the only submissions which have been made have related to the rape conviction and I propose to limit my consideration to that conviction. (at p562)

2. In the early evening of 13th November 1971, about 7 o'clock, a group of leather jacketed young men and women on motor bikes came to the building in which Miss Watson and Miss Tomkins shared a flat. They entered this flat uninvited. At that time Miss Tomkins and a male friend of her boy friend were in the flat. Between twenty and thirty intruders entered, among them the applicant. Some while later, about 9 o'clock, Miss Watson returned home accompanied by two male friends, Mr Lee and Mr Harper. While the intruders were in the flat they were drinking, fighting and throwing food about. (at p562)

3. Shortly after her arrival Miss Watson went to leave accompanied by Lee and Harper, but they were prevented from leaving and the two men were assaulted by the applicant, as he admitted. Some time later Miss Tomkins was hit by the applicant and then some of the other intruders, as the applicant related to the police, grabbed her dragged her, to one of the bedrooms, and repeatedly raped her and most indecently assaulted her. The applicant entered this bedroom and in his words "watched for a while". (at p562)

4. While this was happening Miss Watson and Lee and Harper were searched for money and valuables. Miss Watson deposed that the applicant then took the ring from her finger. She and the two men remained in the lounge and later about three-quarters of the intruders left. By then it was about half past eleven. Then Miss Watson was dragged from the lounge room into the other of the two bedrooms by a number of those left, among them according to her evidence the applicant. There, she testified, she was raped by the applicant. Five others of the men then raped her. Some time afterwards the last of the intruders left. (at p562)

5. Lee gave evidence that shortly before the last of them left he saw the applicant taking a television set out of the flat. Lee also gave evidence that the same man as took the ring off Miss Watson's finger later dragged her away from the lounge room but he could not say who this was. Harper said in his evidence that he thought it was the same man who took the ring from Miss Watson as dragged her from the lounge room and he identified the applicant as the man who dragged her away. (at p562)

6. The applicant was interviewed by the police on 25th November. At first he denied any knowledge that Miss Watson and Miss Tomkins had been assaulted and raped on the night of 13th though he admitted that he had been there. He stated that he had only been there for a short time and had then left about 9.30 p.m. Later he admitted that he had hit both Lee and Harper, that he had hit Miss Tomkins, that he had seen Miss Tomkins dragged away, that he had been present for part of the time when she was being raped and subjected to gross indecent assault and that he saw Miss Watson in a bedroom with a man having intercourse with her. He said he thought that she was a willing party and he denied raping her or taking the ring from her finger or taking the television set from the flat. He offered to try to recover the property stolen and later on 2nd December he brought the television set and a ring, not clearly identified in the evidence as Miss Watson's ring, to the police. (at p563)

7. The applicant was not identified by Miss Watson as the person who had taken the ring from her and who had dragged her to the bedroom and raped her until she saw him at the Central Court of Petty Sessions on 29th February 1972 at about 10.15 a.m. After lunch time she told the police and the applicant was charged. On that morning Lee identified him as the man who took the television set and Harper identified him as the man who dragged Miss Watson from the lounge room. (at p563)

8. At the trial there was no issue raised whether Miss Watson had been raped. The only issue was one of identification of the applicant as the man who raped her. There was considerable cross-examination on this issue and after the summing up further directions were sought but refused. This was the ground of the appeal to the Court of Criminal Appeal, but by leave further grounds on the absence of any warning on corroboration were allowed to be argued. I shall return to them presently. (at p563)

9. On this application it has been submitted that the Court of Criminal Appeal was in error in its conclusion that the directions of the trial judge on identification were adequate and sufficient. I do not propose to canvass in detail either the evidence on identification or the adequacy of the directions in the light of particular points in the evidence. No point emerges which would justify this Court granting special leave to appeal. The Court of Criminal Appeal applied the correct principles on the necessity for warning on the difficulties surrounding identification evidence and related those principles to the warnings actually given by the trial judge in the light of the evidence. I can see no error in principle or manifest error in application of principle. (at p563)

10. Upon the question of corroboration more needs to be said. There was no direction given on the danger of convicting on the uncorroborated evidence of the victim of a sexual assault and no such direction was asked for by the applicant's counsel at the trial. The Court of Criminal Appeal determined that the direction ought to have been given and apparently further determined that the absence of the direction constituted a ground for quashing the conviction. However, it determined that the case was one where the proviso to s. 6 of the Criminal Appeal Act (N.S.W.) could properly be applied and it dismissed the appeal, being satisfied that no substantial miscarriage of justice had occurred. On behalf of the applicant it has been submitted that the Court of Criminal Appeal was in error in applying the proviso in all the circumstances of the present case; and it has been submitted that this is not a case where it could be said that the evidence, particularly the evidence of identification, was such that if the jury had been properly directed it would have "inevitably" come to the same conclusion. This test, expressed by Lord Sankey in Woolmington v. Director of Public Prosecutions [1935] UKHL 1; [1935] UKHL 1; (1935) AC 462, at pp 482-483 as it was explained by Fullagar J. in Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493, at p 515 , is a very high one and it must always be borne in mind that it is for the Crown to establish the proposition. (at p564)

11. However the starting point of a consideration of the ground relating to the absence of the warning on corroboration must be to determine whether from the absence of the direction it necessarily follows that the appeal must be allowed unless the proviso is applied. That the need for a warning applies in sexual cases to evidence of identification has been recently affirmed by the Privy Council in James v. The Queen (1970) 55 Cr App R 299 ; cf. Hicks v. The King (1920) 28 CLR at 49 , per Isaacs and Rich JJ. Counsel for the applicant could refer to recent English authority which would appear to establish the proposition that a direction on corroboration must be given in every case even though there is some or even ample corroborative evidence called, and that otherwise the conviction will be quashed unless the proviso can be applied. In respect of accomplices there is the strong dictum of Lord Simonds in Davies v. Director of Public Prosecutions (1954) AC 378, at p 399 . In respect of sexual cases the English Court of Criminal Appeal in Reg. v. Trigg (1963) 1 WLR 305; (1963) 47 Cr App R 94 applied the rule as it had been stated in Davies v. Director of Public Prosecutions (1954) AC 378 . Even though there was corroboration of the rape of the girl by the accused it was held that the absence of a warning as to corroboration was fatal and, moreover, it was held that the proviso (to s. 4 of the English Criminal Appeal Act) could not be applied in that case and, indeed, should not be applied in any case except in special circumstances. (at p564)

12. The difficulties and differences of opinion which have arisen upon the approach which should be made by an appeal court when no warning has been given have not escaped attention in decisions of high authority, and it would have saved much time on the hearing of this application if the Court's attention had been drawn to the examination by this Court in Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 of the position before the passing of the Criminal Appeal Acts and of the cases which followed the passing of the English Act in 1907 as well as to the historical survey of developments in England up to 1954 by Lord Simonds in Davies v. Director of Public Prosecutions (1954) AC 378 . (at p565)

13. Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 was decided in this Court in 1911 when the English Criminal Appeal Act, 1907 had been in force for some years but had not been introduced in Victoria whence the appeal came. It was a case on accomplices. Griffith C.J. referred to "the old rule" in England that, although the trial judge ought to give the direction, it was a matter of practice and not of law, but added that in more modern times it was considered in England to be a rule of practice now so generally followed as to have almost the force of law, and that it was then recognized as a rule failure to comply with which must be followed by the quashing of the conviction (1911) 13 CLR, at p 641 . He referred to R. v. Tate (1908) 2 KB 680 and he added (1911) 13 CLR, at p 642 : "Whether that is to be regarded as a new rule established under the Criminal Appeal Act, or whether it is to be regarded merely as a more modern statement of the old law introduced into Australia, is an extremely interesting question which it may some day be necessary to decide formally." Barton J. referred to R. v. Tate and R. v. Wilson (1911) 6 Cr App R 125 then very recently decided and enunciated four propositions which he thought were warranted by the English authorities (1911) 13 CLR, at pp 655-656 . The first three are immediately relevant:
"(1) That where the evidence of the accomplice is not substantially corroborated, the duty of the Judge to warn the jury against acting upon it has not yet become a positive rule of law, although it is a matter of settled practice; (2) that in England, if there is an absence of substantial corroboration, and the Judge has failed to warn the jury according to practice, the Court will treat the conviction as a 'miscarriage of justice' within the meaning of the Criminal Appeal Act, s. 4 (1), and set it aside; (3) that in England or in Victoria, if substantial corroboration exists, the Court will not interfere with the conviction, though the Judge has departed from the ordinary practice by omitting to warn the jury . . ."
O'Connor J. concluded that the absence of the direction was not an error of law, and that the English development stemmed from the new power of the court to set aside a conviction for miscarriage of justice (1911) 13 CLR, at pp 671-673 .

14. On the state of the English authorities at that time it was the clear view of the Court in Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 that if substantial corroboration exists the appeal court will not interfere with the conviction. This was the view applied in Hargan v. The King [1919] HCA 45; (1919) 27 CLR 13 and in Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 on appeals from the Court of Criminal Appeal (N.S.W.) which had been constituted in 1912 under legislation similar to the English legislation. Both of these were on convictions for sexual offences. In the meantime in England R. v. Baskerville (1916) 2 KB 658 had been decided. It was a case on accomplices' evidence and was discussed and applied in Davies v. Director of Public Prosecutions (1954) AC 378, at p 396 . The House of Lords in respect of accomplices did not adopt what it described as the "discretionary" view expressed in R. v. Tate (1908) 2 KB 680 and in another decision, R. v. Moore (1942) 28 Cr App R 111 , whereby, "the existence of sufficient corroboration in fact was regarded as an adequate substitute for compliance with the rule". It adopted what Lord Simonds described (1954) AC, at p 396 , as the "peremptory" view which he found to have been applied in R. v. Baskerville (1916) 2 KB 658 and in R. v. Davies (1930) 22 Cr App R 33 and R. v. Lewis (1937) 26 Cr App R 110 . He then expressed the law as follows (1954) AC, at p 399 :
"Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellate court can apply the proviso to s. 4 (1) of the Criminal Appeal Act, 1907." (at p566)

15. This rule has since been applied in England in the case of accomplices and of sexual offences. Moreover, there has been a growing reluctance to apply the proviso to which I have earlier referred. See Reg. v. Trigg (1963) WLR, 305; (1963) 47 Cr App R 94 . In a way it is illogical that the proviso can ever be applied. If the rule were actually a rule of law then failure to warn as to corroboration would be an error of law and the conviction would perforce be quashed unless the proviso (in New South Wales to s. 6) could properly be applied. But as the rule is not a rule of law but is one of practice so strong that failure to observe it is a miscarriage of justice even where there is some, perhaps ample, corroboration then it seems strange at first sight that it should be possible to proceed from there and say on an appeal that despite the miscarriage of justice there has been no substantial miscarriage of justice. The miscarriage of justice arising from the failure to warn arises from the fact that if the warning had been given the jury might have concluded that the evidence of the accomplice or the victim of sexual assault stood uncorroborated, that is to say, might have found the whole of the corroborative evidence unacceptable. How then in any case could it be said that, with that possibility, no substantial miscarriage of justice had occurred when without the requisite warning the jury might in fact have convicted without the evidence of the accomplice or the sexual victim being corroborated? The answer must lie in pragmatic rather than logical considerations. The rule requiring the direction had developed after the passing of the Criminal Appeal Act to a degree at which the appeal courts were insistent that the warning should be given in every case, whether there was present in the case corroborative evidence or not. The rule could not historically be stated to be one failure to observe which was an error of law and therefore it had to be subsumed under the provision of the Act conferring the new power to quash in case of miscarriage of justice. If the existence of corroborative evidence which may have been believed could lead to the conclusion that there was no miscarriage of justice and therefore no ground for quashing the conviction the purpose of ensuring that the warning was given could not be achieved. A trial judge in each case would need to make up his own mind whether the warning was or was not appropriate, depending no doubt on his assessment of the strength of the corroboration. Therefore the definitive rule was enunciated applicable in all cases. But that left the case where the corroborative evidence was so strong that a different result on a new trial or indeed on the first trial if the jury had been properly directed could not reasonably be regarded as a probability or a possibility. Clearly the Court of Appeal in England desired to retain the right to apply the proviso in such a case and has done so. See, e.g., Reg. v. Henry (1968) 53 Cr App R 150, at p 155 where the corroboration was described as "formidable". The English developments would appear to achieve the practical result sought, namely, the insistence that in every case appropriate warnings should be given by the trial judge with power in the appeal court in an appropriate case to allow the conviction to stand despite an inadvertent omission or an inadequate direction at the trial. (at p567)

16. My purpose in this survey has been to show that there has been a distinct development in the English cases on the need for warning on corroboration since Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 in relation to accomplices and Hargan v.The King [1919] HCA 45; (1919) 27 CLR 13 and Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 in relation to sexual offences were decided by this Court. Later decisions of this Court deal with aspects of corrobarative evidence and with the form of the warning but not with the particular question here being considered. See, e.g., Forbes v. The King (1936) ALR 454 ; Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1 . The question is whether the Court should adhere to the enunciation in Peacock v. The King (1911) 13 CLR 619 and Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 despite the fact that the reasoning was based on English decisions which could not now be relied on or whether the English developments should be adopted in whole or in part. (at p568)

17. Leaving aside the case of the evidence on oath or otherwise of children of tender years I cannot see that in sexual cases the approach of the Court in Hicks v. The King read in the light of Hargan v. The King [1919] HCA 45; (1919) 27 CLR 13 is no longer appropriate. I can appreciate that the strengthening of the rules relating to warning on the dangers of convicting on the uncorroborated evidence of an accomplice was a salutary development, but I do not see that the same rules, stricter than those previously thought to apply, should extend to corroboration in sexual cases. Where there is a development of the law in one field it does not necessarily carry over into a similar field. There is not a single branch of the law on the need for corroboration of particular evidence or kinds of evidence. There are different branches which until recent developments could be regarded as having similar characteristics. But when one branch develops, as without so deciding I would think it has in respect of warnings on accomplices, I would need to be satisfied that the same factors which led to that development ought to be carried over into similar but not identical subject-matter of warnings on corroboration in the case of sexual offences. I will concede that the rule requiring warning in the case of sexual offences remains well based in modern times despite the changes in social conditions and in the status and education of women over the centuries. But I must confess that I am puzzled why there is a greater need for corroboration of identification of an alleged rapist or indecent assaulter than of a murder attempter. Be that as it may, I am not prepared to adopt a stricter rule than was held to exist when Hicks v. The King [1920] HCA 26; (1920) 28 CLR 36 was decided. I do not understand that case as deciding that a trial judge should not in every case as a matter of practice give an appropriate warning, but if he does not and if there is substantial corroborative evidence the Court of Criminal Appeal should examine the strength of that evidence and must be satisfied that there has been a miscarriage of justice before quashing the conviction. However, it need not be satisfied that the jury with the proper direction would "inevitably" have reached the same result, as it would need to be if the proviso were to be applied. (at p568)

18. In my opinion there was substantial evidence corroborating Miss Watson's account of events. There was the evidence of Mr. Harper identifying the accused. There was the fact that the applicant was one of quite a small number of intruders who remained on the premises when the main body of them had left and the fact that the applicant was on his own admission present in the bedroom at one stage when Miss Watson was being raped by another man. The fact that he says that he thought that this intercourse was with her consent does not alter the fact that he was not only present in the flat but actually present in the room at or about the time of the rape. I do not include the admittedly false statements in his record of interview because I am prepared to assume without deciding that they may not be sufficiently closely related to the offence with which he was charged when they are considered in the light of his admitted presence in the house. But it seems to me that the two other pieces of corroborative evidence to which I have referred were substantial and although on the identification evidence as a whole a jury might well have returned a different verdict, this jury was cautioned on the need to approach that evidence with care; it no doubt did so; and I am not satisfied that despite the absence of a warning on corroboration there was any miscarriage of justice. (at p569)

19. In view of the importance of the question which has arisen on the need for warning juries on the danger of acting on the uncorroborated evidence of the victim of a sexual assault and the effect in Australia of a failure to give such a warning I would grant special leave to appeal but I would dismiss the appeal. (at p569)

ORDER

Application for special leave to appeal refused.