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[This edited version of the article has been prepared by Dr Robert N Moles]

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Alan Arthur Farrell v R - Supreme Court of Tasmania Court of Criminal Appeal

>18-20 March 1996, 7 June 1996

Cox CJ

The appellant, a Minister of Religion, seeks to set aside his conviction on one count of assault, one count of aggravated sexual assault and four counts of rape and seeks leave to appeal against the sentence of eight years' imprisonment imposed upon him by the learned trial judge. The grounds of appeal are as follows:

"1 That the Learned Trial Judge erred in law by ruling as admissable (sic) evidence of the existence of a necktie allegedly photographed within the appellant's home on or about the 15th of October 1993.
2 That the Learned Trial Judge erred in law by ruling admissable (sic) evidence that the appellant had been involved in a violent incident at his home on or about the 15th of October 1993.
3 That the Learned Trial Judge erred in law by holding that at the close of the Prosecution's case the accused had a case to answer in relation to counts one to eleven inclusive on the indictment.
4 That the verdicts of the jury were unreasonable or cannot be supported having regard to the evidence.
5 That the verdicts of the jury were unsafe and unsatisfactory.
6 That the Learned Trial Judge erred in law by failing to exercise his discretion in favour of the accused and order that the jury be discharged after certain members of the jury embarked on an unauthorised fact finding exercise (application was made for a discharge at 1092 of the transcript).
7 That the Learned Trial Judge erred in law by ruling that it was impermissible for the defence to introduce evidence from the defence witness, Dr Sale, concerning other possible mental states suffered by the complainant. Such evidence being relevant to the reliability of the complainant's allegations.
8 That the appellant seeks leave to introduce fresh evidence on appeal pursuant to S409 of the Criminal Code Act, 1924. The fresh evidence comprises a report made by the brother of the complainant to the police that the complainant '... was grabbed about six hours ago by four blokes who had him tied hand and foot.'
9 That the Learned Trial Judge erred by instructing the jury that 'Dr Sale's opinion really does not count for anything because he did not get to the stage of diagnosing an actual medical condition which would be on your experience and mine'.
10 That in all the circumstances the sentence imposed upon the applicant was manifestly excessive."
Grounds 2 and 3 were abandoned on the hearing of the appeal.

In brief, the facts asserted by the Crown were that on 22 February 1994 the complainant and the appellant were drinking at the Empire Hotel in Elizabeth Street, North Hobart. At about 7.40pm the complainant was discovered by three elderly women sitting on the road adjacent to the western entrance of the Empire Hotel. The complainant was significantly inebriated. The women rendered him assistance by removing him from the path of on-coming traffic. The appellant appeared on the scene and had a short conversation with the elderly women and agreed to assist the complainant. Subsequently, the appellant conveyed the complainant to his home in Campbell Street, Hobart. At the home of the appellant, the complainant was assaulted and sodomised by the appellant and another unknown male person identified by the complainant as "Frank" or "the animal". At the conclusion of this alleged attack by both men, the complainant was manacled with a necktie and a pillowcase was placed over his head, blindfolding him. He was then conveyed by car to a place in North Hobart and left in the street in the early hours of Wednesday 23 February 1994. The complainant managed to remove the hood and made his way to his brother's home in Elizabeth Street, North Hobart, but was unable to locate him. From these premises he walked to an address in George Street, North Hobart, the home of another brother, Scott, arriving at approximately 4am. The complainant managed to attract his brother's attention and the latter rendered him assistance, removing the manacle and calling the police. The manacle consisted of a necktie which Scott handed to the police. According to the brother, the necktie was tied so tightly that he had to cut it from the complainant's wrists with a carving knife. The complainant was taken to the Royal Hobart Hospital and was medically examined. Thereafter that morning he was interviewed by police.

The previous October the appellant was involved in an incident where he was seriously assaulted by two men whom he had invited to his home. In the course of this assault he had been beaten, bound and placed in a cupboard in his bedroom. Police were called and the premises at Campbell Street, Hobart were photographed. Appearing in some of the photographs are a number of neckties strewn on the floor of the appellant's lounge room. One of them appears to be, if not identical, certainly very similar in pattern and style to the necktie which was discovered binding the complainant's hands when he arrived at his brother Scott's house in the early hours of 23 February 1994. The Crown also called scientific and other evidence which was capable of suggesting that the complainant had been sexually assaulted by somebody, but scientific evidence in no way identified the appellant as the perpetrator of any sexual assault.

The defence case was that the appellant, who had spent some time at the Empire Hotel on the afternoon in question, came upon the complainant as he was leaving the hotel. Finding that the complainant was in a very drunken condition, he offered him assistance and brought his car to the hotel where, with the assistance of the women who were standing nearby with the prone complainant, he placed him in his car. The appellant, in a lengthy record of interview with police, described how the complainant fell asleep in the car, preventing the appellant from obtaining his home address. The appellant, not wishing to abandon the complainant in the street, decided to take him home in order to give him the opportunity of sobering up. He accordingly conveyed the complainant to his home, took him to his bedroom and placed him in his bed for a short period. About an hour after his first arrival at the appellant's home he was roused by the appellant, taken downstairs and driven to a place adjacent to the Elizabeth College where the complainant alighted from the car and disappeared. Thereupon the appellant returned home. He was not prepared to concede ownership of the tie which had been used to shackle the complainant's hands but conceded it might have been given to him in the past or left behind by a visitor. He denied any form of assault having been perpetrated by him upon the complainant and that he had been accompanied by a third person at any time.

Ground 1

The necktie removed from the complainant's hands by his brother Scott was coloured orange and was of a quite distinctive pattern. If it came from the appellant's home, it added considerable cogency to the complainant's allegation that he had been assaulted there, manacled as claimed and taken away and dumped nearby, still shackled. The police happened to be in possession of photographs, lawfully obtained during an investigation into a previous assault on the appellant and which showed a number of ties on the appellant's premises. One of these ties bore the same distinctive and rather flamboyant pattern as that removed from the complainant's wrists. The photograph was a colour photograph and showed a considerable portion of the tie, both front and back. The jury had an ample basis for making a fair comparison between the tie tendered as an exhibit and that depicted in the photograph. The photograph was, in my opinion, clearly relevant and admissible. It was for the jury to evaluate it. It is true there was no evidence as to where the tie had been manufactured or purchased, nor how many similar ties had been produced and sold. But it did not become inadmissible because other similar ties might have existed and thus might have reduced the likelihood that this tie had come from premises at which, it was common ground, the complainant had been present a few hours before he was discovered by his brother. Counsel for the appellant argued that the evidence was incapable of satisfying the jury beyond reasonable doubt that the tie in question was the same as that photographed in the appellant's home four months earlier. Even if it were not it did not thereby become inadmissible. In any event it was not necessary for a conviction that the jury read such a degree of satisfaction about the tie. The evidence was corroborative of the complainant's version of events. Even where as a matter of law or practice, corroboration is necessary for conviction or its absence without due warning to the jury will require a conviction to be quashed, corroborative evidence need not have the quality of being evidence establishing any proposition beyond reasonable doubt Doney v R (1990) 171 CLR 207. In my opinion, there is no substance in this ground of appeal.

Grounds 4 AND 5

For the reasons given by Slicer J, I agree that these grounds are not made out.

Ground 6

The appellant gave evidence on 3 July 1995, the trial having commenced on 19 June and the first witness having been called before the jury on 22 June. It concluded on 7 July 1995. In the course of his evidence he said that having encountered the complainant sitting on the footpath beside the hotel in a state of distress, he went along Burnett Street to where his car was parked on the same side as the hotel about 100 metres away and drove it back, where he helped the complainant into it. Thereafter he had taken him to his own place and looked after him before taking him back by car to Elizabeth Street, unmolested, and there dropping him off about an hour later. One of the female witnesses, Mrs Vickers, who waited with the complainant while the appellant went to get his car, said that he was gone "it seemed like a good while but it was probably not more than eight minutes maximum". In cross-examination she said he was gone "definitely more than four minutes ... I think it would be a bit longer than five minutes ... All I can remember is one of us said 'he's taking his time'". A second, Mrs Lewis, said he was gone "about five minutes ...It was long enough for us to wonder whether in fact he was coming back at all". The incident occurred at about 7.30pm.

The appellant was cross-examined by the Crown Prosecutor about the length of time it would take him to walk from the hotel to his premises in Campbell Street and return by car. He agreed that this could be achieved within eight minutes. He was asked if it was possible that that is what he did, and replied "Absolutely not". Counsel for the appellant submits that there was an innuendo in the cross-examination that the appellant had in fact done so, that this indicated he was prepared to go to considerable lengths to get the complainant in his power and that his explanation of a spontaneous "good Samaritan" response to the situation by putting him in a car which happened to be parked nearby was untrue. It is in that context that the undoubted irregularity complained of in this ground is to be judged. On the day after the appellant gave his evidence, the learned trial judge's associate was told by the jury forewoman that some members of the jury had visited the area of the hotel and that one had made a telephone enquiry of the Hobart Weather Bureau to determine what time sunset was in February. His Honour, on the resumption of the hearing, asked the forewoman what had happened. The following exchange occurred:
"Madam Forewoman: A couple of the guys sort of just checked the walking distance, I mean they were sort of up there doing stuff.
His Honour: What, just had a look at the scene and walked down the street and counted the paces and that sort of thing?
Madam Forewoman: Yes, just had a look at, if it was a clear way in Burnett Street and just sort of, just to get the perspective of the distance that the car was said to have been parked from the hotel.
His Honour: Okay. And then there was some question about someone getting in touch with the Weather Bureau I think?
Madam Forewoman: Yes, somebody got in touch with the Weather Bureau just to find out what time sunset was.
His Honour: On the Twenty-Second of February? Yes, right. Did that person who made that contact say anything to the Weather Bureau? 'I'm asking this because I'm on this Jury' or something like that?
Madam Forewoman: Oh no, I don't think so.
His Honour: It was just a straight out question?
Madam Forewoman: Straight out, you know sort of what time did the sun set.
His Honour: All right, and that's all?
Madam Forewoman: Yes.
His Honour: Thank you. You see it's very important that Jurors decide the cases on the evidence, that's what your Oath requires you to do, and the evidence is confined to what you see and hear in this Court room and not what you might learn from outside, and for example you just mention in passing to see whether Burnett was a clearway, it might or might not be a clearway today, it's a question of whether is was on the Twenty-Second or Twenty-Third - so you can be misled, I don't think that's of significance in this case but it serves to illustrate the point as to why jurors should confine themselves to what they've seen and heard. And it might be that the officer who answered the query at the weather bureau made a mistake in giving the answer but if it had come to you through the witness box, both counsel would have checked and double checked the information and you would have been sure it was accurate. So it's very important that you don't do those things and just rest on the evidence."

Counsel were asked if they had any submissions and counsel for the appellant reserved his right to apply for a discharge of the jury until he had had the opportunity to obtain written instructions. The trial proceeded and the following day counsel for the appellant applied for the jury to be discharged. He submitted that the actions of the jurors were not without significance in view of Crown counsel's questions suggesting that the appellant had gone to the trouble of going home for his car and that they amounted to an unauthorised investigation of the credibility of the appellant's denial of that suggestion. In view of certain newspaper reports of the exchange with the jury the previous day, his Honour broached the subject again with the jury. The reports were not before us but it appears that they were such as to suggest to the learned trial judge that detailed measurements of distance and time might have been undertaken by some members of the jury. This exchange then followed:

"His Honour: I need to know a little bit more about what those who went to Burnett Street did and in particular I want to know if any more was done than simply walking to Burnett Street, walking up and down a bit, having a look around, noting the various land marks, the position of the Empire and where the hotel ends and where the shops begin and so on because I have in mind from the answers yesterday there is a possibility that whoever went there might have perhaps taken measurements and used a watch and time things, that sort of thing, which would really be going into evidence wouldn't it and I felt I just left that issue open. So madam forewoman could you help me a little bit about that.
Forewoman: Yeah, just what I've been told. When the weather bureau got rung up it was only sunset for the middle of February, there was no mention of when in February or what year and from the walking it was just sort of checking where things were - no actual measurements.
His Honour: No question of pace - sorry.
Forewoman: No actual - well, like the newspaper reported pacing, there was sort of none of that, it was just go up, have a look around and just sort of see what was up there and -
His Honour: Generally the topography of the scene?
Forewoman: Yes.
His Honour: Yes, all right. “
Juror: Your Honour, I am involved and -
His Honour: That's right - I hasten to add there is no question of blame about this, it is very understandable.
Juror: No, I've got no problem at all. I was driving up Burnett Street from Argyle Street to Elizabeth Street and observed the signs, I didn't get out of the car, that's all I'd do, so that's why I asked about - it's not hearsay, it's something I saw -
His Honour: Yes.
Juror: And I just had a doubt about - I just wanted to confirm what time it got dark in February.
His Honour: Right.
Juror: And I rang the weather bureau and I said could you please - a woman answered and I said could you please tell me what time it gets dark around about the middle of February and she went away and came back and said such and such with an hour's twilight.
His Honour: Right.
Juror: That's all that was said.
His Honour: Right, excellent. Well thank you very much for that frank disclosure. All nodding I see so there seems to be consensus that that was the extent of it.
His Honour: Well now counsel, Mr Wendler, do you want me to explore it further, is there any special request you have to make of me?
Wendler: Not really, your Honour, only as to whether or not, I'm just a little unclear as to whether any of the members of the jury actually walked from the Empire Hotel to Campbell Street and had a look at those premises, I'm not sure about that.
His Honour: All right, well we'll just ask that. Did anyone do that, that is, walk out the distance between the hotel and Campbell Street? No. Anyone? No. All right, no one seems to have done that."

His Honour then declined the application to discharge the jury. Nothing further seems to have been said of these irregularities until the commencement of the summing up when the learned trial judge said: "When the trial began, each of you took an oath to well and truly try in accordance with the evidence and the evidence as you know very well by now in this case is what you've seen and heard in this court room and nothing else and your oath requires you to try it in accordance with the evidence and the standard direction given to juries is that you mustn't let anything that you've seen or heard outside the court room affect that. Well I won't go over that - over all that again, ladies and gentlemen, you know what I mean of course."

There are several reported cases where irregularities in the form of unauthorised or indiscreet communications between jurors and other persons have been considered. In R v White 1969 [SASR] 491 a brief conversation about the weather was initiated by a juror with Crown counsel. The Full Court of the Supreme Court of South Australia said, at 493: "We realise that it is of the utmost importance that justice must not only be done but be seen to be done, and that such a conversation as deposed to by the juryman could easily arouse suspicion in anyone who saw it without hearing it, and particularly in the accused. But now that its innocuous nature has been made plain it would be utterly unreasonable for any such suspicion to remain." The Court declined to quash the conviction. In R v Hodgkinson [1954] VLR 140, the Full Court of the Supreme Court of Victoria was confronted with a situation where a juror had asked one detective who had given evidence in the case whether another officer, likewise a witness, lived in a certain suburb and had a son called Ian who attended a particular school. The first detective had replied that the second lived in a different suburb, but did have a son called Ian who attended the school in question. Barry J said at 144: "We must, therefore, make up our own minds whether the incident was of such a character that, if the verdict is allowed to stand, justice would not appear to be done or that the incident was likely to give rise to a reasonable suspicion concerning the fairness of the trial. We think it partook of both characters, and that if the trial Judge possessed the power to do so, it would have been a proper exercise of discretion to have treated the trial as having miscarried, and to have discharged the jury. For a policeman, and a policeman who has himself given evidence, to speak with the foreman of a jury before verdict is not only indiscreet, but is calculated to raise suspicion in the mind of the ordinary bystander. In addition, though the question asked and answered may have been harmless, it is possible it may not have been. Sergeant Brown was a witness, and the foreman's attempt to identify him may not have been mere idle curiosity. The foreman or some other member of the jury may well have formed an opinion about the Sergeant Brown who lived at Bentleigh or Brighton and who had a son called Ian who attended Melbourne High School that would influence his belief in the evidence which Sergeant Brown had given."

In R v Twiss [1918] 2 KB 853 where a conversation occurred between a juror and the complainant, Darling J, delivering the judgment of the Court of Appeal, stated the test thus (at 859): "In those circumstances it is necessary for us to consider whether what the juryman did was of such a character as to lead us to think that there may have been an injustice done to the prisoner." See also Duff v R (1979) 39 FLR 315 where the Full Court of the Federal Court dismissed a challenge based on the fact that the trial judge's associate had been approached by a juror at a private social occasion and engaged in an "innocuous" conversation on matters which did not in any way touch upon any of the issues in the trial.

In Webb v R (1993-1994) 181 CLR 41 the High Court was concerned with a matter which involved a suggestion of bias on the part of a juror. She had requested, during a trial for murder, that a bunch of flowers be given to the mother of the deceased. The majority of the court did not consider that in the circumstances a fair minded observer would have had any apprehension of lack of impartiality on the part of the juror. The court was unanimous that the test to be applied for determining whether any regular incident involving a juror warrants the discharge of the juror, or in some cases the jury, is whether the incident is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially. Although there is no room in the present case for any suspicion of impartiality on the part of any of the jury, the irregularities were such that some unauthorised material came into their possession and this gives rise to the question whether the incident affected the fairness of the trial. Even in cases where bias is not alleged, it seems to me to be appropriate that the test laid down in Webb's case should be followed, namely, would the irregularity, notwithstanding any warning of the judge, give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or the jury has not or will not discharge their task either impartially or fairly to the accused.

In the circumstances of this case I am satisfied that the learned trial judge sufficiently impressed upon the jury the necessity to make their judgment on the evidence they had seen and heard in the court and to put out of their minds anything which emanated from another source. In many joint trials evidence inadmissible against one accused but admissible against a co-accused is heard by the jury; but provided clear and explicit instructions are given by the trial judge as to how it may and may not be taken into account, and provided those instructions are reasonably capable of performance, a jury is to be trusted to carry out their obligation. As Neasey J observed in Leaman v R [1987] Tas R 187 (NC 4) (9/1987 at 7): "If that were not so it would be a serious objection against the trustworthiness of the jury system as a whole." Of course, the information procured from the weather bureau should not have been received at all, and the jurors who did so should not have visited the scene and conducted an unauthorised private view. But the instructions of the learned trial judge were reasonably capable of performance and in my opinion the fair minded observer would not, in the circumstances, apprehend or suspect that the jurors would use the knowledge thus obtained in any way adverse to the appellant. In reaching this conclusion I take into account the fact that the general area of the hotel, the streets it abuts and the position of the appellant's premises which were the subject of photographs tendered in evidence and which were also described as being in Campbell Street and "opposite the Campbell Street school" is an area which would be well known to a large number of Hobart residents. It is inconceivable that every member of the jury, unless taken on a view, would have been ignorant of the general topography. There is every likelihood that one or more of the jurors empanelled in this case would at some time during the course of the quite lengthy trial have had occasion to pass through that area and to have a general idea of light conditions during the month of February. Mere knowledge of the area could in no way have prevented the proper discharge by any individual juror of his or her duty to try the case on the evidence. It was not a case where detailed observations were made of distances, or the time necessary to cover them on foot or by car. If those who made the expedition or enquiry of the weather bureau did so in order to evaluate the appellant's response to the suggestion that he might have procured his car from his home and not from a position only 100 metres or so away from the hotel, I cannot see that it could possibly have availed them in any event, as he conceded it was possible for him to have done so, but asserted that he had not. Likewise, I cannot see how knowledge of the precise time of sunset on or about the date of the offences could have in any way influenced their decision in a way adverse to the appellant. In my opinion, no fair minded and informed member of the public, conscious of the warning given by the trial judge to the jury, could apprehend that the limited knowledge acquired by some of the jurors in the above manner would have had any influence on the fair and impartial discharge of their obligations. No miscarriage of justice has been demonstrated.

Ground 7

The defence challenged the competence of the complainant to give evidence on the trial. For the purposes of determining this challenge, the learned trial judge conducted a voir dire before the case was opened to the jury. He ruled that the complainant was competent to give evidence, but later in the trial permitted evidence to be given by a psychiatrist, Dr Sale, tending to suggest that the complainant suffered from a mental disorder rendering his testimony unreliable. This was in accordance with the principle expressed by Brennan J (as he then was) in Bromley v R (1986) 161 CLR 315 at 322 as follows: "The admissibility of the evidence of a person suffering from a mental disorder which affects his capacity to observe, recollect and express the matters which his evidence is tendered to prove is a question for the trial judge: see Sinclair v The King (1946) 73 CLR 316, at 333. Though his evidence is admitted (whether over objection or not), other evidence showing that his capacity to observe, to recollect, or to express is impaired by mental disorder may be called before the jury, for it is relevant to the weight to be given to his evidence: Toohey v Metropolitan Police Commissioner [1965] AC 595, at 608; Reg v Dunning [1965] Crim LR 372; Wigmore on Evidence, vol 11, para497(c). Admission of the impeaching evidence is one of the recognised exceptions to the general rule against calling witnesses to contradict a witness on collateral matters: Archbold, Pleading, Evidence and Practice in Criminal Cases, 42nd ed (1985), para4.336, at 420."

In the course of the examination-in-chief, counsel for the defence sought to adduce evidence of other possible conditions from which the complainant might be suffering. The learned trial judge refused to allow him to do so. During the voir dire on the complainant's competence, Dr Sale had revealed that he had not examined him because the complainant had not been made available to him for that purpose. Of course, the complainant was under no obligation to make himself available for that purpose. This ground of appeal involves a complaint that the defence were erroneously prevented from placing the substance of this material before the jury. It is clear from the statement of principle in Bromley v R (supra) which I have already set out that evidence concerning a witness's reliability or credibility is admitted as an exception to the general rule against calling witnesses to contradict the witness on collateral matters. Brennan J confined his remarks to evidence concerning a witness who was suffering from a mental disorder which affected his capacity to observe, to recollect or to express. In R v Toohey [1965] AC 595 at 608 Lord Pearce, delivering a speech concurred in by all the Lords of Appeal present, said: "Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and common sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of 50 yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than 20 yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise."

The evidence of Dr Sale given on the voir dire went nowhere near establishing a mental disease or abnormality which deprived the complainant of the capacity to give to the jury a true or reliable account of his dealings with the appellant. The doctor (and no one could criticise him for this), because he was unable to examine the complainant, was unable to express any firm opinion that the complainant suffered a factitious disorder at all. But in any event, such a disorder was not shown to be one depriving the patient of the capacity to recollect or to recount the truth. At best it indicated only that such a person might, for his own ends, distort the truth or tell outright lies. The burden of the doctor's evidence to the jury concerning the complainant's personality disorder was that such a person was unreliable and that his claims ought to be treated with caution. Even if the evidence taken on the voir dire had been admitted, it would have taken the matter no further. The complainant's bizarre background, his encounters with hospital staff in the past, his alcohol and substance abuse, his anti-social antecedents and character were all exposed by cross-examination and production of medical records. There is no complaint (and rightly so) of any inadequacy in the warning given by the learned trial judge in his summing up that the jury should scrutinise the complainant's evidence with great care. In my opinion, the learned trial judge rightly excluded the evidence of any other possible mental conditions or disorders; but even if I am wrong about that, I can see no possible injustice to the appellant in view of what the psychiatrist was permitted to say.

Ground 8

About a month after the appellant's trial had been concluded, his solicitor was informed by a member of the police force that there was in existence a written log maintained by the department and which recorded the substance of the call made by the complainant's brother, Scott, shortly after the complainant's arrival at his home at about 4am on 23 February 1994. The operator had recorded that at 4.24am a call had been received from Scott --- of an address in George Street, North Hobart identifying the victim as the complainant. The operator noted "just arrived at above address, with hands tied behind back, claimed was grabbed about six hours ago by four blokes who had him tied hand and foot". The respondent filed an unchallenged affidavit from one Constable Murnane to the effect that he had made the record in question on computer on 23 February 1994; that

the information entered for that incident was his condensation of the conversations that took place between himself and the person reporting, who called himself Scott ---; and that to the best of his recollection the record accurately reflected the information passed to him in that conversation. Although there is no specific complaint recorded of the assault having any sexual element, certain code numbers used in the computer entry indicate that Constable Murnane categorised the incident under the headings of both assault and rape. It is to be inferred that this information was procured by him from the caller. Scott --- gave evidence on the trial and said that the complainant, on his arrival, was crying and upset. He told him he had been abducted, bashed and raped. The witness gave no other details of the complaint and confirmed that he had summoned the police by telephone.

In Gallagher v R (1985-1986) 160 CLR 392 at 395-396 Gibbs CJ said: "The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429, at 439, as follows: 'A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.' Perhaps no more elaborate statement of the position can usefully be made."

In respect of the first consideration, I am satisfied that the material sought to be relied upon was not available to the defence at the time of the trial and it could not be said that it could with reasonable diligence have been produced thereat. My concern is whether the appellant has satisfied the other requirements. Gibbs CJ at 399, speaking of the differences of expression in the judicial discussion of them, said: "No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial." Mason and Deane JJ in their joint judgment, after referring to the formulation cited above by Gibbs CJ in Craig v R referred as well to that contained in the judgment of Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ concurred) in Ratten v R (1974) 131 CLR 510 at 519, 520: "In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take. ... if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence."

In Winslett v R (1992) 60 SASR 1 Duggan J (with whom Legoe and Mohr JJ agreed) referred to the different formulations of the test, noting (at 3-4): "In Mickelberg v The Queen (1989) 167 CLR 259, Mason CJ (at 274) said the proper question is 'whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial'. The learned Chief Justice stated that this was the view of four of the five Justices in Gallagher. In his judgment in Mickelberg (supra) Brennan J said (at 275): “The formulation which, in my respectful opinion, was settled by this Court in Ratten v The Queen (1974) 131 CLR 510 at 519, 528, and in Lawless v The Queen (1979) 142 CLR 659 at 666, 670, 677, 686, is whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused. That was the formulation to which I adhered in Gallagher at 409-410. The test has sometimes been expressed not in terms of "likely" but in terms of "might" (Stafford v Director of Public Prosecutions [1974] AC 878 at 893, 907, 912; Gallagher at 399, 421) or in terms of "significant possibility" (Gallagher at 402). Although I agree with Toohey and Gaudron JJ that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the "likely" formula remains.' Deane J favoured the 'significant possibility' test. Toohey and Gaudron JJ did not express a preference for one test over another in their joint judgment.

There is much to be said, with respect, for the view expressed by King CJ in R v McIntee (1985) 38 SASR 432 at 435 that: 'The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.' This statement was adopted by Gibbs CJ in Gallagher at 395." In respect of the plausibility of this evidence, I think it can be said that it was capable of extracting an admission from Scott --- that his brother had complained to him of being attacked by four men or, had he disputed it and had it been proved under the Evidence Act 1910, s81L, capable of persuading the jury that that was the nature of the first complaint. On the other hand, depending on any explanations offered by Constable Murnane, Scott --- or the complainant, they might have been unpersuaded that the complainant had made such a statement inconsistent with the account he gave the police later that morning and with his evidence on the trial. There is potential for some misunderstanding between the two brothers having regard to the complainant's state, or between Scott --- and the police operator. In view of the fact that the complainant referred to his assailants variously as "Tom", "Frank", "the gentleman" and "the animal", "Tom" being "the gentleman" and "Frank" "the animal", it is possible, if he used that method of describing them, for his brother to have understood him to be referring to four men and not two. Nevertheless, even if one accepts that the defence was deprived of the opportunity of tendering plausible evidence proving or suggestive of a prior inconsistent statement by the complainant on the issue of how many persons had attacked him, the evidence, in my opinion, fails the test of cogency.

Notwithstanding that the Evidence Act 1910, s81L might make the statement recorded by Constable Murnane admissible as evidence of the fact that Scott --- had told him the details recorded and had in turn been told them by the complainant, or that if such a statement to his brother was denied by the complainant but proved by Scott --- to have been made by him, s81L would make the complainant's statement admissible as evidence of its truth, the admission of the fresh evidence cannot realistically be regarded as advancing anything but the appellant's already strong attack on the complainant's credibility. It is, I suggest, unrealistic to suppose it would have induced any acceptance by the jury of the possibility that the complainant had, after leaving the appellant's premises, been set upon by four men, other than the appellant, and sexually abused by them. Having regard to the evidence given on the trial including, in particular, that relating to the fact that the complainant's hands were still tied at 4am with a necktie which the jury had strong reason to find came from the appellant's home, I think it is inconceivable that such a hypothesis would have been regarded by the jury as a reasonable one, even given the admission of the evidence of the inconsistent statement of the complainant. The effect of that statement could not reasonably have been expected to impact on the jury as anything other than a further reason for regarding the complainant's evidence as lacking in credibility. As I have said, there had been a powerful attack already on his credit and one which, in the circumstances, had rightly attracted the kind of warning recognised as necessary by the High Court in Bromley v R (supra). The jury were well aware of his previous convictions, his antecedents, his previous admitted lies, his alcohol and substance abuse, his visits to psychiatric and detoxification units and his complaints of previous sexual assaults, including, in particular, one alleged to have taken place about seventeen years previously in circumstances remarkably similar to the present.

They had been warned to scrutinise his evidence with great care before convicting. They did not, in fact, convict on any counts proof of which required a finding of the commission of a crime by the third man referred to as "Frank" or "the animal". There was no corroborative evidence in respect of such counts - no corroborative evidence even of the existence, let alone presence, of that person; but as there was, in my view, significant corroborative evidence in the form of the tie which linked the appellant to the complainant not only earlier in the evening but up until shortly before the complainant's arrival at his brother's home with his hands bound, it seems likely that the jury were fully alive to the deficiencies in the complainant's credibility and were only prepared to convict where his evidence was in fact corroborated. In these circumstances the prior inconsistency, if accepted as such by the jury, is extremely unlikely, in my view, to have had any further effect on their assessment of him. Whichever formulation of the test one uses, in my opinion there is little likelihood that any different conclusion would have been reached by the jury if the fresh evidence had been admitted on the trial. I am quite unpersuaded a miscarriage of justice has occurred because of the absence at the trial of this evidence.

GROUND 9

This ground complains of a direction by the learned trial judge in his summing up. Transcription of his comment is a little corrupt, but it seems clear that what he said was: "... Dr Sale's opinion really does not count for anything because he did not get to the stage of diagnosing an actual medical condition which would be beyond your experience and mine." The context of his comment should be set out: "Well now I just mention briefly the medical evidence and remind you, as I think Mr Wendler correctly told you, and I mention to you that it is up to you whether you accept expert opinion evidence or not. The rule of evidence is that generally witnesses can only tell juries what they perceive with one of their senses, it is something they see or hear or touch or smell and so on, and it is up to the jury to draw what inferences they think are appropriate from that. But sometimes ordinary human experience is not sufficient to understand the evidence so where we move into the realm of expert testimony such as medical testimony the witnesses are allowed to give their opinion of matters within their expertise and that is why you got opinions from these Doctors you see but you could not get opinions from others and that is why Dr Sale's opinion really does not count for anything because he did not get to the stage of diagnosing an actual medical condition which would be beyond your experience and mine."

The complaint is that the effect of his Honour's comment was to make a value judgment of Dr Sale's evidence depriving it of any weight at all. I do not think there is any substance in this complaint. His Honour was entitled to comment on the evidence. He had earlier in the summing up said: "Doctor Sale told you that he's got these personality disorders but he was quite clear that he had no opinion that he had a psychiatric condition that affected his capacity to recall events and recount them to you." He had reminded them of the evidence of the complainant's alcohol and drug abuse, his antecedents, attempts to commit suicide in bizarre circumstances, his lies and hallucinations, and had impressed upon them the risk of unreliability and the consequent need for careful scrutiny of the complainant's evidence. In truth, the psychiatrist's evidence which I have cited above in respect of ground 7 did not take the matter any further than would be within the range of the average juror's knowledge and experience. I would dismiss the appeal against conviction.

GROUND 10

The applicant seeks leave to appeal against the sentence of eight years' imprisonment imposed upon him on the ground that it is manifestly excessive. In sentencing him for the crimes of assault, aggravated sexual assault and four counts of rape, his Honour said: "The commission of these crimes can properly be categorised as violent acts of extreme depravity. Consistent with the verdicts of the jury, I find that you were well aware of the presence of your victim when you were both in the bar of the Empire hotel and well aware that he was very badly affected by liquor. I also find that you later learnt that he had fallen senseless outside the hotel and you then decided to prey upon his body to satisfy a violent sexual lust. Under the guise of taking care of him, you assumed dominance and complete control over the complainant when he was unable to look after himself by placing him in your car and driving him to your home. Once there, you manoeuvred him upstairs into your bedroom and ensured his continued subservience by binding his hands together with a necktie. Without any consideration for your victim's feelings or dignity, you proceeded to anally assault him and then anally rape him on 4 separate occasions over a period of some hours. During that time I find that you plied this already very drunk man with even more liquor, no doubt to enable you to use him at your will. The final callous indignity of the night was to turn him loose in a street in North Hobart with his hands still bound to find help as best he could. At the time of the commission of these crimes you were an ordained priest of the Anglican Church. Although that may be a matter for your conscience, it is not a circumstance of aggravation in the sentencing process for you were not purporting to act in your vocation at the relevant time. The crimes of which you have been convicted are crimes of sexual power and violence. It is the manner in which you selected and then used and abused your helpless victim that makes your criminal conduct so heinous. There is nothing in your personal circumstances and background, nor in the circumstances surrounding the commission of the crime to explain your evil behaviour or to mitigate against penalty. Sentence must serve to punish, to deter and to mark informed and quite proper community outrage over the commission of these crimes."

Although some criticisms were made at the hearing of the appeal of specific findings made by his Honour, they were abandoned. The applicant was 46 years of age, had been a priest for a significant number of years, had worked in specialist social welfare areas for a significant period of time and had, since being charged with these offences, suffered ostracism, ridicule and abuse in the eighteen months preceding his trial. He had no previous similar convictions, but had been convicted on three previous occasions for offences against the Road Safety (Alcohol and Drugs) Act 1970. His future prospects within the church ministry upon release from the custodial sentence which was inevitable would be bleak, if not non-existent. The sentence of eight years' imprisonment on such an offender is a very severe one; but on the other hand the nature of the offence was very grave, the outrage in the community it excited understandable, and the need to deter others like minded by condign punishment manifest. The victim was one of society's casualties. The Victim Impact Statement by Dr Lopes and not challenged by the applicant's counsel concluded with this opinion: "I would regard [the complainant] as a man of borderline intelligence, who came from a rather chaotic family background (eight children from 3 different fathers) and both parents regarded as alcoholics and has a history of neglect. He was also educationally backward and somewhat a loner with no close friends. He is very unsophisticated. His problem was exacerbated when he started drinking at an early age which escalated when he was assaulted the first time at 17-18. Following his recent assault his mental condition has deteriorated and appears to be compounded by the exhaustive stress of trial process and adverse publicity in the papers. The effect of the ordeal of finding himself tied and raped and fear for his life fit in classically with a Stressor to make up a diagnosis of Post Traumatic Stress Disorder. Given his past history of emotional lability there is a very substantial risk of suicide and he needs to be referred for expert help promptly. The prognosis is uncertain."

The offence itself involved the applicant in an abuse of trust, not in the sense that he misused his position as a member of the clergy to ensnare the victim, but in the sense that the latter being in such a drunken condition that he was unable to take care of himself, the applicant took him out of the protective concern of the three women who found him outside the hotel, placed him in his own charge, ostensibly to protect him, but instead of doing so, subjected him to a series of depraved and degrading acts extending over a period of about eight hours. The complainant was rendered helpless by having his hands tied behind his back, he was stripped, sexually assaulted several times, plied with alcohol to reduce his capacity to resist, and finally dumped in the street with his hands still tied and his head covered by a pillow case. Given his vulnerable nature and background, it is not surprising that the impact this experience had upon him was very severe. He was not spared the distress of recounting it by the applicant's exercise of his right to a trial and the applicant at no stage showed any contrition or remorse for the deeds which the jury were satisfied he had committed. The applicant could expect no leniency on the score of consideration for the complainant or of remorse. In Bowden v R [1968] Tas SR 192 (NC 15) 46/1968, the Court of Criminal Appeal upheld a sentence of eight years' imprisonment imposed for a single count of rape. Burbury CJ said: "There are some crimes which irrespective of the youth and previous good character of the offender must be visited with a long gaol sentence, and rape is one of them. The crime of rape is always serious but like every other crime varies in seriousness according to the circumstances of the particular case. Something has been said about standardisation by counsel for the applicant. Standardisation is impossible. It has been emphasised, both in England and in New South Wales by the Courts in recent times that in considering the appropriate sentence for a crime of violence of this kind, the sense of public outrage as to such actions cannot and ought not to be left out of account. It is not a simple matter of looking at questions of deterrence and reform. In fact sentences for the crime of rape have been considerably higher in England and in other States of Australia than in Tasmania. In New South Wales the maximum sentence for rape is life, and I believe it is the same situation in Queensland, and very long sentences have in fact been imposed."

His Honour regarded that as a bad case of rape in which the applicant had threatened an innocent fourteen year old schoolgirl with a knife and had raped her with callous brutality. No remorse was expressed by Bowden and psychiatrists said that they feared he might offend again. Burbury CJ said that the learned sentencing judge in those circumstances "took into account not only the seriousness of the crime itself, but he also took into account the question of personal deterrence as a very important one. His sentence in one sense ought I think to be regarded as a preventive detention." Professor Warner in her book, Sentencing in Tasmania, notes in para12.506 that in the period 1978-1989 sentences of seven years were the highest imposed for one count of rape. In para12.507 she notes that global sentences for multiple counts of rape and rape and other offences were, on one occasion, as high as twenty years and fourteen years in respect of two joint offenders for a particularly atrocious course of conduct including abduction, aggravated burglary, causing grievous bodily harm, indecent assault and rape (Watson and Curtis, 2 December 1986). The vast majority of multiple counts did not attract sentences exceeding seven years and multiple counts of rape committed in company ("pack rape") attracted sentences of five to seven years. Convictions for homosexual rape in this State are not frequent. In 1975 Neasey J imposed sentences totalling two years on a prisoner who, without his consent, sodomised a fellow prisoner on two occasions in the gaol (Gill, 11 April 1975). In Carter's Australian Sentencing Digest (LBC 1985), s407, a number of cases of "prison rape" and other non-consensual anal penetrations are noted in which head sentences of eight years or more have been imposed (Clark and Cathro - 407.01.N1 - fifteen years and eleven years; Glasby and Hines - 407.01.N2 - eight years and seven years; George and Price - 407.01.N6 - eight years and six years; Priestly - 407.01.N7 - eight years; Stevens - 407.01.N8 - fourteen years; Cruse - 407.01.N13 - eight years; Riley - 407.01.V3 - seven years; Yule - 407.01.V4 - seven years; Shores - 407.01.V6 - thirteen years and six months).

In the present case, although little physical injury was done to the complainant, he was bound and held captive for a lengthy period of time during which anal penetration, in addition to other indignities, was inflicted on four occasions and severe emotional distress and embarrassment was caused. Nevertheless, unlike the case of Bowden where a sentence in the nature of preventive detention was imposed because of the risk that he might commit further offences, there is no reason to suspect that the applicant would only be deterred from repetition by a very lengthy sentence. In respect of the severe sentences for prison rape, the Court of Criminal Appeal in New South Wales placed emphasis on the need for a strong deterrent to protect prisoners from other predatory prisoners confined in the same cell (see Glasby and Hines (supra) and George and Price also reported at (1981) 4 A Crim R 12). The same emphasis was expressed in the South Australian prison rape case of Fern (1989) 51 SASR 273 where a sentence of twelve years' imprisonment was reduced to one of eight years' imprisonment. Grave though the applicant's conduct was, I think having regard to the pattern of sentencing for cases of heterosexual rape and to the reasons for distinguishing the need for the same severity as is exhibited by the prison rape cases referred to by Carter (supra), a sentence of eight years' imprisonment in the circumstances of this case was unnecessarily severe and can fairly be described as manifestly excessive. I would grant leave to appeal and substitute a sentence of six years' imprisonment on the indictment.

Order [the other judges not agreeing on the sentencing point]

Orders of the Court
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted.
3. Appeal against sentence dismissed.

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