The High Court has allowed an appeal by a man convicted of four counts of sexual offences, including rape, alleged to have been committed in January 2000. The complainant, then aged 19, answered a newspaper ad for a nanny to accompany the accused, then aged 61, his partner and child on a sailing trip, After an initial interview, the complainant returned for a further interview a week later. According to the complainant, at around 11pm on the yacht, she had a shower and was then shaved and raped by the accused. The prosecution case included comments she made the next morning to a friend and her mother the next morning, and the results of a police search warrant on the yacht two weeks later that found a razor with her DNA on it. At the trial, the accused formally admitted that he and the complainant had had sex on the yacht that evening.

At the trial in 2014, the complainant’s mother testified that, on the morning after the alleged rape, the complainant ‘phoned me to tell me that she had been raped’. In cross-examination, she was given a transcript of evidence that she she gave at the accused’s committal in 2007, where she had said that the complainant had told her that morning that ‘I think I have been raped’ and that ‘I had some wine and I felt funny and I don’t remember every – anything after a certain time’. Asked if she agreed that she gave that evidence, she said that she did. This part of the cross-examination concluded:

When you gave evidence back on the 21st of September 2007, was better than it is now? Yes. I would say so, yes.
And when you gave that evidence, that was the best recollection you could give to the court of what she said to you? Yes. I would say so, yes.

The trial judge directed the jury on this exchange as follows:

That inconsistency between what the mother told the committal court seven years ago and what she told today, depending upon your view of it, impacts, potentially upon the mother’s credibility and reliability. But what the mother said to the committal court seven years ago is not evidence of the fact that the complainant said those things to her. It’s not evidence of the truth of the contents of the statement if you can follow that logic. It impacts upon the particular witness’s credibility who’s giving the evidence.

On appeal, the Queensland Court of Appeal accepted that the trial judge’s direction was incorrect, but dismissed the appeal on the ground that the misdirection caused no substantial miscarriage of justice to the accused.

The High Court (Kiefel CJ & Bell, Keane & Gordon JJ, Edelman J concurring) first considered whether or not the trial judge misdirected the jury. Under Queensland evidence law, a prior inconsistent statement is only relevant to a witness’s credibility, but may be used as evidence of the truth of the earlier statement if it was ‘adopted’ by that witness at the trial. The plurality ruled (at [27, Edelman J agreeing at [39]]) that the Court of Appeal did not err in holding that the complainant’s mother adopted her 2007 testimony by accepting that the earlier testimony was likely to be better than her current memory and that she had endeavoured to give her best recollection in 2007. At [4], the plurality observed: ‘It is now more than 18 years since the date of the alleged offences. In the circumstances, the parties were agreed that, should the appeal succeed, the matter should not be remitted to the Court of Appeal; this Court should consider for itself whether notwithstanding the misdirection no substantial miscarriage of justice actually occurred.’

Accordingly, the plurality considered whether the Court of Appeal was right to nevertheless dismiss the accused’s appeal. One issue was that the Court of Appeal dismissed the appeal despite the prosecution’s concession that the trial judge’s direction, if incorrect, caused a substantial miscarriage of justice to the accused. The plurality held that ‘The Court of Appeal was not bound by the prosecution’s concession, but it was obliged to put the appellant on notice that, notwithstanding the concession, dismissal under the proviso remained a distinct possibility, and to give the appellant an opportunity to persuade it against taking that course.’ ([32]). Next the plurality held that the Court of Appeal erred in taking into account that the defence had not put the 2007 version of the telephone conversation to the complainant herself in cross-examination; defence counsel ‘was not bound to do so’ as it did not then know whether or not the complainant’s mother would adopt the 2007 account and, anyway, ‘it is not apparent that the omission bears on the determination of whether no substantial miscarriage of justice actually occurred’ ([35]). The plurality then held (at [36], Edelman J agreeing at [44]]) that the Court of Appeal could not give weight to the jury’s guilty verdict ‘[w]here, as here, proof of guilt is wholly dependent on acceptance of the complainant and the misdirection may have affected that acceptance’. Finally, the plurality (at [37])) held that the remaining matters the Court of Appeal considered – the other complaint evidence and the complainant’s DNA on the razor (which was consistent with both accounts) – ‘did not bear relevantly on the issue of consent’. The plurality allowed the appeal on the ground that ‘Proof of guilt was wholly dependent on the complainant’s evidence’ and that the appeal court ‘paid insufficient regard’ to the natural limitations of appellate review. ‘It cannot be concluded that no substantial miscarriage of justice actually occurred.’

Justice Edelman’s concurrence agreed (at [39] and [40]) with the plurality on the misdirection and the prosecution’s concession about the proviso. In relation to the application of the proviso, he noted his dissenting view in Kalbasi v Western Australia [2018] HCA 7 that the test was whether a conviction was inevitable, rather than whether the court was satisfied of the accused’s guilt beyond reasonable doubt. He observed (at [42ff]) that ‘It is unnecessary in this case to consider whether there is any difference in theory or application between the two formulations’, but observed that ‘the ultimate question must be whether there was a substantial miscarriage of justice’ and that ‘The prospect of any difference in result is… reduced substantially by the requirement that the appeal judge take into account the verdict of the jury’. Observing that the judge’s misdirection was ‘not fundamental’, he held that it was nevertheless ‘significant’ as ‘the evidence given by the complainant’s mother in 2007 could have affected the jury’s assessment of the reliability of the complainant’ and that ‘Particularly due to the natural limitations of appellate review where issues of credibility are involved, it was not inevitable that the jury, acting reasonably, would have convicted without the misdirection.’

The Court therefore unanimously ordered that the accused’s conviction and the dismissal of his appeal be quashed, and ordered a new trial.