Garrett v R [1977] HCA 67; (1977) 139 CLR 437 (22 December 1977)

HIGH COURT OF AUSTRALIA

GARRETT V. THE QUEEN [1977] HCA 67; (1977) 139 CLR 437

Criminal Law

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

CATCHWORDS

Criminal Law - Rape - Defence of consent - Evidence of previous relationship of accused and prosecutrix - Evidence of previous charge of rape of prosecutrix for &which accused had been acquitted - Whether admissible - Direction upon effect of acquittal - Sufficiency. (1977) 15 S.A.S.R. 501.

HEARING

Adelaide, 1977, September 5, 6.
Sydney, 1977, December 22. 22:12:1977
APPLICATION for leave to appeal from the Supreme Court of South Australia.

DECISION

Sept. 6.
BARWICK C.J. This Court is unanimously of the opinion that special leave to appeal should be granted. The question of the admissibility raised by the applicant is of general importance in the administration of the criminal law. (at p439)

2. The question is whether evidence should have been admitted through the testimony of the prosecutrix, that she had been raped by the accused in November 1975. (at p439)

3. Her statement, admitted into evidence, was that she did not consent to intercourse with him which admittedly then took place, and that she indicated in an unmistakable fashion her opposition to that intercourse. It was in respect of that occurrence that the accused was charged at the instance of the prosecutrix and in respect of which upon his trial he was acquitted. (at p439)

4. The prosecutrix was allowed to give evidence at this trial that she had given evidence at the former trial of her non-consent to the intercourse and of the manner of her opposition to it. (at p439)

5. In summing up the learned trial judge told the jury in effect that they should take no inference from this evidence either for or against either party, and he did not emphasize the effect of the acquittal of the accused of the former charge. (at p439)

6. A majority of the Court is of the opinion that none of the above evidence of the prosecutrix was admissible and that there must be a new trial. (at p439)

7. The Court is unanimously of the opinion that the summing up of the learned trial judge in this respect was erroneous in a material respect. (at p439)

8. Other questions were raised in the argument before this Court. Detailed reasons for the conclusion I have expressed, both on behalf of the majority of the Court and in other respects on behalf of the whole Court, as well as for the views of the Justices on these other matters will need to be reduced to writing. (at p439)

9. Meantime the Court should, in the opinion of the Court, indicate its conclusions as to the inadmissibility of the evidence to which I have referred and as to the propriety of the aspect of the summing up to which I have referred, and should set aside the order of the Court of Criminal Appeal of South Australia and in lieu thereof allow the appeal to that court, set aside the conviction of the appellant on counts 3 and 4 of the indictment and order a new trial on those counts. (at p439)

DECISION

Dec. 22.
The following further reasons for judgment were published: -
BARWICK C.J. At the conclusion of argument upon this application for special special leave to appeal and allowed the appeal making orders to enable a new trial of two counts of the indictment to take place. By those counts, the applicant was charged with abduction and with rape. I now furnish my reasons for joining in that decision of the Court. (at p440)

2. The facts produced in evidence at the trial of the applicant were somewhat unusual. The applicant and the prosecutrix had lived together over a substantial period of time. She had twice been pregnant to him. On one occasion she had given birth to a male child (Christopher) and on another had suffered an abortion. The rape with which the applicant was charged was said to have taken place in the early morning of 3rd July 1976 in the back of a motor car at West Beach, Adelaide. The applicant's defence to the charge was that the prosecutrix had in fact consented to the intercourse with him which admittedly then occured. (at p440)

3. For months prior to November 1975 and up to July 1976 relations between the prosecutrix and the applicant had been severed, though it would seem that the applicant had been unable or unwilling to accept the changed situation; and, for her part, the prosecutrix seemed to retain some affectionate regard for the applicant. During most of this time the prosecutrix and the child lived with her grandmother. (at p440)

4. In November 1975, whilst the parties were apart, the applicant had intercourse with the prosecutrix at the place where she was then living, which intercourse she claimed was without her consent and against her will. Immediately afterwards, she saw the police and at her instigation the applicant was charged with rape, tried in January 1976, and acquitted. (at p440)

5. On the evening of 2nd July 1976, the applicant came to the grandmother's house, uninvited and unannounced. There is no doubt that he was then most violent in his conduct not only towards the prosecutrix but to her grandmother and to her aged uncle who was living in the same house. For the assaults he then committed on the grandmother and upon the uncle he was charged and convicted at the time of the instant charge of rape. Against those convictions no appeal was brought. The applicant forcibly removed the prosecutrix and the child, who was then aged two, from the grandmother's house, and compelled the prosecutrix by threat of violence to get into a car along with the child. He drove them to West Beach where it is said the rape took place. I have confined this recital of facts to the bare essentials as there is to be a new trial. (at p440)

6. The application for special leave to appeal is based, first, upon the admission at the trial of evidence given by the prosecutrix as to the incidents of November 1975, and, secondly, assuming that evidence to have been admissible, as to the manner in which the learned trial judge dealt with it and the acquittal of the applicant upon the former charge of rape in his summing up to the jury. The objection to the admission of the evidence of the prosecutrix was grounded in part upon the submission that the acquittal of the accused of the rape charge in 1975 raised an estoppel from which he was entitled to benefit at his trial for the incident of 3rd July 1976. (at p441)

7. Other matters were raised in the course of argument on the application for special leave but none of them, in my opinion, were of a kind to attract the grant of special leave and I do not trouble to deal with them here. (at p441)

8. In order to deal with the ground of the inadmissibility of particular evidence of the prosecutrix, I shall need to set out in full the evidence she gave as to the events of 3rd November 1975:

"Q. That particular evening what time did you go to bed.
A. About ten o'clock I think.
Q. And as far as you are aware did you go to sleep.
A. Shortly after.
Q. And later did you wake up.
A. Yes.
Q. How long had you been asleep, any idea.
A. A couple of hours.
Q. When you woke up did you see someone.
A. Yes.
Q. Was that the accused.
A. He was standing in the doorway of my bedroom.
Q. Did he stay in your room for some time.
A. Yes.
Q. In that room did the accused say to you that if he went to gaol when he

came out he would find you and kill you and kill your husband too if you were married.

A. Yes, he did.
Q. In that room that night did he have intercourse with you.
A. Yes.
Q. Did you consent.
A. No. I did not.
Q. Did you say anything to the accused to indicate that you did not - were

not consenting.

A. Before I screamed I told him.
Q. Just don't go into details, did you say something to him to indicate

that you did not want to consent - were not consenting.

A. Yes, I told him no.
Q. Later that evening did you speak to the police.
A. Yes.
Q. I think you know the accused was charged with rape as a result of the

incident that evening.

A. Yes.
Q. The trial took place in January 1976.
A. Yes.
Q. You gave evidence.
A. Yes.
Q. Did you tell the Court that you did not consent.
A. Yes." (at p442)

9. This evidence was led in chief against the objection of counsel for the accused. There had been a discussion between counsel and the learned trial judge at the inception of the trial and before the taking of evidence when the prosecutor had indicated that he proposed to call this evidence. The trial judge after argument had indicated his view that the evidence would be admissible. Consequently, the objection made by counsel for the applicant at the time the evidence was given before the jury was overruled. (at p442)

10. So that the alternative submission of the applicant may be appreciated, I take the following passages from the trial judge's summing up to the jury:
"The relevance of the evidence of the past association arises in two ways, and it is relevant both to the Crown case and to the case for the accused. The Crown says, in effect, have a look at the past association of these two people and its ultimate breakdown. Do you think it likely or possible, says the Crown, that Miss Golding would freely and voluntarily and willingly submit to sexual intercourse, and particularly having regard to the most recent events in their past, to the events of the night in question? So that is its relevance to the Crown case. The accused, on the other hand, says this has almost throughout been a love/hate relationship and still is. And the Crown in turn replies to that - a love/hate relationship it may have been, but it came to an end at least a year ago. So you see, ladies and gentlemen, you could not reasonably and fairly consider the case either for the Crown or for the accused without knowing about these matters. What I have just stated very much in a nutshell, a very small nutshell, are, of course, among the most critical questions that you have to resolve, and you may use the evidence to which I have referred in that way, but in no other way. So it is also with the evidence that you have heard about the past prosecution for rape and the accused's acquittal on that charge. Again it would be an entirely wrong use of the evidence you have heard about that, meagre as it is, to say on the one hand, well, she couldn't pin it on him last time but it is a different story this time, or on the other hand, to say - she cannot make it stick this time any more than she could make it stick last time. Such an approach would be plainly wrong. The fact is that we do not know and cannot know the basis of the jury's verdict, and we are not to speculate about it. We are not trying that case; we are trying this one. We do not know whether the verdict means that the jury thought the accused was innocent in the true sense, or whether they thought the charge was not proven. We do not know whether they believed Miss Golding or not. We do not know whether there was any corroboration - I shall talk to you about this later - and if there was not, whether the jury simply heeded the judge's warning that it might be unsafe to convict without it. So you are to draw no inferences either for or against the accused or for or against Miss Golding from the fact of that prosecution and its outcome. But again the fact is relevant in other ways.
The Crown says - do you think it is likely that a young woman who has previously charged a man with rape, albeit unsuccessfully, and particularly after the stormy history of their early association, is likely to have freely and voluntarily and willingly submitted to sexual intercourse with him now? While the accused says, this is not the first time she has made a false accusation against him, it is part of a pattern. So you see, ladies and gentlemen, that in order to weigh up the case for the Crown and the case for the accused you needed to know the facts of the previous charge and its outcome. Indeed, you could not have understood the references which the accused made to it when he was questioned by the police, if you had not known about it. But you are not to speculate about the circumstances that gave rise to it, or attempt to use those circumstances about which you know so little as a basis for the decision you have to make on the facts of this case." (at p443)

11. It is apparent from the evidence I have set out that the prosecutrix gave evidence in this trial that on the evening of 3rd November 1975 the applicant had raped her: and that she had unmistakably indicated her unwillingness to consent to intercourse with him. She further said that she had herself given evidence at the earlier trial and said that she had not consented to the intercourse which admittedly took place that evening. (at p443)

12. The Crown's justification for introducing this evidence, and the basis upon which the trial judge admitted it, was that it went to show that relationships between the applicant and the prosecutrix, which earlier had been quite intimate, had so far ruptured that the prosecutrix had informed against the accused and given evidence against him on his trial for rape. (at p443)

13. I can well understand the desire of the Crown to neutralize the obvious effect which the past intimate association of the prosecutrix and the applicant might have in the jury's mind when considering whether or not the prosecutrix had or had not consented to the intercourse which took place on the early morning of 3rd July 1976. Further, I can well understand that evidence to show that their relationship had changed before July 1976 was both relevant and in the interests of the Crown desirable. (at p444)

14. However, that purpose could have been served by establishing that the prosecutrix had in fact informed against the applicant and had given evidence for the Crown at his former trail and had done so willingly. But the Crown Prosecutor was apparently not content to confine her evidence to that extent (and I am not unmindful of his reason for this attitude) with the consequence that evidence was given of a former rape and, secondly, that the guilt of the accused of that rape was asserted notwithstanding his acquittal upon a trial therefor. (at p444)

15. This is not a case in which evidence of similar acts would be admissible to negative accident or other likely defence by an accused or to establish system. Nor could evidence of an earlier rape be admissible, at any rate in chief, to negative the belief of the applicant in the consent of the prosecutrix to the intercourse on 3rd July 1976. (at p444)

16. I am unable to accept the submission that the evidence of the earlier rape is justifiable as an indispensable element in the comprehension or understanding of the occurrence out of which the instant charge against the applicant has arisen. No resort to what is loosely called the background of that occurrence can, in my opinion, warrant the introduction of the evidence of an earlier rape in the evidence of the Crown. The case, in my view, stands as one in which evidence of the earlier and quite disparate rape has been allowed in the applicant's trial for the events of 2nd and 3rd July 1976. (at p444)

17. In my opinion, evidence of an earlier rape, quite apart from the fact of the earlier trial and acquittal, was not admissible. Its admission could not be justified, in my opinion, as a part of a narrative designed to establish the rupture of the parties' earlier intimate relationship, though evidence that the prosecutrix had informed and given evidence against the applicant would itself have been admissible. (at p444)

18. Counsel for the applicant relied upon Director of Public Prosecutions v. Humphrys (1977) AC 1 , and Sambasivam v. Public Prosecutor; Federation of Malaya (1950) AC 458 in support both of his submission that the acquittal of the applicant on the former charge of rape could not be canvassed or challenged by evidence in the present proceedings and in support of his criticism of the summing up of the trial judge. (at p444)

19. I shall deal first with the latter submission. I have quoted the relevant passages of the summing up. I shall do so briefly. It is apparent, in my opinion, that the trial judge, in an understandable endeavour to dissuade the jury from embarking on a consideration of the facts relating to the former charge of rape, did in substance tell the jury that the acquittal of the applicant was a neutral fact. But it was not neutral and, if the prosecutrix were rightly permitted to give the evidence she gave, the acquittal was a dominant fact of which the applicant was entitled to full credit. To have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal and not to lay that emphasis upon it for which the circumstances called. Further, having regard to what I have earlier said as to the admissibility of the prosecutrix's evidence as to the events of November 1975, his Honour's explanation of the presence of that evidence before the jury was, in my opinion, unacceptable. Consequently, had that evidence been admissible, I would have thought the portions of the summing up which I have quoted would have themselves been wrong to a significant degree. (at p445)

20. As to the first of the above submissions, in my opinion the former acquittal could not be called in question by evidence led by the Crown in the subsequent trial. This conclusion does not depend on the purpose which the Crown sought to achieve by the admission of the evidence. It depends entirely on the tendency of the evidence itself. (at p445)

21. The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. Here, if the Crown had sought to establish by the evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, he could have pleaded autrefois acquit and thus precluded the reception of any such evidence. Here, of course, he was not indicted in respect of the intercourse in November 1975: and the purpose of the Crown in proffering the evidence was not to secure a finding that the intercourse had been without consent. But the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested, inadmissible. (at p445)

22. Being clearly of this opinion, I do not find this a suitable case in which to discuss the question whether issue estoppel, as it operates in civil proceedings, is available in criminal proceedings. Whether or not this Court should continue to support the views earlier expressed in Mraz v. The Queen (No. 2) [1956] HCA 54; (1956) 96 CLR 62 and in cases there cited will remain to be decided in some other case. (at p446)

STEPHEN J. I am in agreement with the reasons of the Chief Justice for granting special leave to appeal, allowing this appeal and ordering a new trial upon two counts of the indictment. (at p446)

MASON J. I am in agreement with the reasons expressed by the Chief Justice for the Court's decision, previously announced, to grant special leave to appeal and allow the appeal and for the making of consequential orders enabling a new trial of two counts in the indictment to take place. (at p446)

JACOBS J. In my opinion the evidence of the prosecutrix that on the earlier occasion she had not consented to intercourse with the accused was not admissible for the reasons which have been expressed by the Chief Justice. I agree with those reasons. The conclusion does not depend on the fact that the accused had been acquitted of the earlier rape. In these circumstances the passages in the summing up which depended upon the admission into evidence of this inadmissible evidence were necessarily wrong. (at p446)

MURPHY J. A verdict of not guilty is not equivalent to a verdict of not proven, and the trial judge's direction that Mr. Garrett's acquittal was a neutral circumstance was erroneous. A person who has been acquitted of a charge is entitled in any later proceedings between the government and himself to be regarded as innocent of that charge. (at p446)

2. An accused's prior conviction or acquittal or his previous conduct is generally inadmissible against him, but may be admissible in certain circumstances. If any evidence is inconsistent with a previous acquittal, then that evidence is inadmissible against the accused. Even if the evidence is consistent with the acquittal, it should be excluded on the grounds of fairness if the circumstances require it. In this case, although the applicant claimed estoppels in his favour, the acquittal of rape did not raise any estoppel against the Crown in respect of the separate issues raised in the earlier trial. In that trial, the applicant was entitled to be acquitted if the jury were not satisfied beyond reasonable doubt that (a) the intercourse occurred; (b) Miss Golding had not consented; and (c) the applicant had the requisite intent. (at p447)

3. Whether proceedings are civil or criminal, if a general verdict could be based on a finding on any of two or more issues, there is no logical basis for issue estoppel on any of the issues. Thus, if one party fails unless all issues are found in its favour, and it fails by a general verdict, there is no estoppel on any of the issues. If it succeeds, there is a logical basis for issue estoppel in its favour on all the issues. In criminal law, however, there may be good reasons for not applying issue estoppel against a defendant. (at p447)

4. The previous relations between the applicant and Miss Golding were relevant to the issues of whether Miss Golding consented to intercourse and whether the applicant had the requisite intent. In the peculiar circumstances of this case, the facts of the proceedings against the applicant at the trial on the charge of rape on 3rd November 1975 were strictly admissible in this trial on the issue of his intent on the charge of rape on 3rd July 1976 (but not of course evidence of the truth of what occurred on 3rd November 1975). The judge had discretion to limit the evidence of the earlier trial to avoid its overshadowing the other evidence in this case. The facts that Miss Golding had charged the applicant with raping her on 3rd November 1975, had persisted in that charge, and had supported it by her evidence, were also relevant to show her hostility to the applicant and entitled the jury to make inferences (against the accused) on the issue of consent on the charge of rape on 3rd July 1976. (at p447)

5. If the first case had not been of rape but of some other charge (e.g. malicious wounding), tending to prove a hostile relationship between the two persons, similar considerations would apply. (at p447)

6. In this case, Miss Golding also gave direct evidence of the events on 3rd November 1975 that led to the earlier charge of rape. This evidence tended to prove intercourse, absence of consent and the requisite intent. It was, if accepted, inconsistent with the accused's acquittal on the earlier trial and it was therefore inadmissible. It is not necessary to decide whether evidence showing that intercourse had occurred without her consent on 3rd November 1975 (but not tending to prove the requisite intent) would have been strictly admissible on the issue of consent in this case. (at p447)

7. Special leave should be granted, the appeal allowed, a new trial ordered. (at p447)

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order of the Court of Criminal Appeal of South Australia set aside and in lieu thereof order that the appeal to that Court be allowed, set aside the conviction and sentence of the appellant on counts three and four of the indictment and order a new trial on those counts