Collins v The Queen

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane,Gordon JJ.,Edelman J.
• Judgment Date: 09 May 2018
• Neutral Citation: [2018] HCA 18
• Court: High Court
• Docket Number: B68/2017
• Date: 09 May 2018

John Collins

Appellant

and

The Queen

Respondent

[2018] HCA 18

Kiefel CJ, Bell, Keane, Gordon AND Edelman JJ

B68/2017

HIGH COURT OF AUSTRALIA

Criminal law — Appeal against convictions — Jury direction — Prior inconsistent statement — Where appellant indicted for indecent assault, aggravated indecent assault and rape — Where consent main issue at trial — Where complainant made preliminary complaints to mother and others — Where mother gave evidence at committal hearing — Where mother gave different account at trial — Where trial judge directed jury committal evidence could only be used to assess mother's credibility — Where mother confirmed at trial she had given that evidence at committal and her memory was better at committal — Whether mother actually adopted committal evidence — Whether prior inconsistent statement available to jury to assess complainant's credibility — Whether trial judge misdirected jury.

Criminal law — Appeal against convictions — Application of proviso — Where Court of Appeal found erroneous jury direction — Where prosecution disavowed reliance on proviso — Where Court of Appeal applied proviso without notice and notwithstanding disavowal — Whether Court of Appeal bound to put appellant on notice of possibility of applying proviso.

Words and phrases — “preliminary complaint”, “prior inconsistent statement”, “proviso”, “substantial miscarriage of justice”.

Criminal Code (Q), ss 337, 349, 352, 668E(1A).

Representation

P J Callaghan SC with D K Fuller for the appellant (instructed by Legal Aid Queensland)

M R Byrne QC for the respondent (instructed by Director of Public Prosecutions (Qld))

1 Kiefel CJ, Bell, Keane AND Gordon JJ. The appellant was tried before the District Court of Queensland (Judge Farr SC and a jury) on an indictment that charged him with indecent assault 1 (count one), aggravated indecent assault 2 (counts two and three) and rape 3 (count four). The offences were alleged to have been committed against the same complainant on the evening of 11 January or the morning of 12 January 2000. The trial commenced on 27 October 2014. On 30 October 2014 the jury returned verdicts of guilty on each count. The appellant was sentenced to a term of nine years and four months' imprisonment on the conviction for rape, and to shorter concurrent sentences on the remaining convictions.

2 The appellant appealed against his convictions to the Court of Appeal of the Supreme Court of Queensland (Gotterson and Morrison JJA and Burns J) on a single ground which challenged the directions given to the jury concerning the use that could be made of the evidence of the complainant's mother, Ms M, of her daughter's preliminary complaint to her. The challenge succeeded. Nonetheless, the Court of Appeal found that the misdirection had not occasioned a substantial miscarriage of justice and the appeal was dismissed under s 668E(1A) of the Criminal Code (Q) (“the Code”): the “proviso” to the common form criminal appeal provision. The Court of Appeal did not put the appellant on notice that it was disposed to dismiss the appeal under the proviso. This was so notwithstanding that on the hearing of the appeal the prosecutor had submitted that, if the appellant's challenge succeeded, it could not be said that no substantial miscarriage of justice had actually occurred 4.

3 On 17 November 2017, Gageler, Nettle and Gordon JJ granted the appellant special leave to appeal to challenge the Court of Appeal's determination to dismiss the appeal under the proviso. By notice of contention, the respondent seeks to have the Court of Appeal's order affirmed on the ground that the trial judge's directions concerning Ms M's evidence were correct. For the reasons to be given, the respondent's contention is rejected and the appellant's ground succeeds; it was an error to dismiss the appeal without giving the appellant the

opportunity to address the Court on the reasons why it should not find that no substantial miscarriage of justice had actually occurred.

4 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. That consideration does not support the conclusion that there has been no substantial miscarriage of justice. It follows that the appeal must be allowed and a new trial ordered 5.

The evidence

5 The following summary of the evidence is drawn largely from Burns J's reasons in the Court of Appeal. The appellant was aged 61 years at the date of these events and the complainant was aged 19 years. The appellant was living on a yacht moored at a marina in Southport. He placed an advertisement in a newspaper for a nanny to accompany him and his partner and their child on a sailing trip to the Whitsundays. The complainant saw the advertisement and contacted the appellant and expressed her interest in the position. It was agreed that she would attend for an interview the following day.

6 The complainant brought her friend AJ and AJ's young son with her to the interview, which was conducted on board the appellant's yacht. After the interview, the appellant took them to a club and bought them some drinks. Later that evening, the appellant telephoned the complainant and suggested that she return to the yacht and spend some time with him in order to see whether “personality wise” they could live together at sea. She declined to do so at that time.

7 The complainant returned for that purpose about a week later on 11 January 2000. On this occasion, she travelled alone. The appellant collected her by car from the train station and they drove to the marina. On the way they stopped at a hotel where they had “a couple of drinks”. After this, they purchased supplies of alcohol and groceries. By the time they arrived at the yacht it was dark. They drank some more alcohol before leaving the yacht to go to dinner at a nearby restaurant. The restaurant was fully booked and they returned to the yacht, where the appellant cooked a meal. They ate, talked and continued drinking.

8 At about 11:00 pm the complainant was feeling a “bit drunk”, a “bit tired” and “ready for bed”. She knew that she had had enough to drink and that it was “time to stop”. She asked the appellant whether she could shower and he directed her to the bathroom adjoining his bedroom. After she had removed all her clothes, the appellant entered the bathroom and took hold of her and pushed her onto the bed, telling her that he wanted to shave her. The complainant protested. The appellant had hold of a pair of electric clippers and he proceeded to shave her pubic area despite her protests, telling her that he would make her look good. This conduct was charged in the first count.

9 After being shaved, the complainant went back to the bathroom and showered. She then returned to the dining area of the yacht, where she and the appellant had “a couple of drinks”. The complainant then said that she would like to go to bed. At this point, the appellant “dragged” her to his bedroom. She tried to stop him, saying that she did not want to go with him but he persisted. He removed her pants and pushed her onto the bed. He took off his trousers and straddled her, placing his penis in her mouth. This conduct was charged in the second count. The appellant then pulled the complainant's legs apart and licked her vagina. This conduct was charged in the third count. The complainant continued to protest and tried to close her legs but the appellant “kept pulling them apart”. The appellant then penetrated the complainant with his penis. This conduct was charged in the fourth count.

10 After these events, the appellant told the complainant that she should sleep at the other end of the yacht, as he snored. She did as instructed. On 12 January 2000, when the complainant woke, the appellant was not on the yacht. He sent her a text message asking her to clean up the yacht and telling her that there was a key for the shower at the marina. After cleaning the yacht, the complainant went to the marina and had a shower. While she was there she received a telephone call from AJ. The complainant gave the following account of her conversation with AJ:

“I told her that [the appellant] raped me last night and that I'm scared and I don't know what I'm doing and I don't know where I am.”

11 AJ suggested that the complainant arrange for her to come to Southport. The complainant telephoned the appellant and asked him to collect AJ from the station. The appellant collected AJ and drove her to the yacht. AJ told the appellant that the complainant needed to go home because her “nan” needed her to come back and help her. The complainant and AJ caught a bus to the station and returned home.

12 The complainant telephoned her mother on 12 January 2000 (“the telephone call”). She recalled saying “Mum, he raped me” and she was “pretty sure” that she told her mother that she had been “silly” and that she “shouldn't have gone down [to Southport]”. This was all that the complainant could remember of the telephone call. She was not challenged in cross-examination on this aspect of her evidence.

13 The complainant made a statement to the police on 28 January 2000 and, on the same day, the police executed a search warrant on the appellant's yacht. Among the items located were electric clippers and a quantity of alcohol. Scientific examination of the clippers revealed the presence of the complainant's DNA on the blades.

14 The appellant did not give or call evidence in his defence. He made a formal admission that on the evening of 11 January 2000 or the morning of 12 January 2000 he engaged in sexual...