R. V KERIM

426 1988
R. v. KERIM
[C.A. 135/1987]
Court of Criminal Appeal (Andrews C.J., Macrossan J., McPherson J.)
11,13 August; 26 October 1987
Criminal Law and Procedure – Evidence – Corroboration – What constitutes – 5
Rape and indecent dealing – Medical examination of
vagina – Allegedly untrue statements by accused – Availability to
accused of distinctive brand of condoms – The Criminal Law
Amendment Act of 1891 ss 4, 6 – The Criminal Code s.1 –
Criminal Law (Sexual Offences) Act 1978. (A.Dig [416]). 10
The appellant was charged (counts two and three in the indictment) with raping the
complainant, his stepdaughter then aged almost fifteen, during an evening in a motel room
and with unlawfully and indecently dealing with her during the following morning. He was
also charged (count one) with unlawfully and indecently dealing with her during a period
which ended almost three years before. 15
The complainant was medically examined seven days after the alleged rape when it was
found that her hymen was broken. There was no evidence as to when or how that had
occurred. The trial judge directed the jury that the medical evidence was capable of
corroborating the complainant’s evidence as to all charges.
The motel room was furnished with a double bed and a single bed. The complainant
alleged that the rape had occurred in the double bed. B. gave evidence that he had made up 20
the single bed in a particular way and it was still so made up after the appellant and the
complainant vacated the room. The appellant stated to the police that the complainant had
slept “in” the single bed. At the trial he gave evidence that she slept “on” that bed. The trial
judge directed the jury that if they found that the appellant had been knowingly untruthful in
his statements to the police, and in doing so was displaying guilty knowledge, then evidence
of such statements was capable of corroborating the complainant’s evidence as to counts two 25
and three.
There was evidence that on the afternoon immediately preceding the evening of the
alleged rape, the appellant had visited a particular pharmacy. The complainant gave
evidence that during the alleged rape he used a condom. She gave a detailed description of a
packet of condoms she claimed to have seen in the motel room. Such description matched
that of a packet later obtained by the police from the pharmacy. The pharmacist gave 30
evidence that such a packet was obtainable at the pharmacy on the afternoon in question.
The trial judge directed the jury that the pharmacist’s evidence was capable of corroborating
the complainant’s evidence as to counts two and three.
The appellant was convicted of each charge.
Held, allowing the appeal and ordering a new trial:
(1) (McPherson J. diss.) That before evidence can be held to be corroborative it must
35
show or tend to show that the complainant’s evidence of the commission of the relevant
offence was true as to a material particular and that the accused was implicated in the
commission of the offence.
R. v. Baskerville [1916] 2 K.B. 658, 667; R. v. Berrill and others [1982] Qd. R. 508 followed.
(2) (McPherson J. diss. as to counts two and three) That the medical evidence was not 40
capable of constituting corroboration as it did not connect the appellant with any of the
offences charged.
(3) That evidence of answers by the appellant and as given by him on the subject of where
he and the complainant slept should not have been left to the jury as corroborative, the
evidence of B. being no more than neutral as to whether she might have slept “on” the single
bed, so that untruthfulness by the appellant was not clearly shown. Untruths or false denials, 45
with nothing else are not corroborative. In any event, such evidence was of such little weight
compared with the prejudice it might create as to call for its exclusion from consideration by
a jury in a proper exercise of a trial judge’s discretion.
R. v. Lucas [1981] Q.B. 720, 723; R. v. McK. [1986] 1 Qd. R. 476. 482; R. v. Fellowes,
Jackson, McGeough and Buttigieg [1987] 2 Qd. R. 606 followed.
(4) That the evidence of the pharmacist and of the police officers who obtained the packet 50
had been properly left to the jury as corroboration of the complainant’s evidence as to counts
two and three.
Whether the allegedly corroborative evidence must implicate the accused when his
identity is not in issue discussed by McPherson J.
CASES CITED 55
The following cases are cited in the judgments:
Broadhurst v. The Queen [1964] A.C. 441.
1 Qd.R. R. v. KERIM 427
426 Andrews C.J.
Buck (1982) 8 A.Crim.R. 208.

Chui Nang Hong v. Public Prosecutor [1964] 1 W.L.R. 1382.
Cooper (1914) 10 Cr. App.R. 195.
D.P.P. v. Boardman [1975] A.C. 421.
5 Eade v. The King (1924) 34 C.L.R. 154.
Eather v. The King (1914) 19 C.L.R. 409.
Edmunds v. Edmunds [1935] V.L.R. 177.
Hicks v. The King (1920) 28 C.L.R. 36.
James (1970) 55 Cr.App.R. 299.
10 Kelleher v. R. (1974) 131 C.L.R. 534.
Peacock v. The King (1911) 13 C.L.R. 619.
Perera (1982) 6 A.Crim.R. 225.
R. v. Abbott (1898) 9 Q.L.J. 92.
R. v. Baskerville [1916] 2 K.B. 658.
15 R. v. Berrill and others [1982] Qd. R. 508.
R. v. Christie [1914] A.C. 545.
R. v. Collings [1976] 2 N.Z.L.R. 104.
R. v. Davy (1964) 84 W.N. (Pt. 1) N.S.W. 42.
R. v. Farrelly [1954] N.Z.L.R. 1.
20 R. v. Fellowes, Jackson, McGeough and Buttigieg [1987] 2 Qd. R.
606.
R. v. Freeman & Ors [1980] V.R. 1.
R. v. Grills (1910) 11 C.L.R. 400.
R. v. Hartley [1941] 1 K.B. 5.
25 R. v. Hester [1973] A.C. 296.
R. v. Kilbourne [1973] A.C. 729.
R. v. Lee [1917] St.R.Qd. 102.
R. v. Lindsay (1977) 18 S.A.S.R. 103.
R. v. Lucas [1981]Q.B. 720.
30 R. v. McGee (1895) 6 Q.L.J. 151.
R. v. McK. [1986] 1 Qd. R. 476.
R. v. Mitchell (1952) 36 Cr.App.R. 79.
R. v. Roberts & Ors C.C.A. 59, 76, 58, 75, 56, 80, 53, 83, 55, 79, 54,
78, 57, 77, 66, 81, 67, 82/1975, unreported.
35 R. v. Stratford and McDonald [1985] 1 Qd. R. 361.
R. v. Tripodi [1961] V.R. 186.
R. v. Ian Robert Williams Q.L.R. 25/7/87.
R. v. Witham [1962] Qd. R. 49.
Ridley v. Whipp (1916) 22 C.L.R. 381.
40 Tumahole Bereng v. The King [1949] A.C. 253.
Woon v. The Queen (1964) 109 C.L.R. 529.
The following additional cases were cited in argument:
R. v. Donaldson (1977) 64 Cr.App.R. 59.
R. v. Lee (1950) 82 C.L.R. 133.
45 R. v. McDermott (1948) 76 C.L.R. 501.
R. v. Parker C.C.A. 91/1981, unreported.
CRIMINAL APPEAL
S. E. Herbert for the appellant.
N. H. Pratt for the Crown.
50 C.A. V.
ANDREWS C.J.: The appellant was tried on 5, 6 and 7 May 1987 on
five counts to all of which he pleaded not guilty. The first was that on a
date unknown between 1 January 1980 and 31 December 1983 near
Taroom he unlawfully and indecently dealt with a girl under the age of
55 fourteen years. The girl was at all material times his stepdaughter. She was
born on 27 January 1972. The second charge was that on or about 1
October 1986 at Gladstone he committed rape on the same girl. The third
428 R. v. KERIM 1988
Andrews C.J.
was that on or about 2 October 1986 at Gladstone he unlawfully and

indecently dealt with her, she being a girl under the age of sixteen years.
The fourth was that on or about 3 October 1986 near Taroom he
committed rape upon her and the fifth that on or about 4 October 1986
near Taroom he unlawfully and indecently dealt with her, she being a girl 5
under the age of sixteen years. He was convicted on the first three counts
and acquitted of the others.
Evidence for the prosecution was to the effect that during the period of
four years specified which began about twenty-six days before the
complainant girl’s eighth birthday and ended about twenty-seven days 10
before her twelfth birthday the appellant inserted a finger into her vagina
on numerous occasions at the family home near Taroom. The Crown
relied upon one of such occasions, not specifying which, as constituting
the first count. The procedure was not objected to and particulars were
not insisted upon. The offence constituting the second count was alleged 15
to have occurred during the evening of a day on or about 1 October 1986
at the Arkana Motel at Gladstone in accommodation shared by the
complainant and the appellant. The third count alleged an offence similar
to that in count one while the complainant and appellant were still at the
Arkana Motel but in the morning following the evening when rape was 20
alleged to have occurred. The offences described in the fourth and fifth
counts were alleged to have occurred at the family home near Taroom
respectively on or about 3 and 4 October 1986.
Apart from the complainant and the appellant there were no
eye-witnesses of any of the alleged acts complained of. The appellant 25
made no admissions, although it was and is contended that statements
made by him during an interview which was recorded by police were
untrue and that his making untrue statements was demonstrative of guilt
and therefore corroborative of the complainant’s evidence in particular
as to the bed which she occupied during the time when it was alleged that 30
rape of which the appellant was convicted occurred, but ultimately as well
of her evidence that it did occur.
Evidence revealed that the motel unit occupied at the relevant times by
the appellant and the complainant contained a double bed and a single
bed. The complainant said that the alleged rape occurred in the double 35
bed. The appellant said that at the relevant times he occupied the double
bed and the girl the single bed.
A witness named Budge gave evidence to the effect that the single bed
was made up and remained made up. He said to the effect that he had
made the bed and that he made beds up in a particular way and that the 40
single bed was in that same made-up state the following morning.
Something was sought to be made on behalf of the Crown of a statement
made by the appellant when being first interviewed by police that on the
occasion referred to the girl slept “in her bed”; “in the single bed in the
motel”, and that he slept “on the double bed”. In his evidence in chief the 45
appellant said to the effect that at the end of the evening the girl had been
“on her single bed” watching television and that he told her to switch it off
and switch the lights off when she had finished with it; that she did this
not very long afterwards and he “just assumed that she slept on her bed”.
He said that when he awoke in the morning she was lying on the single bed 50
with a cover or blanket or something over her feet. It was contended that
this evidence was capable of demonstrating that he had made a false
denial to police when being questioned by them as to beds occupied by
himself and the complainant on the night in question.
There was medical testimony to the effect that when examined on 8 55
October 1986 at 11.00 a.m. by a Dr Lesley Smith the girl was found not to
be in a virginal state. Dr Smith said that there was no sign of any recent
426 Andrews C.J.
disturbance whatever but that the girl’s hymen had been displaced at
some time. Her evidence was to the effect that this would have occurred
not later than one month prior to this examination, but the girl’s evidence
was such that it could not be suggested that there had been any
5 penetration of her vagina by the appellant for a considerable period being
not less than two years and nine months previously. Dr Smith said the
tearing of the girl’s hymen could have been accompanied by a small
amount of blood loss. The girl gave evidence to the effect that on the first
occasion when the appellant effected penetraton by his finger of her
10 vagina “there was blood all over the sheets and when I put my pants on it
was on my pants”. According to her evidence the appellant directed her to
wash both sheets and pants and she said that she washed them in a
washing machine. Dr Smith’s evidence seemed to me to be to the effect
that that evidence, if acceptable, would demonstrate that there had been a
15 tear of the vulva. In answer to a question by the learned trial judge she
agreed that this would be consistent with a tear of the hymen. I think that
one might reasonably assume that this meant that displacement of the
hymen might have occurred when the vulva was torn. The jury was
directed that evidence of the displacement of the hymen could be
20 corroborative of the girl’s testimony as to all alleged offences.
There was evidence from the complainant to the effect that on the
morning after the alleged rape at the Arkana Motel she observed a packet
of condoms on a bedside table. She told police officers investigating about
this. There was evidence that she was familiar with condoms. There was
25 also evidence that at a pharmacy at Gladstone where the appellant had
bought aftershave such condoms were on display. The girl gave an
accurate description of the condom packet. The chemist concerned gave
evidence that such packets of condoms were obtainable at this store. In
addition to her description of the packet the girl was able to say that the
30 words “for her pleasure” appeared on the packet. The chemist, one
William John O’Reilly, in his evidence stated that some of the packets
kept by him were similar in colour and otherwise as to description to the
packet referred to by the girl. He said that such packets bore the words
“textured for her added pleasure”. The girl was able to state that the sale
35 price appearing on a sticker on the packet was $4.99. Mr O’Reilly said
that he had them on sale at that price and that the original price had been
$5.87 per packet demonstrated on stickers which were on the packets
when they were received by him. The stickers placed by him on the
packets were of the colour described by the complainant girl. O’Reilly was
40 unable to say that he had sold any such packets on the day when the
appellant would have been in his shop purchasing aftershave.
Grounds of appeal set out in the appellant’s notice were as follows:
“1. The verdict of the jury was unreasonable and cannot be
sustained having regard to the evidence and to the weight of
45 the evidence.
2. The learned trial judged erred in law in ruling admissible, or,
in the alternative, failing to exclude in the exercise of judicial
discretion evidence of a conversation between the accused
person and one Jackson.
50 3. The learned trial judge erred in law in his directions to the jury
concerning corroboration as to the following matters:
(a) The nature of corroboration;
(b) What evidence before the jury could, at law, amount to
corroboration.”
55 Ground one was not argued.
The learned trial judge was conceded by counsel for the appellant to
have directed the jury correctly that as a matter of law it would be
430 R. v. KERIM 1988
Andrews C.J.
dangerous to act on the uncorroborated testimony of the complainant.

This direction was made in relation to all counts. His Honour went on to
say that there is no rule of law which “says that you cannot convict
without corroboration” but that the jury was required to scrutinise the
evidence of the complainant carefully and that they might convict after 5
being satisfied of its truthfulness. The learned trial judge gave directions
as to corroboration which were not criticised and which, with respect, I
would say were correct as far as they went. He said as follows:
“What is corroboration? The law defines what uncorroborated
testimony is. ‘Uncorroborated testimony’ is testimony which is 10
not corroborated in some material particular implicating the
accused person. ‘Corroboration’ is independent evidence; that is,
evidence coming from a source other than the complainant, which
confirms or tends to confirm, supports or tends to support, the
evidence of the complainant that she was wronged in a sexual 15
manner by the accused person about whom the complaint is
made.”
His Honour also directed the jury that it was for him to direct its
attention to evidence which in law is capable of amounting to
corroboration but it was for the jury to say whether it did amount to 20
corroboration.
One of the major arguments in support of the appeal had to do with the
evidence as to the state of the girl’s hymen and whether it corroborated
her story. As to this his Honour said:
“The first aspect of the evidence which in law is capable of 25
amounting to corroboration is of a general nature. Now, that
evidence which in law is capable of amounting to corroboration
and is of a general nature is the evidence by Dr Smith that the child
is not a virgin. That is that her hymen was not intact. Now, I say
’evidence of a general nature’ because it does not relate to any 30
specific events which are referred to in these five counts in the
indictment.”
His Honour made reference to the various events which were said to
constitute the offence alleged in the indictment and evidence given by the
complainant girl as to such matters. He then informed the jury that it 35
demonstrated generally the nature of the interference which the girl said
occurred at the hands of the appellant. He then went on to say:
“Now, consistent with the requirement that the jury should look for
corroboration before it can convict, you say to yourselves, ‘Well, if
that in fact occurred you would expect her to have had her hymen 40
broken’, and in fact the evidence of Dr Smith indicates that her
hymen is broken. So you the jury are capable of looking at that
aspect of the evidence and saying to yourselves, ‘That does tend to
confirm or does tend to support her story generally that she was
sexually interfered with in the manner in which she has 45
described’.”
His Honour plainly left it to the jury as a matter of law that the state of
the hymen could be regarded as corroborative of the girl’s evidence which
must be to the extent necessary as laid down in the cases. Although he was
then careful to point out, as to the factual aspect of that evidence, that 50
they should keep it in mind that a hymen might be broken without any
sexual interference at all and that if they came to such view that evidence
could not carry the matter very far he clearly left it open to them to find
her corroborated by this evidence as to each and every count.
Bearing in mind that at the time when she was examined by Dr Smith 55
on 8 October 1986 the girl was aged fourteen years and eight months and
also that so far as Dr Smith was concerned she was of normal
426 Andrews C.J.
development for her age; bearing in mind as well the pranks at school
concerning condoms described by her in her evidence, she was not
ignorant of conduct amounting to sexual activity and having regard
overall to the period of time during which the events prior to 1 October
5 1986 had taken place it seems to me that it was erroneous in law to leave
the evidence as to the state of her hymen to the jury as capable of being
corroborative.
The evidence, of course, was admissible as being consistent with the
story told by the girl but in my view it went no further. For the girl to say
10 that apart from the matters complained of she had had no sexual
experience which might account for the state of her hymen amounts to
self-corroboration. In a sense this evidence could be described as
corroborative but not in the circumstances of this case to the extent which
is necessary in order to render it capable of linking the appellant with the
15 commission of the offences alleged. There is insufficient detail available
from her physical state to show that the injury happened at any particular
time or place or in such circumstances as to link the appellant causally
with the damage and thus with an act complained of. That is not to say
that the physical condition of a girl in this context could never be regarded
20 as corroborative. There is a wide range of circumstances in which such
evidence might be seen to point positively to an accused person being
linked to what is alleged against him. The requirement is that the
evidence links him with an act done in the course of the commission of the
offence as described by the witness who is to be corroborated. What is
25 sufficient will depend upon circumstances. For example, there will be
cases in which independent proof of the presence of an accused and of his
having the opportunity to commit the subject offence will suffice but
there are other cases where it plainly will not. For example, evidence that
a parent or guardian and child were present together in a not unusual
30 domestic or quasi-domestic situation would simply not be corroborative
of the evidence of the child of sexual misconduct towards her by the
parent or guardian. If however, she said the misconduct resulted in injury,
evidence of a third person as to the existence of such an injury a short time
after the events alleged, would be corroborative being independent
35 evidence to link the accused with an act performed in the commission of
the offence. Without it the mere presence of the parent or guardian would
be consistent with the evidence of the child but would not “implicate”
him in the commission of the offence alleged. These are matters which
have been canvassed fairly recently in this Court in R. v. Berrill and Ors.
40 [1982] Qd. R. 508. In Berrill’s case the use of corroborative evidence upon
trial of a charge of rape was discussed at some length. In that trial the
principal issue was whether or not the complainant woman had consented
to sexual intercourse. In this case the main issue was whether or not sexual
activity complained of took place at all because it was common ground
45 that the appellant by reason of his relationship with the complainant girl
undoubtedly had ample opportunity to commit any of the offences
complained of. In such a case statements referring to implication of an
accused person or identification of an accused person as having
committed an offence have to be understood in context. What is needed
50 of the evidence complained about here is that it should show or tend to
show that the complainant’s evidence that the appellant committed the
relevant offence upon her is true as to a material particular before it can
be held to be corroborative. There is no requirement that the evidence
prove the case against the appellant but it must prove or tend to prove that
55 he was implicated in the commission of the offence. So far as the medical
testimony here is concerned the physical state of the girl was merely
consistent with her evidence. It was not probative of the appellant’s
432 R. v. KERIM 1988
Andrews C.J.
having caused the damage. There is no independent evidence as to time

and/or locale and/or conduct by the appellant to make the evidence of her
physical state sufficient to link him with the offence alleged.
In R. v. Roberts and Ors. (C.C.A. No.s. 59 and 76, 58 and 75, 56 and 80,
53 and 83, 55 and 79, 54 and 78, 57 and 77, 66 and 81, and 67 and 82 of 5
1975) judgment in which is unreported but which was handed down on 4
December 1975, D. M. Campbell J. at p.5 of his reasons having pointed
out that “uncorroborated testimony” is defined in the Code as meaning
“testimony which is not corroborated in some material particular by
other evidence implicating the accused person” went on to comment that 10
the word “corroboration” is not defined and that in R. v. Kilbourne [1973]
A.C. 729 Lord Hailsham L.C., at 740 said that corroboration by itself
means no more than evidence tending to confirm other evidence.
However, as was further pointed out by D. M. Campbell J., in a criminal
case where the offence is one requiring corroboration the evidence relied 15
upon for that purpose must implicate the accused person in relation to the
matter concerning which corroboration is necessary and thus in a rape
case as to carnal knowledge and non-consent. Hoare J. who was a member
of the court in that case agreed in this reasoning.
In R. v. Davy (1964) 84 W.N. (pt.1)N.S.W. 42, a decision of the Court 20
of Criminal Appeal in New South Wales, at 46, 47 the court said:
“The broad rule requires that in sexual cases there be some
testimony independent of that of the prosecutrix which affects the
prisoner by tending to connect him with the crime; that is evidence
direct or circumstantial which implicates him, which confirms in 25
some material particular not only evidence given by her that the
crime was committed but also evidence that the prisoner
committed it”.
In the leading case of R. v. Baskerville [1916] 2 K.B. 658 Lord Reading
C.J. at 667 said: 30
“We hold that evidence in corroboration must be independent
testimony which affects the accused by connecting or tending to
connect him with the crime. In other words, it must be evidence
which implicates him, that is, which confirms in some material
particular not only the evidence that the crime has been 35
committed, but also that the prisoner committed it.”
As was pointed out in Berrill’s case at 523 by McPherson J. the word
“implicate” used so often in statements in this context does not
necessarily mean to incriminate or to inculpate and the primary meaning
of the word is “involve” and that it was in that sense that the word 40
“implicate” was used in R. v. Baskerville.
As further appears in Berrill’s case at 508, statements in Baskerville’s
case established a requirement that corroborative evidence, to be
regarded as such, implicate the accused as a person who committed an
offence with which he is charged and not merely that it support the 45
evidence of a complainant or an accomplice as the case may be, as
generally truthful. Statements elsewhere in Baskerville to the effect that
what is required is additional independent evidence rendering it probable
that a complainant’s evidence is true and that it is reasonably safe to act
upon it, must be understood in context and it is as well to emphasise that 50
the evidence to be accepted must be such that it is reasonably safe to act
upon it. The Court of Criminal Appeal is to be so understood when in R. v.
Hartley [1941] 1 K.B. 5, 7 it ruled in effect that one must look to see
whether independent evidence claimed to be corroborative rendered it
probable that a complainant’s evidence was true, or was clearly evidence 55
which strengthened that of the complaint.
To be corroborative, in the sense applicable according to the criminal
426 Andrews C.J.
law of Queensland, evidence must corroborate the evidence of the

relevant witness in a material particular and it must implicate the
accused. This is consistent with what I understand to have been decided
in Berrill’s case and in R. v. McK. [1986] 1 Qd. R. 476. This Court has
5 consistently followed the statements in Baskerville’s case, more
particularly at 667 where Lord Reading C.J. said:
“The nature of the corroboration will necessarily vary according to
the particular circumstances of the offence charged. It would be in
high degree dangerous to attempt to formulate the kind of evidence
10 which would be regarded as corroboration, except to say that
corroborative evidence is evidence which shows or tends to show
that the story of the accomplice that the accused committed the
crime is true, not merely that the crime has been committed, but
that it was committed by the accused.”
15 Baskerville’s case had to do with corroboration of evidence given by an
accomplice but the statements made there are of quite general application
and are quite apposite here.
In Ridley v. Whipp (1916) 22 C.L.R. 381, 392 Isaacs J. referring to
Baskerville said as follows:
20 “So far the words of the learned Lord Chief Justice indicate that
corroboration of whatever statement requires corroboration must
be by independent testimony, and next that if it be required to
implicate a person in a given act, the independent testimony must
be such as of its own force to connect or tend to connect him with
25 the act.”
What I have said so far should not be interpreted as qualifying anything
laid down in Berrill’s case. Here the facts are in my view quite different.
Borderline cases will occur in which there is difficulty in determining
after careful scrutiny of the evidence whether corroboration should, in
30 law, go to the jury but the trial judge still has a discretion to admit or
exclude having regard to the weight which might reasonably be given the
evidence under consideration if admitted as corroborative bearing in
mind the prejudice which it might engender in the minds of jurors.
I stress that to be admitted as corroborative, evidence need not be such
35 as will prove the Crown case; that it is not essential that it “inculpate” or
“incriminate” the accused; that it is admissible although susceptible of
competing inferences, (see e.g. R. v. Stratford and McDonald [1985] 1 Qd.
R. 361; R. v. McK. [1986] 1 Qd. R. 476.) I am persuaded that this evidence
does not meet the tests laid down and should, in law, have been excluded
40 from the jury’s consideration as corroborative but that in any event it
would have been dangerous so to leave it because of its lack of weight.
I return now to the evidence of conversation recorded in a record of
interview and a comparison of it with what the appellant said in evidence
as to where he and the complainant girl slept on the occasion of their
45 staying at the Arkana Motel at Gladstone.
In his directions to the jury the learned trial judge, having referred to
this material as being an aspect of the evidence capable in law of
amounting to corroboration, discussed it in some detail. He read out to
them the following question and answer:
50 “Keryn also claims that you had sexual intercourse with her in the
Arkana Motel in Gladstone on the night of the 1st of October,
1986. I realise that you have already denied this taking place, but
on that night where did Keryn sleep? – In her bed.
What do you mean by her bed? – In the single bed in the motel.”
55 and continued thus:
“The accused’s evidence here is that she slept on the bed and not in
the bed and he meant that when he told the police officers as to
434 R. v. KERIM 1988
Andrews C.J.
where she slept. If you are satisfied beyond reasonable doubt that
the girl neither slept in the bed nor on the bed but in fact slept in the
bed with him and you are also satisfied that when he told the police
on what they allege are these four instances – that she slept in the
single bed that he was telling an untruth and he knew that he was 5
telling an untruth, that is what the law terms a false denial of a
proven opportunity. That false denial is constituted by his falsely
denying that she slept in bed with him. If you were satisfied that he
told that lie and he knew it to be a lie at the time, but you were also
satisfied that he was not telling that lie to cover up some 10
embarrassment about the fact that she slept with him, for example,
it is not right that a girl of her age should be sleeping with her father
– if you are also satisfied that that was not the reason he told the
lie, then you may infer from the fact that he told that lie which he
knew to be a lie and that he was indicating some sort of guilty 15
knowledge on his part as to what happened that night. As I say,
before you can infer such guilty knowledge you have to be satisfied
that he did in fact tell that lie to save himself from admitting
something other than just an embarrassing experience. Now, if that
is what you make of this evidence, that is his allegation that the 20
child had slept in the single bed; that you are satisfied that that
statement is false; that therefore he told the police lies about that;
that he knew that they were lies and that in doing so he was
displaying some sort of guilty knowledge of the events that
occurred, you may think that that tends to support what she says 25
occurred; that is that there was a sexual interference by him of her
in the manner in which she has stated. Again, as I say, it is a matter
for you even despite what I have said to you about being satisfied
that it was a lie and that he knew it to be a lie, that it wasn’t a lie at
all for the purposes of avoiding something embarrassing. It is still
30
ultimately for you as to whether you accept that as supporting her
evidence about his penetration of her in the circumstances in
which she outlined to you in evidence on oath before you.”
As to this I would say that his Honour was in error. The material was 35
not clearly shown to be evidence of manifestation of guilt of the offence
charged. Furthermore the direction was plainly capable of being
interpreted by the jury so that if it regarded the appellant as less than
credible as a witness, this could be used to bolster up the Crown case.
This is a subject on which this Court has been required to make rulings 40
in a number of recent cases. It is with this in mind that I propose dealing
with the matter in some detail and to refer to a number of cases touching
upon the subject. In R. v. Tripodi [1961] V.R. 186 the Victorian Full
Court having spoken generally of evidence which might amount to
corroboration ruled that in appropriate cases false denials by an accused 45
either to the police or whilst giving evidence at his trial can amount to
corroboration; that it is for the trial judge to decide whether the denials
can in the circumstances constitute corroboration, and if he considers
that they can, to leave it to the jury as a question of fact whether they do;
but at 191 the court in its joint judgment said that the question whether 50
the fact that an accused gave to the police false denials upon a number of
matters can amount to corroboration of a complainant’s evidence stands
on a different footing. The court there ruled that evidence of such denials
was admissible relying upon the statement of Griffith C.J. in R. v. Grills
(1910) 11 C.L.R. 400, 409 but went on to say that whether it amounts to 55
corroboration is a more serious question upon which it was thought that
the authorities were not always clear.
426 Andrews C.J.
In R. v. Grills Griffith C.J. said of statements made in the presence and

hearing of another by an accused person:
“The fact that such a statement has been read is often admissible in
evidence, and the reason for its admissibility is well known. The
5 statement itself is not evidence of the facts alleged in it. The
evidentiary fact consists in the conduct of the accused when it is
read to him, whether by way of spoken words, which may amount
to an admission or denial in whole or part, or by silence. The
circumstances of the case may show that such conduct is
10 evidentiary of some fact relevant to the question of his guilt, e.g.,
his untrue denial of some relevant fact proved aliunde. If it is not
evidentiary of any such fact the evidence is irrelevant, and
inadmissible on that ground.”
The authority of R. v. Grills was acknowledged by both Kitto and
15 Taylor JJ. in Woon v. The Queen (1964) 109 C.L.R. 529 and I have
referred to the judgments in that case in a recent decision of this Court (R.
v. Ian Williams Q.L.R. 25/7/87). In Woon ‘s case the court was concerned
with the admissibility of evidence of statements made by a person under
investigation in which he makes no deliberate admissions but is said
20 thereby to have demonstrated a “consciousness of guilt”. The case came
before the High Court on application for special leave to appeal from the
decision of the Victorian Full Court. Woon was tried jointly with three
other men including one Walter Raymond Radcliffe on a charge of
breaking and entering a counting house and stealing a number of articles
25 and money. As for direct evidence the case against Woon depended solely
upon evidence of police officers of questions and answers made during
two interrogations of which the first occurred about five months after the
offence was committed. Woon made no direct admissions of guilt and did
not give evidence. Having been warned that he need not answer questions
30 he answered a number but refused to answer others and was selective in
his answers. He conceded that he was a friend of one of the co-accused. At
first he denied knowing Radcliffe. In a second interrogation about eleven
days later he admitted knowing Radcliffe after being told that the latter
said during an interview that he knew Woon. At first he denied sending
35 telegrams to Radcliffe but later admitted sending such telegrams. He
admitted using oblique terminology (my phrase) in one of the telegrams.
Having been told by a police officer that the latter had obtained the
telegrams, answers given by him would at least generate suspicion against
him. They are as follows:
40 “(Q.) In that telegram it mentions ‘football office’. Radcliffe told me
that you met near the Melbourne Football Ground at Jolimont
when you were planning the bank robbery. Did you meet him
there? (A.) I have met him there. (Q.) Was it to plan the bank
robbery? (A.) I will not answer that. (Q.) It is also alleged that you
45 sent him a telegram from Sylvania, New South Wales. Is that right?
(A.) I have sent him a few telegrams. (Q.) Some of the money found
in your possession was issued in Melbourne prior to the bank
robbery by the Reserve Bank to, amongst others, the E.S. & A.
Bank. (A.) That is what has been worrying me. (Q.) What do you
50 say about it? (A.) I have nothing to say. (Q.) Do you still have the
eight thousand pounds in the safe deposit box in Sydney? (A.) Yes.
(Q.) Are you prepared to tell us in what bank and under what
name? (A.) No. (Q.) Do you deny breaking into the bank? (A.) I do
not deny it and I do not admit it. (Q.) Do you deny being in
55 Melbourne that night? (A.) I will not answer that question. (Q.)
You were seen by one of our detectives at the Melbourne Airport
last November, is that right? (A.) I will not answer that question.
436 R. v. KERIM 1988
Andrews C.J.
(Q.) Radcliffe told me that he telephoned you at your home in

Sydney several times on telephone 37–5352, and what is more, he
gave me the telephone number that he called. Is that your
telephone number? (A.) Yes; but it is not under my name. (Q.) Are
you prepared to help us any further in the matter? (A.) I have 5
nothing further to say”.
No other evidence directly implicated Woon. It was left to the jury to
consider whether any of the answers which the applicant elected to give
persuaded the jury beyond reasonable doubt that he was conscious of guilt
as a party to the crime. The court held that it was open to the jury to infer 10
from the applicant’s words and conduct upon his interrogation, viewed in
the light of associated facts proved against him, for example, the bank
robbery, that he had revealed his guilt of the crime with which he was
charged. Kitto J. at 537 and Taylor J. at 539 pointed out that an accused
may reveal his guilt by conduct or simply by words indicating that within 15
his mind he entertains a guilt consciousness.
The type of evidence under consideration must prove a fact relevant to
guilt such as, for example, a guilty conscience and that it centres upon the
offence charged. If either inherently or in relation to other relevant facts
proven, answers given, or in proper circumstances questions to which 20
answers are withheld, may reasonably be relied upon to establish such a
fact in support of a verdict of guilt beyond reasonable doubt, they may be
left to the jury as evidence. That is to say they do not bear simply upon the
credibility of the accused but go further and have direct probative effect.
In an ordinary case the fact that an accused person is regarded as 25
unreliable will not round off the Crown case by filling in gaps. Where
nothing in the surrounding circumstances is shown which could
reasonably be thought to compel a denial by a person interrogated or
where he gives an answer which is ambiguous, neutral, equivocal, or
otherwise not plainly inconsistent with a consciousness of innocence it 30
ought not to be left to the jury with a direction to the effect that it has
probative force. Without the latter it could not be regarded as
corroborative. (See, for example, R. v. Ian Williams.)
In considering use which may be made of “corroboration and lies” in R.
v. Callings [1976] 2 N.Z.L.R. 104, McCarthy P. delivering the judgment 35
of the Court of Appeal said at 116:
“Where, as here, the question of lies, whether as corroboration or
otherwise, arises, the need for special care in the direction of the
jury has been emphasised in several cases in this court. The most
recent is R. v. Sateki [1975] Current Law (N.Z.) 567, wherein, 40
among the earlier cases, reference was specifically made to R. v.
Dehar [1969] N.Z.L.R. 763 and R. v. Gibbons [1973] 1 N.Z.L.R.
376. In R. v. Dehar the judgment of the court, delivered by Turner
J., after citing certain cases on corroboration indicates the
principle succinctly: 45
‘In all these cases it had been recognised that if a jury comes to
the conclusion that an accused has deliberately lied as to his
movements, they may on a proper direction conclude that he
told the lies because he is unable to account for the facts to which
the other witnesses have testified, in any way consistently with 50
his own innocence. The same principle applies in cases like the
one before us, where the question is not one of corroboration at
all, but is simply whether the lies may be added to a case
insufficient without them, so as to support a verdict of guilty.’
([1969] N.Z.L.R. 763, 764–765). 55
The same point is developed and supporting authorities collected
by Professor J. D. Heydon in an article, “Can Lies Corroborate?”
426 Andrews C.J.
(1973) 89 L.Q.R. 552. In the words adopted in that article,

statements by a defendant, when and only when proved to be lies
by other evidence independent of the complainant or their own
inherent improbability, may be corroborative if they are
5 attributable to a sense of guilt: they may be regarded as operating as
implied admissions proceeding from the speaker’s consciousness
of guilt. But there are often other possible explanations for lies,
such as fear of facing an unjust accusation of guilt if suspicious
circumstances are admitted. We agree with Burbury C.J. in
10 Lonergan v. The Queen [1963] Tas. S.R. 158, 160, that most false
statements or denials may also be explicable upon some hypothesis
other than the accused’s implication in the crime.”
In R. v. Christie [1914] A.C. 545 it was held that there is no rule of law
that evidence of a statement made in the presence and hearing of the
15 accused is not admissible as having a bearing on his conduct unless he
accepts the statement; but where the accused denies the truth of the
statement the presiding judge, in the absence of special circumstances,
should intimate to counsel for the prosecution that, inasmuch as the
evidence, though admissible, would have little value and might unfairly
20 prejudice the jury against the accused, it ought not to be admitted. If not
precisely on the point, as a ruling it is consistent with a view which I take
here that the jury should not have been left with the direction that was
made.
If in fact the answers in the record of interview were thought to differ in
25 effect from the evidence given by the appellant in the first place the jurors
who were not present when the interview was held had no opportunity to
gauge the atmoshpere in which it was conducted nor was the appellant
pressed with any question upon which he might have further clarified the
answers then given.
30 In R. v. Christie at 554 Lord Atkinson in a statement which has been
often cited said that the rule of law undoubtedly is that a statement made
in the presence of an accused person, even upon an occasion which should
be expected reasonably to call for some explanation or denial from him, is
not evidence against him of the facts stated save so far as he accepts the
35 statement, so as to make it, in effect, his own. If he accepts the statement
in part only, then to that extent alone does it become his statement. He
may accept the statement by word or conduct, action or demeanour, and
it is the function of the jury which tries the case to determine whether his
words, action, conduct, or demeanour, at the time when the statement
40 was made amounts to an acceptance of it in whole or in part. It by no
means follows, that a mere denial by an accused of the facts mentioned in
the statement necessarily renders it inadmissible, because he may deny
the statement in such a manner and under such circumstances as may lead
the jury to disbelieve him, and constitute evidence from which an
45 acknowledgement may be inferred by them.
Lord Atkinson went on to express the view that although it is not to be
taken as a rule of law that such statements are not to be admitted in
evidence until a foundation has been laid for their admission by proof of
facts from which a jury might reasonably draw an inference that an
50 accused so accepted a statement as to make it in whole or in part his own,
it is a rule which in the interest of justice it might be most prudent and
proper to follow as a rule of practice. This statement is in context with a
general proposition to the effect that evidence of little weight but which is
nevertheless prejudicial, should as a matter of discretion, be excluded
55 even though it may be at law technically admissible.
In R. v. Fellowes, Jackson, McGeough and Buttigieg [1987] 2 Qd. R. 606
this Court held that for a direction by a trial judge that certain statements
438 R. v. KERIM 1988
Andrews C.J.
made by an accused to the police were untrue, and therefore, the jury
could conclude, given “out of a consciousness of guilt”, to be a proper
direction there would need to be clear evidence by admissions or from
independent witnesses that the statements were in fact untrue.
Furthermore, the trial judge should warn the jury against convicting a 5
person merely because he tells lies.
I have referred to the evidence of the witness Budge. In order for his
evidence to have particular significance in this immediate context it
would have to appear that the answers given by the appellant during the
interview with the police as to where the complainant girl and he slept 10
were meant to convey the impression that either one of them slept “in” as
distinct from “on” a particular bed and that there was demonstrated a
need for him to direct his mind to an answer sufficiently precise to draw
what proved ultimately to be a significant distinction. In the
circumstances it seems to me unreasonable to suggest to the jury that 15
there was any basis for a conclusion as to what prompted the appellants
use of words in the interview as to where he and the complainant slept.
In R. v. Lucas [1981] Q.B. 720, 723 Lord Lane C.J. when speaking of a
case in which corroboration was sought of the evidence of an accomplice
said: 20
“The fact that the jury may feel sure that the accomplice’s evidence
is to be preferred to that of the defendant and that the defendant
accordingly must have been lying in the witness box is not of itself
something which can be treated by the jury as corroboration of the
accomplice’s evidence. It is only if the accomplice’s evidence is 25
believed that there is any necessity to look for corroboration of it.
If the belief that the accomplice is truthful means that the
defendant was untruthful and if that untruthfulness can be used as
corroboration, the practical effect would be to dispense with the
need of corroboration altogether. 30
The matter was put in this way by Lord MacDermott in Tumahole
Bereng v. The King [1949] A.C. 253, 270:
‘Nor does an accused corroborate an accomplice merely by
giving evidence which is not accepted and must therefore be
regarded as false. Corroboration may well be found in the 35
evidence of an accused person; but that is a different matter, for
there confirmation comes, if at all, from what is said, and not
from the falsity of what is said.’
There is, without doubt, some confusion in the authorities as to the
extent to which lies may in some circumstances provide 40
corroboration and it was this confusion which probably and
understandably led the judge astray in the present case. In our
judgment the position is as follows. Statements made out of court,
for example, statements to the police, which are proved or
admitted to be false may in certain circumstances amount to 45
corroboration. There is no shortage of authority for this
proposition: see, for example, Reg. v. Knight [1966] 1 W.L.R. 230,
Credland v. Knowler (1951) 35 Cr.App.R. 48. It accords with good
sense that a lie told by a defendant about a material issue may show
that the liar knew if he told the truth he would be sealing his fate. In 50
the words of Lord Dunedin in Dawson v. M’Kenzie, 1908 S.C. 648,
649, cited with approval by Lord Goddard C.J. in Credland v.
Knowler, 35 Cr.App.R. 48, 55:
‘“… the opportunity may have a complexion put upon it by
statements made by the defender which are proved to be false. It 55
is not that a false statement made by the defender proves that the
pursuer’s statement are true, but it may give to a proved
426 Andrews C.J.
opportunity a different complexion from what it would have

borne had no such false statement been made.”
To be capable of amounting to corroboration the lie told out of
court must first of all be deliberate. Secondly, it must relate to a
5 material issue. Thirdly the motive for the lie must be a realisation
of guilt and a fear of the truth. The jury should in appropriate cases
be reminded that people sometimes lie, for example, in an attempt
to bolster up a just cause, or out of shame or out of a wish to conceal
disgraceful behaviour from their family. Fourthly the statement
10 must be clearly shown to be a lie by evidence other than that of the
accomplice who is to be corroborated, that is to say by admission
or by evidence from an independent witness.”
In cases where it is appropriate to leave evidence such as that under
consideration to a jury as having some probative force whether by way of
15 corroboration or otherwise it is appropriate to direct a jury warning it
against convicting an accused merely because he tells lies. (See, for
example, Broadhurst v. The Queen [1964] A.C. 441, 457).
In R. v. McK. Thomas J. at 482, with whose reasons Connolly J. agreed
said:
20 “The use of untrue statements by an accused, whether made out of
court or in court, for purposes of corroboration is a subject that
requires a careful direction. It is now well established that to be
capable of amounting to corroboration, a lie told in court must
fulfil four tests – one, it must have been deliberate; two, it must
25 have related to a material issue; three, the motive for the lie must
have been a realisation of guilt; four, the statement must clearly be
shown to have been a lie by evidence other than that of the witness
whose evidence is to be corroborated (R. v. Lucas [1981] 1 Q.B.
720, 724, 725; R. v. Buck (1982) 8 A.Crim.R. 208, 213). It is also
30 thought desirable in appropriate cases that the jury be reminded
that people lie for a variety of occasions, and that a person should
not be convicted just because the jury thinks that he is telling lies.
’It is very important that a jury should be carefully directed upon
the effect of a conclusion, if they reach it, that the accused is
35 lying. There is a natural tendency for a jury to think that if an
accused is lying, it must be because he is guilty and accordingly
to convict him without more ado. It is the duty of the Judge to
make it clear to them that this is not so.’
(Broadhurst v. The Queen [1964] A.C. 441 at 457).”
40 An interesting discussion of the topic under immediate consideration
occurs in the article, Can Lies Corroborate? by Professor J. D. Heydon,
1973, 89 L.Q.R. 552 referred to by McCarthy P. in R. v. Collings.
In Perera (1982) 6 A.Crim.R. 225 in the Court of Criminal Appeal,
Victoria, Young C.J. held that mere denial by an accused of a charge laid
45 could not be used to indicate a consciousness of guilt. At 228, 229 the
learned chief justice appears to accept the view that the mere giving of
false evidence does not of itself have probative force. He accepted a
statement by Lowe J. in Edmunds v. Edmunds [1935] V.L.R. 177 that:
“By no torturing of the statement ‘I did not do the act’ can you extract the
50 evidence ‘I did do the act’” and he further approved the statement by
Lord MacDermott in Tumahole Bereng v. The King thus, “Nor does an
accused corroborate an accomplice merely by giving evidence which is
not accepted and must therefore be regarded as false”. In that case Murray
J. held that a denial of guilt on a primary issue can rarely, if ever, form the
55 basis of an inference of consciousness of guilt but that falsity on a
secondary issue may give rise to such inference being open to the jury to
consider. Marks J. also commented upon the rarity that a falsehood can
440 R. v. KERIM 1988
Andrews C.J.
meet criteria required by the law and have attached to it the significance
of demonstrating a consciousness of guilt or otherwise strengthening the
Crown case.
In Buck (1982) 8 A.Crim.R. 208 the Court of Criminal Appeal in
Western Australia had a similar question to consider. It was held by the 5
court that a jury requires a very careful direction upon circumstances in
which a lie told by an accused person can amount to corroboration and
they must clearly understand that it is within strict limits that false
statements and denials may be relied upon as independant proof of the
affirmation of a relevant issue. (See at 214). 10
I confirm therefore my view that the evidence of answers by the
appellant and as given by him on the subject of where he and the girl slept
does not meet the criteria laid down in R. v. Lucas as approved in R. v.
McK. and R. v. Fellowes & Ors. It should not have been left to the jury as
corroborative. Budge’s evidence really carries the matter no further 15
although possibly it might have some independent probative force of its
own. He was sought to be regarded as the independent witness necessary
to establish that the appellant lied. His evidence was no more than neutral
as to whether the girl might have slept “on” the single bed.
I would further say that if by some tortured reasoning it might be said 20
that the evidence under discussion was technically admissible as
demonstrating a consciousness of guilt it was plainly of such little weight
compared with the prejudice which might be created by its being left as to
call for its being excluded from such consideration by a jury in a proper
exercise of a trial judge’s discretion. In any circumstances in my view it 25
was dangerous so to leave it to the jury.
I do not think that the position is, from the Crown’s point of view,
restored, whether generally or as relevant to the proviso, by his Honour’s
appearing to say that if the jurors were satisfied beyond reasonable doubt
that the girl slept with the appellant and they were also satisfied that when 30
he told the police that she slept in a single bed he was telling an untruth
etc. this latter could amount to corroboration. That they might regard the
reasoning as circular and seeming to adopt as a postulate the requirement
that they be satisfied beyond a reasonable doubt that the girl slept with the
accused independently of the evidence said to establish that the appellant 35
was lying etc. is not, in my view, to demonstrate that the jurors did not put
the latter cart before the horse or at least use it to bolster up their
confidence in concluding that the girl slept with the appellant.
His Honour redirected the jury in effect upon the need to find from
Budge’s evidence corroboration that the girl slept in the double bed with 40
the appellant. This they were to find established from Budge’s evidence
by inference to be drawn from his evidence to the effect that the girl did
not sleep “in” the single bed. His Honour made no reference to the
possibility of her having slept “on” the single bed or at least to its not
having been excluded by Budge’s evidence as to the state of the bed next 45
morning.
The balance of submissions for the appellant related to whether the
evidence of the police officers who obtained a packet of condoms
matching the description given by the complainant girl of the one which
she said was observed by her in the Arkana Motel, together with the 50
evidence of Mr O’Reilly to which I have referred could be corroborative
of her evidence that the appellant was observed by her to be wearing a
condom during the occasion in the Arkana Motel when she said to the
effect that she was raped by him.
His Honour’s direction to the jury was to the effect that this was direct 55
evidence acceptable in law as corroborative evidence but subject to its
being for the jury to decide wether in fact to act upon it as such. The
426 Andrews C.J., Macrossan J.
evidence was plainly circumstantial but I cannot see that the error was
other than technical having regard to the phrasing of the direction
otherwise.
In my view the material was validly left to the jury’s consideration in
5 this regard, but this does not alter the conclusion I have reached on the
other grounds which I have discussed at some length.
I would hold that his Honour was in error for the reasons indicated and
that the errors were each likely to have significantly influenced the jury in
coming to its decision. I am unable to conclude that evidence to support
10 the decision, without the evidence wrongly left as capable of
corroborating the complainant was so persuasive as to exclude the
possibility of injustice in allowing the verdicts appealed against to stand.
In respect of each of those counts I would allow the appeal and order
that the conviction be set aside.
15 I would order a retrial on each of such counts.
MACROSSAN J.: The appellant appeals against his conviction on
three out of five counts which were joined in an indictment. On the
remaining two counts he was acquitted.
The principal ground argued was that the learned trial judge
20 misdirected the jury upon the evidence which at law was capable of
amounting to corroboration in the case. A further ground was that in the
exercise of discretion a particular question put and an answer received, as
the police claimed, in the course of investigating the charges should have
been excluded from the jury’s consideration.
25 All of the offences charged were of a sexual nature and were alleged to
have been committed by the appellant upon his young stepdaughter. The
first count alleged the commission of an offence of unlawful and indecent
dealing with a girl under the age of fourteen upon a date unknown
between January 1980 and December 1983. The period specified covered
30 the time from when the complainant was almost eight years of age up until
she was almost twelve. In proof of an offence of indecent dealing in this
period the Crown case which, relied almost exclusively upon the
complainant’s evidence, was constituted by her claims of repeated sexual
interference by the appellant throughout the whole of the period at
35 approximately fortnightly intervals. The complainant said that the
appellant used to insert his finger into her vagina and also deal with her
sexually in other ways. She said that she recalled the first time that the
appellant made an approach to her of a sexual nature and this had been at
about Christmas time when she was in Grade 4 at school. Accepting the
40 correctness of her claim she would then have been almost nine years of
age. In view of the evidence provided in the trial by a Dr Smith and the
directions given by the trial judge upon corroboration it is relevant to
state that the complainant claimed that on the first occasion referred to
she felt a deal of pain as, indeed, she did on other occasions and that she
45 bled over her pants and the sheets of the bed where the offence occurred.
The complainant said that when she reached the end of Grade 7 at
school or the beginning of her Grade 8 year the acts of interference by the
appellant ceased, he refraining from approaching her when she directed
him not to deal with her any more in this fashion. Some two years after
50 this behaviour ceased in about August or September 1985 there was one
isolated episode, not the subject of any charge, when the complainant
alleged that the appellant fondled her breasts.
The subject of the next charge, count number 2 in the indictment, did
not occur until 30 September or 1 October 1986 when the appellant and
55 the complainant travelled together from the country property where they
lived to Gladstone and stayed there overnight in a motel room. There was
some debate at the hearing about the correct date of this overnight stay at
442 R. v. KERIM 1988
Macrossan J.
Gladstone but nothing particularly turned upon it. The facts of the Crown
case were that count number 2 was constituted by an act of rape
committed by the appellant upon the complainant during the night they
were together at the motel; count number 3, a charge of unlawful dealing
with the girl then under the age of sixteen, occurred on the morning 5
immediately following while they were still in the motel, when the
appellant inserted his finger into the girl’s vagina; count number 4, a
further charge of rape, occurred when they had travelled back to the
country property where they lived and were left alone in the house on the
next night, 3 October 1986 and the final count was constituted by another 10
act of indecent dealing when the appellant inserted his finger into the
girl’s vagina on the morning of 4 October 1986.
The allegations which constituted the Crown case on count 1 of the
indictment obviously did not discriminate between the various acts of
interference, regularly repeated, occurring over a period of years, as the 15
complainant deposed. Clearly, count 1 was in a form which would be
proved if the jury was satisfied of the occurrence of any single one of those
acts of sexual interference in the specified period of four years. There was
no objection to the evidence led by the Crown of this multiplicity of acts
in attempting to prove its allegation of the occurrence of a single offence 20
at some time in the period and the argument on appeal did not suggest
that it was inappropriate that this evidence should have been led.
However, an appreciation of the effect of the judge’s directions on
corroboration requires it to be kept in mind that the complainant in her
testimony made these allegations of frequently repeated acts of 25
interference over a period of years. He used to come to her bed, she said
because in the period in question as a young child she was subject to
childish fears which affected her at night. She said that she did not at first
know that the actions which the appellant performed when he came to her
bed, ostensibly to comfort her, were wrong.
30
After the actions constituting counts 2 and 3 had occurred, as the
complainant said, in the motel at Gladstone in October 1986 and the final
two offences had taken place a day or two later on their return home, the
complainant did not at first make any complaint but sometime shortly 35
afterwards her allegations came to light and she was medically examined.
Dr Smith, who was called as a witness in the Crown case, examined the
complainant on 8 October 1986, that is, some seven days or so after the
alleged events at the motel and some four to five days after the further
similar actions had allegedly occurred after the girl and her stepfather 40
returned home. The real issue on all of the counts before the jury was
whether the acts had occurred at all and since the appellant gave evidence
and completely denied all of the girl’s allegations of sexual interference it
was largely word against word. There were no other eyewitnesses and the
corroboration issue was obviously an important one. 45
The girl said that when the rape took place at the motel the appellant
had grabbed her, forced her into the double bed and eventually got on top
of her and inserted his penis into her vagina and that although this was
“really painful” the appellant “kept doing it and it went on for about one
or two minutes”. She said that the further rape took place on 3 October 50
when her mother and sister were absent and she and the appellant being
alone in the house the appellant forced her to come into his bedroom in
the house. She said that he positioned her on top of himself in the bed and
inserted his penis in her vagina so that it “really hurt” and that the
continued to hold her “down on top of him for about five minutes”. 55
During this period she said that the appellant was pushing her up and
down and was himself moving. There was no evidence that the girl bled as
426 Macrossan J.
a result of the appellant’s actions on any occasion other than when she
interfered with for the first time.
Dr Smith said that on her examination of the complainant conducted
on 8 October 1986 there was no evidence of any tears or other trauma to
5 the complainant’s vulva but her “hymen was not intact indicating that she
was not a virgin and the vaginal examination was normal”. She said that if
there were any small abrasions received by the complainant eight days or
so before her examination she would expect them to have healed by the
date of the examination. The overall effect of her evidence seemed to be
10 that there was no indication apparent on examination of the
complainant’s having engaged recently in sexual intercourse or other
sexual activity and also that one would not necessarily expect to see at the
time of her examination any sign of non-consensual intercourse occurring
on 1 October or, as she appeared to imply, on 3 October.
15 In directing the jury as to the evidence which was capable of providing
corrobation, the learned trial judge referred to the non-intact character of
the girl’s hymen as it appeared on examination on 8 October 1986 and he
also referred to two other matters so that some further outline of the facts
is necessary.
20 The girl said that she and the complainant had made the journey
together to Gladstone which resulted in their staying overnight together
in a motel room. A principal purpose of the expedition had been for the
appellant to visit his accountant. As a result of his making a call there the
girl and the appellant were at times separated and each of them had
25 independently done some shopping. The girl said that she saw her
stepfather going off in the direction of a particular chemist shop which
could be approached along the Mall at Gladstone. The appellant told the
complainant that he was going to buy aftershave and the complainant
said she later saw aftershave in a paper bag in his possession after she
30 rejoined him before they went to the motel. The complainant said that on
the following morning while they were still at the motel after the rape
which had occurred during the night and the subsequent act of indecent
dealing, she noticed for the first time a packet of condoms in the room.
She said that the packet was blue and grey in colour and that it had a green
35 coloured price tag bearing the price $4.99 and it had the words “For Her
Pleasure”. The Crown case was that these items could have been and were
purchased by the appellant when he visited the chemist shop the day
before and bought aftershave. The Crown was not able to offer direct
proof of purchase by the appellant of condoms, but as part of its case it
40 called the pharmacist, O’Reilly, who operated the Kin-Kora Pharmacy in
the Mall at Gladstone. This witness was able to say that in October 1986
he had a line of such articles exposed for sale in his shop where persons
entering the shop could readily see them. The brand was called “Liason”
and because it was not selling well he had at that time marked the price
45 down from the original figure using a green price ticket inscribed with the
price $4.99. He said that the packet also bore the words “Textured For
Her Added Pleasure” and that the packets came in various colour
combinations. He also carried a number of other lines of condoms in his
shop. The appellant’s case involved a denial of the use of condoms.
50 The case put by the appellant at trial was not only that there had been
no sexual contact between himself and the complainant in the motel room
or on any other occasion, but that at the motel she had occupied a single
bed in the room and he had occupied a double bed. I use the word
“occupied” as a suitable neutral expression. The girl in her evidence said
55 that neither of them had slept in the single bed and the double bed was the
only one slept in. When the girl was cross-examined by counsel for the
accused it was put to her that she had slept “on” the single bed, that is
444 R. v. KERIM 1988
Macrossan J.
lying on top of it, but she denied this. As part of its case the Crown called
the manager of the motel, Burge, who said that he recalled the condition
of the room after the complainant and the appellant had departed.
Speaking of the single bed he said he was quite positive that it had not
been slept “in” and he seemed to base this belief upon the state of the bed, 5
the way in which it was then made up and characteristic way in which they
made up beds at the motel. No challenge was offered to his evidence that
the single bed had not been slept “in”. The police had, in the course of
investigations before the appellant was charged, questioned him about
the sleeping arrangements at the motel that night. Constable Jackson says 10
that when the complainant’s allegations about events at the motel were
put to the appellant he interrupted him saying, “Look, man, she slept in
the other bed. There was a single and a double bed in the room and she
slept in the single bed” and later he repeated, “I slept in the double bed
and she slept in the single bed”. A formal record of interview, ex. 3, was 15
taken on 15 October 1986 before the appellant was charged and during
the course of it, in question 34, the questioning police constable, referring
to the alleged act of sexual intercourse in the motel on 1 October 1986,
said “I realise that you have already denied this taking place, but on that
night where did (the complainant) sleep?” and the appellant replied, “In 20
her bed”. The following exchange then occurred: “What do you mean by
her bed?”, “In the single bed in the Motel”, “Where did you sleep?”,–
“On the double bed”.
Although the appellant denied sharing a bed with the complainant at
the motel on the night of 1 October, the defence version of the events of 25
the night of 3 October was that when the complainant and the appellant
had returned home and were alone there the complainant did sleep with
the appellant in his bed but that was because she had become scared and
had come to his bed and spent all night in it. He denied that any sexual
impropriety had there occurred. 30
It would be for the jury to judge as between any suggestion that the
accused was on the one hand deliberately tailoring his evidence to
strengthen his position or on the other hand had never intended to make
any fine distinction between sleeping “in” and sleeping “on” a bed.
However, this was not left as a mere matter relevant to credit which the 35
jury might choose to consider but was put to the jury as one of the three
matters capable of being treated as corroboration of the complainant’s
evidence. Care was taken in directing the jury that not every untruth in
the appellant’s version could be treated by it as corroboration. It was
informed that untruths might be uttered by an accused person from 40
various motives and for different reasons and that a falsehood could not
necessarily be taken as indicative of a sense of guilt in a matter charged or
under investigation. It is to be noted that in the form in which the
direction on this point went to the jury, it was not told that it might use as
corroboration some untruth deliberately told by the appellant after he 45
became aware of the effect of the motel manager’s evidence but it was
instructed that a deliberate falsehood told at an earlier stage to the
investigating police might be so used.
The jury was given the usual sort of warning of the desirability of
looking for corroboration in sexual cases and of the particular need for 50
caution in the absence of it in proceeding to any conclusion of guilt. The
direction was along the lines indicated in Kelleher v. R. (1974) 131 C.L.R.
534 and no objection is taken to it. The learned trial judge directed the
jury that the real issue in the case was whether the acts alleged against the
appellant occurred at all and in this respect it needed to be satisfied that 55
the girl was truthful if the appellant were to be convicted. The learned
judge then porceeded to deal further with the aspect of corroboration
426 Macrossan J.
instructing the jury of the three matters which he said were capable of
amounting to it.
The first of these three matters was described by the learned trial judge
as being evidence of a “general nature”. He explained his use of this
5 phrase by saying that it did not relate to any specific events covered by the
five counts in the indictment. The so-called “general” evidence was that
of Dr Smith that the child was not a virgin, that is that her hymen was not
intact. The learned judge referred to the alleged October events, the two
rapes followed in each case by the acts of penetration by the appellant’s
10 finger and he said to the members of the jury that they could say to
themselves “Well, if that in fact occurred you would expect her to have
had her hymen broken”. He then indicated to the jury that it was open to
it to adopt the approach – “That does tend to confirm or does tend to
support her story generally that she was sexually interfered with in the
15 manner in which she has described”. The emphasis is mine since a
question which might be thought to arise is whether there was
justification for adding those words.
The complainant was apparently a clever girl and had been dux of her
class at school. She had, it seems, some theoretical awareness of sexual
20 matters and she conceded that practical jokes involving condoms were
played at her school. Nevertheless, she was still a young girl some four
months short of her fifteenth birthday at the date of the alleged rapes. One
thing to be decided is whether it is correct to say that because the acts of
interference and the rapes as she described them might, if they occurred,
25 have been capable of causing damage to a hymen otherwise intact then the
particular damage of her hymen discovered on medical examination on 8
October 1986 was capable, in a general way, of confirming her account of
the acts of sexual interference and the rapes, all perpetrated by the
appellant. An intact hymen, if it had existed, might have been regarded as
30 an indication inconsistent with the complainant’s version of events but it
does not follow that the elimination of such an obstacle to acceptance of
the Crown case is able to be viewed as a feature lending some support to
the case. The mere absence of a negative feature may not be able to be
viewed as a positive supporting feature. Can such evidence which may be
35 regarded as evidence consistent with the complainant’s account properly
be regarded as capable of constituting corroboration of her?
It is clear from R. v. Baskerville [1916] 2 K.B. 658 and many subsequent
cases that in those situations where corroboration is necessary or
desirable it must be evidence “which affects the accused by connecting or
40 tending to connect him with the crime. In other words, it must be
evidence which implicates him, that is, which confirms in some material
particular not only the evidence that the crime has been committed, but
also that the prisoner committed it.” (Baskerville, at 667)
Speaking of the content of the rule as to corroboration, Lord Diplock in
45 R. v. Hester [1973] A.C. 296 at 325 said it should be “confirmation from
some other source that the suspect witness is telling the truth in some part
of his story which goes to show that the accused committed the offence
with which he is charged”.
These statements of principle raise some doubts that there can in law be
50 corroboration which does not, as the learned trial judge put it, “relate to
any specific events” referred to in the charges. Probably what the learned
judge was meaning to say and would have been understood by the jury as
conveying was that his reference was to a piece of evidence which was
circumstantial and did not apply exclusively to any particular counts but
55 applied equally to all five. When the learned judge came to deal with the
final two counts, the offences of rape and indecent dealing alleged to have
occurred in the home of the complainant and the accused, he repeated in
446 R. v. KERIM 1988
Macrossan J.
respect of the count 4 rape (but obviously equally embracing the count 5
charge of indecent dealing) that there was not corroboration “in relation
to that specific event”. I take him then to be saying to the jury that on
those last charges there was no matter capable of constituting
corroboration other than the general matter which applied to all five 5
counts.
It is well settled that corroboration in cases where it is looked for may
consist of circumstantial evidence (Baskerville at 667 and R. v. Berrill
[1982] Qd. R. 508 per McPherson J. at 527) but is the evidence “of a
general nature” to which the learned judge here referred capable of 10
implicating the accused in the commission of the offences? This evidence
is the testimony of Dr Smith as to the physical condition of the girl when
she examined her on 8 October 1986. When Dr Smith said of the
complainant that “her hymen was not intact indicating that she was not a
virgin”, she was not asked to explain what she meant by saying that the 15
girl was not a virgin. She seems to have been understood as meaning to
add nothing to her statement of her discovery that the hymen was not
intact. She did not say and would not be taken as saying that the condition
had necessarily been caused by a penetration of the girl’s vagina by a male
penis or by the hand or fingers of another person or in some other 20
specifiable manner. She merely stated her finding and it was left to be
gathered without the benefit of expert assistance what the cause may have
been.
The learned judge in what might be thought of as an appeal to common
knowledge and common sense observed to the jury during his summing 25
up that a hymen could be broken in a variety of ways not just as a result of
acts of sexual interference or rape of the kind alleged. This observation,
although not deriving from the medical evidence presented in the case,
was one which was favourable to the defence and no objection was taken
to it. However, when Dr Smith spoke of the condition of the hymen she 30
also indicated that she was unable to say when it had ceased to be intact
and so attention must turn to the question whether the condition was a
circumstance which corroborated the complainant in respect of any of her
allegations and did so by tending to implicate the appellant in the
commission of any of the offences. 35
This is not an area in which a complainant can effectively corroborate
herself: the corroboration must be independent testimony which of its
own force tends to implicate an accused in the commission of an offence.
In the case of a complainant of mature age, the possession of a
non-intact hymen when no date was ascribable to the origin of the 40
condition could not, without more, be capable of constituting
corroboration of whatever sexual charge she might choose to level against
an alleged offender. Is the position different when the complainant is a
few months under fifteen years of age at the time when the independent
discovery of her condition is made? 45
There is in this case a lack of evidence that at some particular earlier
time the complainant’s hymen was intact. Such evidence might have
enabled a temporal connection to be demonstrated between the rupture
and one or other of the offences charged. The tendency of one portion of
the girl’s evidence might be thought to ascribe the rupture of her hymen to 50
the first act of indecent dealing allegedly perpetrated upon her. She said
that when the appellant’s finger was then inserted into her vagina the
experience was painful and she bled. Counsel for the Crown did not
inquire of Dr Smith whether an occasion when such events occurred
might have been the occasion when the hymen suffered rupture and when 55
counsel for the accused asked what an episode of bleeding after the
insertion of an adult finger into the vagina of a female child aged eight to
426 Macrossan J.
twelve years would indicate, Dr Smith replied “probably a small tear of

some part of the vulva”. Without apparently intending to modify her
opinion in respect of the probabilities of the matter, she did, in answer to
a question from the learned trial judge, concede that the alleged finger
5 penetration and bleeding would be “consistent” with the hymen tearing.
However, it does not appear that the case for the Crown sought to
attribute any particular date to the occasion of the tearing of the hymen
and in view of the state of the medical evidence this would not surprise.
I am of the view that in the circumstances the evidence of the rupture of
10 the hymen was not capable of implicating the accused in the commission
of any of the offences charged. The second and third offences allegedly
occurred in the course of a single night and following morning and the
fourth and fifth offences were said to have occurred in the course of a
separate episode a day or so later, but the first count referred to a
15 continuous period which ended about three years before the dates
ascribed to the later counts. Each separate charge called for a search to be
made for some corroborative evidence because the corroboration had to
implicate the accused in the commission of each separate charge.
If the damage to the hymen were thought to have been sustained in the
20 course of the commission of, say, the last offences on 3 and 4 October
1986 it would not immediately be thought of as capable of corroborating
the girl’s claim of the commission of the earlier offences unless by the
application of some line of reasoning based upon the assumption of the
continuing existence of what is sometimes called “guilty passion” but a
25 direction along these lines was not put to the jury here: cf. R. v. Hartley
[1941] 1 K.B. 5 and see R. v. Witham [1962] Qd.R. 49. An even greater
objection is that the medical evidence in this case does not connect the
appellant with any of the offences charged or point to the appellant as
being involved in any sexual activity with the complainant. Simple
30 support of a complainant’s story does not constitute corroboration in a
relevant sense unless it possesses the further feature of implicating the
accused in the commission of the offence charged: Peacock v. The King
(1911) 13 C.L.R. 619, 638–639. It is well understood that the
corroborative evidence need not, by itself, have the effect of proving guilt
35 but what will be expected of it and the area in which it must operate will
depend on the issues at the trial and the respective versions contended for
by the prosecution and defence: R. v. Freeman [1980] V.R. 1; R. v.
Stratford and McDonald [1985] 1 Qd.R. 361 and R. v. Lindsay (1977) 18
S.A.S.R. 103. The corroborative evidence may have a certain consistency
40 with both versions but it must be capable of being regarded as more
consistent with guilt than with innocence and to be acted on by the jury as
corroboration it must, in the end, be regarded by it as supportive of a
conclusion of guilt: R. v. Berrill and R. v. Stratford and McDonald. The
evidence must not, however, be intractably neutral in its effect if it is to
45 serve as corroboration: Ridley v. Whipp (1916) 22 C.L.R. 381, 387, 390;
Eather v. The King (1914) 19 C.L.R. 409, 415 and Eade v. The King (1924)
34 C.L.R. 154, 158.
I take the principle to be that the evidence of the party to be
corroborated may be looked at to provide the setting and to yield a
50 statement of the circumstances of the offence which is alleged. In this
sense, the evidence of that party may invest with significance the details
of the evidence which is offered as corroboration but still the
corroborative evidence must have some independent capacity to
implicate the accused in the commission of the offence which has been
55 committed in the detailed circumstances which have been described.
It must not be lost sight of that the party requiring corroboration must
not simply by adding other evidence be permitted to corroborate himself
448 R. v. KERIM 1988
Macrossan J.
and therefore the evidence said to corroborate must possess some

independent thrust. To take an example suggested by the facts of R. v.
Berrill in much simplified form, if a complainant says that she was raped
in circumstances where some violence was employed, she could not
provide the corroboration by saying she received a blow which gave her a 5
black eye. If on the other hand she does say that she received a blow in
those circumstances which gave her a black eye then if an independent
witness is able to say that she was observed bearing the sign of such a
recently acquired injury that could provide corroboration at least of her
lack of consent. But to provide support even on the issue of non-consent, 10
the observation of the black eye would have to be appropriately related in
terms of time to the date of commission of the alleged offence. For a
similar reason, evidence that the present complainant suffered a rupture
of her hymen at some unspecifiable date prior to 8 October 1986 could
not provide corroboration of the commission of any of the five offences 15
alleged to have been committed at various times extending back from the
recent past to a more remote period. Still less could it implicate the
appellant as being involved in the commission of any such sexual
offences.
Because the form of proceedings where sexual offences are charged is 20
now controlled by the Criminal Law (Sexual Offences) Act 1978, one does
not, in the ordinary case, hear evidence of other sexual experience which a
complainant may have had or even evidence of any lack of it. If one were
to assume that the signs of the ruptured hymen discovered on 8 October
1986 were indicative of some intrusion upon the complainant’s person 25
carried out by a male, they still would not point in any way to a
perpetrator. In fact, those physical signs, unconnected in time so far as
their origins were concerned, had no capacity to implicate the appellant in
any of the offences charged. The complainant although still young was
close to fifteen years of age at the time when she was examined by Dr 30
Smith and it could not simply be assumed that there had been no
significant contact with other male persons or that there had been no
other occurrences which might account for the physical signs discovered.
In D.P.P. v. Boardman [1975] A.C. 421 at 444, Lord Wilberforce observed
that: “In judging whether one fact is probative of another, experience 35
plays as large a place as logic. And in matters of experience it is for the
judge to keep close to current mores.” Some features may have very little
weight as potential corroboration. For example, a condition of distress,
even when it is observed at a relevant time, may not be significant. Other
factors may be responsible for its manifestation. 40
Even though it is for the jury to decide upon the effect to be given to
evidence which is capable of being corroborative, if evidence which is put
forward is, at best, capable of being regarded as possessing no more than
minimal weight, the better course may be not to put it to the jury. It is
better that a case should go to the jury described as uncorroborated rather 45
than be encumbered by an explanation from the judge pointing out
possible corroborative significance in evidence which, in truth, could not
properly be regarded as other than trifling.
The rule that corroboration is desirable in certain cases and that juries
should be warned of the dangers of convicting in its absence is a rule 50
which is designed to protect accused persons against the danger of
conviction on false accusations. An inevitable degree of emphasis will be
conveyed to the minds of the jury by the judge’s mere mention of any
matters singled out as being capable of constituting corroboration and
there is some danger that a judge, acting in conscientious obligation to the 55
rule requiring him to give assistance to the jury upon these matters, may
unintentionally invest some trifling or merely questionable matter with
426 Macrossan J.
an unwarranted importance. It would be unfortunate if the rule designed

for the protection of an accused person were, on a judge’s direction, to
serve as an encouragement to a jury to use flimsy matters as the basis for a
conclusion of guilt. This is not to suggest that any matter reasonably
5 capable of being regarded as having some substantial corroborative effect
should not be left for the jury, but a degree of caution brought to the
process of selection should ensure that merely doubtful matters are not
unduly highlighted.
With all respect, I do not think that, in the present case, the physical
10 condition of the complainant was capable of providing corroboration of
her testimony and the jury should not have been instructed in that context
that it was capable of giving “general” support.
I wish to say something upon the two further matters which the jury was
informed could provide corroboration. These, the jury was told, related
15 only to the events at the Gladstone motel. It has already been mentioned
that when the appellant was interviewed by the police his stepchild’s
accusations were put to him and he was asked where, on his contention,
the complainant had slept in the motel room. He said that she slept in the
single bed and he repeated this version when the formal record of
20 interview was subsequently taken. It was pointed out to the jury that the
appellant had made four references during the total police questioning to
the complainant’s having slept “in” the single bed.
The learned trial judge put to the jury for its consideration as
corroboration the possibility that the accused, acting out of guilty
25 knowledge and in an endeavour to save himself, may have told a
deliberate lie to the police when he denied that, at the motel, the girl
occupied the double bed with him and as part of that denial claimed that
she had slept “in” the single bed. The direction actually given by the
learned judge, read with his redirection on the point, was that the
30 possibility of corroboration was to be found in an out-of-Court lie told in
respect of the sleeping arrangements at the motel. The possibility of the
jury’s being satisfied of the existence of a lie would depend, amongst other
things, on its acceptance of the evidence of the independent witness,
Burge. The proper basis for a direction as to the use of lies as
35 corroboration when told by an accused person has been examined in a
number of authorities including a recent decision of this Court: R. v. McK.
[1986] 1 Qd.R. 476 especially at 482 per Thomas J. To be used as
corroboration the statement in question must, amongst other things, be
“clearly” shown to be a lie by evidence from an independent source.
40 The circumstances of the present case give rise to unease. The first
conversations with the police officers were not contemporaneously
recorded but notes were only made some twelve hours later. The record of
interview was taken under more formal conditions but what is the
significance of the appellant’s having said that the complainant slept “in”
45 and not “on” the single bed? When questioned about this at the trial the
appellant denied that there was any significance in it at all and said that,
in effect, his substantial allegation was and always had been that the
complainant occupied that single bed and not the double bed; that if he
had used the word “in” to the police that would have been because he was
50 not adverting to the significance of the distinction as it was now being
suggested. It is hard to brush this aside. The object of the relevant part of
the police questioning as it has been recorded seems certainly to have
been to establish what the appellant contended had been the location of
the complainant within the room and of the bed occupied by her rather
55 than to hear whether the appellant said that she had slept upon or beneath
the covers on that bed. It seems to me highly likely that in this context
some people might use “in” and “on” interchangeably unless their
450 R. v. KERIM 1988
Macrossan J.
attention was particularly drawn to the possible difference of meaning. In

my opinion, this matter was too flimsy to be left to the jury as possible
corroboration, not least because the independent witness on the point,
Burge, was not asked what he could say about the possibility that the girl
may have occupied the single bed by sleeping “on” it. This was the 5
substance of the version which the appellant said he meant to convey to
the police during their questioning of him. There was no basis upon which
a reasonable jury could conclude from Burge’s evidence that a clear lie
had been told by the appellant to the investigating police. It is made even
more difficult to detect in the appellant’s statement a lie being told out of 10
a consciousness of guilt when it is appreciated that in giving his account of
events at home a day or two later when the further offences were alleged to
have occurred, he readily admitted that the girl had shared his bed
although, as he contended, innocently.
The third matter of possible corroboration was said to come from the 15
evidence of the chemist, O’Reilly. In describing the circumstances of the
alleged rape at the Gladstone motel the complainant said that after
forcing her into the double bed the accused went to the bathroom and
returned holding a condom which he appeared to put on before
committing the act of rape. When the act was concluded she said that she 20
saw the condom on his penis. On the following morning the complainant
said that the act of indecent dealing, the subject of count number 3, was
performed and subsequently when the accused was in the bathroom she
saw on a table in the bedroom the packet of condoms which has already
been described. Is the evidence of the chemist that he had on sale in his 25
shop at Gladstone articles which matched the detailed description given
by the girl evidence which is capable of constituting corroboration on the
counts 3 and 4 allegedly committed in the motel room? The learned judge
directed the jury that it was. It has to be said that in the course of giving
this direction a slip appears to have occurred. The transcript shows that 30
the learned judge said that the evidence of the chemist was capable of
confirming the complainant’s evidence that the events at the motel
“occurred in the manner in which she said, because you have there some
independent evidence of the existence of some condoms in the room, and
part of her story which has to be confirmed in a material particular is the 35
act of penetration”. I have italicised the words in which what I have
described as a slip occurs. No doubt, what the learned judge was meaning
to convey to the jury was that O’Reilly’s testimony demonstrated that
condoms, matching the girl’s description, were available to the accused
and could have been acquired by him and taken to the motel room. There 40
was evidence that the accused had visited the motel room. There was
evidence that the accused had visited the chemist shop in or near the Mall
in Gladstone on the previous afternoon and it appears to have been
accepted that the shop was the one belonging to O’Reilly. The case for the
appellant, as well as denying the offences alleged, denied his having any 45
involvement with condoms. The learned trial judge really dealt very
briefly with the basis upon which O’Reilly’s evidence could be used as
corroboration. He did not later return to the matter and he was not asked
for any redirection on the point. Notwithstanding the extreme
compression of the process of reasoning indicated whereby the 50
complainant’s account of the presence of the condoms in the room might
be regarded as supported by the evidence of O’Reilly, I would not think
that the jury would have been misled or would have missed the point
whereon independent support for the girl’s testimony might be found. It
would have been patently clear to the jury that neither O’Reilly nor 55
anyone other than the complainant was claiming to have seen condoms in
the room.
426 Macrossan J.
If any independent witness had seen such articles in the room I am

prepared to accept that the observation would have been capable of
supporting the girl’s story and of implicating the accused in the
commission of the offences in the manner described by the girl. That is
5 because, on the girl’s account, the use of a condom played such a central
part in the act of the rape as she described it and because the presence of
condoms openly displayed in the room occupied solely by the appellant
and his stepdaughter, would have been eloquent of the existence of a
sexual element in the association over the previous night. I also think that
10 the two separate offences, allegedly committed at the Gladstone motel in
the course of a continuing episode over one night and the following
morning are open to the possibility of being supported by a single item of
corroboration provided that it adequately related to those continuing
events: cf. R. v. Berrill.
15 In the absence of any independent sighting of condoms in the room,
evidence of the availability to the appellant of condoms which to a
striking degree matched the appearance of those claimed to have been
seen by the girl also has the capacity to corroborate. The use of O’Reilly’s
evidence as satisfactory corroboration depends upon its being accepted as
20 sufficiently unlikely that the girl would have been able to give her story of
having seen condoms of the particular description unless the appellant
had taken advantage of an opportunity to purchase that particular type
and bring the condoms to the room. This case differs from the case as it
would have stood if the girl had simply given a bare description of
25 run-of-the-mill articles brought to the room. Here, an argument of high
degree of probability of accuracy in the girl’s account is raised by the
striking similarity between the items said to have been present and those
proved to have been available to the appellant. There is introduced a
coincidence which on all the probabilities is made to appear highly
30 unlikely if the complainant’s version of the appellant’s involvement was
not correct. An interesting comparison may be made with the facts in R. v.
Mitchell (1952) 36 Cr.App.R. 79 where, it had to be supposed, the
complainant could not have heard of the accused’s behaviour towards
another girl unless the accused himself had told the complainant of it, as
35 she alleged, in the course of the commission of the indecencies upon her.
It may be objected that in the present case it was not shown that articles
of the exact description right down to the detail of the reduced price were
not available more widely than from the particular Gladstone pharmacy
so that it was not remarkable that the girl might have been able to give
40 such a conformable description of the item she claimed to have seen.
Indeed, it might be further objected that it had not been shown that the
girl had not taken advantage of the free time which she had in Gladstone
alone on the same afternoon to enter O’Reilly’s shop and observe the
articles openly displayed there. These are objections of some weight, but
45 the very particularity of the description right down to the specially
reduced price diminishes the impression that the items were, in that form,
in any way to be regarded as standard items of commerce and no one
suggested to the complainant that she had entered O’Reilly’s shop when
unaccompanied and seen the items there for herself. I think that
50 O’Reilly’s evidence opened up for consideration coincidences sufficiently
striking to be capable of being regarded as corroboration.
One further matter appears from the summing up about which
reservation might be expressed although no objection was taken to it and
it was not argued. In the course of dealing with corroboration and in
55 particular with the two specific matters which the learned trial judge
directed the jury related to the events at Gladstone, his Honour informed
the jury, in effect, that it might see fit to adopt the approach that if it was
452 R. v. KERIM 1988
Macrossan J., McPherson J.
convinced that the rape at Gladstone had occurred then it might think
that there was no reason why it should not conclude that the other
offences had also been proved. His words appear to bear this meaning and
while something similar could be thought appropriate for mention in
cases when ordinary matters of credibility are under discussion, the 5
introduction of this reasoning in a context where directions on
corroboration were being given brought with it the danger that the
requirement might be overlooked, that corroboration, if it is to operate as
such, must tend to implicate in the particular offences charged. There is
no need to say more in view of what I regard as the necessary result on this 10
appeal where two out of the three items put as capable of constituting
corroborative evidence were not so capable.
One further matter was argued namely that the learned trial judge in the
exercise of his discretion wrongly allowed a certain question and answer
appearing in the record of interview to be put before the jury. I do not deal 15
with this other than to say that in my opinion the objection lacked
substance and the conclusion upon it could not affect the result which I
think must in any event occur.
In this case I do not think it is open to apply the proviso and the
consequence must be a new trial. On three of the five charges there was no 20
corroboration although the jury was incorrectly instructed that there was
material which could so serve. Concern about the effect which the
incorrect direction on corroboration may have played in the jury’s
consideration is not reduced by rather remarkable distinctions which it
drew in the verdicts returned. On each charge the matter had to be 25
decided on a word against word basis and the jury convicted on the first
count but acquitted on the fourth and fifth when it was conveyed to them
that the same general corroboration was available on all of the charges.
The impression is engendered that the direction based upon the physical
condition of the girl may well have played a significant part in the verdict 30
on the first count and was likely to have done so on the second and third
counts.
The appeal should be allowed, the convictions entered quashed and a
new trial ordered.
McPHERSON J.: I regret that I find myself differing in certain 35
respects from the views of the Chief Justice and of my brother Macrossan,
whose reasons for judgment on this appeal I have had the advantage of
reading. The difference concerns the relevance in the circumstances of
this case of the requirement that evidence put forward as corroborative of
the testimony of the complainant should tend to “implicate” the accused 40
person. Because it is my impression that the difference is to some extent
one of principle, I feel bound to state my own views on the matter, which
is one of practical importance in the everyday administration of criminal
justice in this State.
In R. v. Kilbourne [1973] A.C. 729, 741, Lord Hailsham observed that: 45
“The word ‘corroboration’ by itself means no more than evidence
tending to confirm other evidence. In my opinion, evidence which
is (a) admissible and (b) relevant to the evidence requiring
corroboration, and, if believed, confirming it in the required
particulars, is capable of being corroboration of that evidence and, 50
when believed, is in fact such corroboration.”
Apart from its emphasis on admissibility and relevance, this statement
of principle specifies three requirements which, it is universally accepted,
must be satisfied in order for evidence to be capable of amounting to
corroboration. These are (1) that it should be evidence “other” than that 55
sought to be corroborated; (2) that it should tend to “confirm” the latter;
and (3) that it should do so in the “required particulars”. The statement
426 McPherson J.
makes no reference to the additional requirement that the evidence said

to be corroborative should also “implicate” the accused person. The need
for that element is, however, established by the decision of the Court of
Criminal Appeal in England in R. v. Baskerville [1916] 2 K.B. 658, where,
5 at 667, Lord Reading C.J. said:
“We hold that evidence in corroboration must be independent
testimony which affects the accused by connecting or tending to
connect him with the crime. In other words, it must be evidence
which implicates him, that is, which confirms in some material
10 particular not only the evidence that the crime has been
committed, but also that the prisoner committed it.”
The authority of the decision in R. v. Baskerville is not open to question.
It was a decision of a court of five judges who included both Scrutton and
Atkin JJ. It has been applied on many occasions in Australia, both in this
15 Court and in the High Court: see, for example, Hicks v. The King (1920)
28 C.L.R. 36, and Ridley v. Whipp (1916) 22 C.L.R. 381, per Isaacs J, at
392, which is referred to in the reasons for judgment of the Chief Justice
in this case. In stressing the requirement that evidence should be such as
to “implicate” the accused, the Lord Chief Justice was, it is clear from the
20 extract referred to and other observations in those reasons, insisting that
it should tend to identify the accused with the commission of the crime.
The dictionary meaning of the word “implicate” is “involve”, which is the
sense in which it is used throughout the submissions of counsel and the
judgment of the court in R. v. Baskerville. The evidence put forward as
25 corroborative must, the Lord Chief Justice said, confirm in some material
particular “not only the evidence that the crime has been committed but
also that the prisoner committed it”.
Strictly speaking, it may not be correct to treat, as I have been doing
here, the requirement of “implication” as something additional to the
30 conception of corroboration as expressed by Lord Hailsham in R. v.
Kilbourne. After all, the identity of the accused as perpetrator of the acts
constituting the offence charged is an issue in many if not most criminal
trials. In such cases it is an element in proof of the charge, and, if
corroboration is a necessary or at least a cautionary requirement, it
35 should in some material particular be seen to confirm, in this as well as
other respects, the principal evidence in the Crown case against the
accused. Historically, the importance of the decision in R. v. Baskerville is
that it settled finally and authoritatively that the corroboration was
required to extend to the element of identity as well as to the actus reus of
40 the offence itself. Previously there had been a conflict of authority on the
point which had persisted over a lengthy period, as can be gathered from
the authorities referred to both in that case and in the judgment of Isaacs
and Rich JJ. in Hicks v. The King (1920) 28 C.L.R. 36, at 48–49. In
Queensland, the question had, at least in the case of certain sexual
45 offences, been settled by legislation as early as 1891: see The Criminal
Law Amendment Act of 1891, ss 4, 6. Those provisions were in substance
later carried over into The Criminal Code in 1900, where the definition in
s.1 of “uncorroborated testimony” incorporates reference to other
evidence “implicating the accused person”.
50 The defined expression appears in a number of the Code provisions,
which are listed in the notes to Carter’s Criminal Code, 6th ed., at 38. The
offence of rape, which is what we are concerned with here, is not among
them. In any event, the definition in s.1 does not set out literally to define
corroboration but rather to declare what is meant by the expression
55 “uncorroborated testimony” where it appears in the Code. Nevertheless,
whether the question arises under that definition, or at common law
under the principle stated in R. v. Baskerville, it is in my opinion clear that
454 R. v. KERIM 1988
McPherson J.
“implication” is a necessary ingredient of the conception of corroboration

only in cases where identity is relevant. Where, for that reason, it is
relevant, its function is confined to requiring independent evidence
which tends to identify the accused by “connecting” him in a material
particular with the offence alleged to have been committed by someone 5
who is otherwise identified only by the evidence requiring corroboration.
If identity is not in issue, the ingredient of “implication” has no function
to perform; as where a man accused of rape admits having had sexual
intercourse with the complainant on the particular occasion but contests
her claim that it took place without her consent. In such a case, no further 10
or other evidence of his involvement or connection or link with the
alleged crime can be rationally required or reasonably expected: cf. R. v.
McK [1986] 1 Qd. R. 476, 480. Equally, where the complainant’s
evidence of his identity as the perpetrator of the offence is sufficiently
corroborated, other evidence going in a material particular to confirm her 15
testimony that the crime was committed may properly be described as
“corroborative” even though it does not of its own force tend also to
identify the accused or connect or link him with the crime. That is because
it is not necessary that the whole of the corroborative evidence should
emanate from a single source or that it should be embodied in a single 20
statement. No one, I think would be disposed to doubt that proposition,
although, if authority for it be needed, it is to be found in R. v. Farrelly
[1954] N.Z.L.R. 1.
This is, I suspect, at the root of the difference between the members of
this Court in the present case. It is, in my view, not necessary, in order to 25
warrant the description “corroborative”, that each and every item or
category of evidence relied upon for that purpose must simultaneously
perform the dual function of confirming that the crime was committed
and also that the accused was implicated in it. I use the expression
“crime” in this context because it is the term employed by Lord Reading 30
in the passage from R. v. Baskerville. Unfortunately, in relation to rape,
the matter is complicated by two decisions of the Privy Council to the
effect that the corroborative evidence must go to each element of the
offence; or, at any rate, to the element of lack of consent as well as to the
elements of penetration and identity where those elements are in issue or 35
call for corroboration: Chiu Nang Hong v. Public Prosecutor [1964] 1
W.L.R. 1382; and James (1970) 55 Cr.App.R. 299, both of which are
referred to in R. v. Berrill [1982] Qd. R. 508, 523, where I adverted to the
observations of Barwick C.J. on this subject in Kelleher v. R. (1974) 131
C.L.R. 534, 542–543. Since then there has been further weakening of the 40
authority of those decisions, by reason of the termination of the right of
appeal to the Privy Council and also of observations of this Court in R. v.
McK. [1986] 1 Qd. R. 476, 480–481, per Thomas J., with whom Connolly
J. agreed.
Those decisions of the Privy Council are at the root of much of the 45
difficulty experienced in dealing with the matter of corroboration in
criminal trials of rape in Queensland. The notion that each element of the
offence needs to be specifically corroborated appears to be a
comparatively recent development dating from those two decisions. No
trace of it appears in R. v. Baskerville, the facts of which it is instructive to 50
consider. The accused was charged with acts of gross indecency with two
boys named Harry and Charlie. Their evidence was that the acts were
committed by the accused in his flat to which he had invited them both.
He denied committing the acts but admitted that the boys came to the flat
by his invitation, accounting for this by saying that he had invited them 55
there “from philanthropic motives, being desirous of getting them some
better form of employment” ([1916] 2 K.B. 658). A letter, admitted to be
426 McPherson J.
in his handwriting enclosing a ten shilling note, was produced at the trial.
It was addressed to Harry, saying “here is something for you and Charlie”
and fixing a time at which the boys were to meet him.
The Recorder of London, who was the trial judge, warned the jury that
5 they ought not to convict upon the evidence of the boys, who were
accomplices, “unless it was in their opinion corroborated in some
material particular affecting the accused”; but he also told them that the
letter afforded evidence which they would be entitled to find was
sufficient corroboration: see [1916] 2 K.B. 658, at 659. The jury found a
10 verdict of guilty and the accused appealed. The Court of Criminal Appeal
dismissed the appeal immediately after hearing argument, delivering
reasons some time later. On the matter of corroboration, the warning by
the Recorder was said by the court to be sufficient, “if not more than
sufficient” ([1916] 2 K.B. 658, 662–663).
15 To what element of the offence did the corroborative evidence in R. v.
Baskerville relate? According to the Law Reports, Sir Edward Marshall
Hall K.C. for the appellant submitted that the jury had been misdirected
that the letter was sufficient corroboration – “being capable of an
innocent construction, it does not go to implicate the accused”. Did
20 “implicate” there mean “identify”? That was clearly the sense in which
counsel used it later on in his submission, for he said: “The identity of the
prisoner means in connection with the crime, which crime is proved
aliunde”. See the report in 12 Cr.App.R. 81, at 84. It seems that the boys
had been the object of the attentions of other men, because, in
25 commenting on the decision in Cooper (1914) 10 Cr.App.R. 195, which
was a case of incest, Marshall Hall said:
“The facts of the present case show the danger of that decision,
because the bodily condition of one of the boys showed that the full
offence had been committed though that was admittedly with
30 another man.”
I find it difficult to see that the letter, even if taken in conjunction with
some other surrounding circumstances mentioned by Lord Reading at
[1916] 2 K.B. 658, 662, can be said to have supported the boys’ testimony
that they had been indecently dealt with, although it plainly supported
35 their evidence that the accused was “implicated” or involved in, or
connected with, the acts of indecency if any had occurred. The letter itself
and the invitation it contained were, as counsel contended, equally open
to an innocent construction.
Of course, it must be accepted that, in order to be corroborative,
40 evidence is not required to provide unequivocal proof of the
complainant’s testimony. It is enough that it tends to support or confirm
her testimony in a material particular without going the length of
establishing its truth: R. v. Berrill [1982] Qd. R. 508, at 527. Otherwise her
evidence would not be needed at all; “it would be merely confirmatory of
45 other and independent testimony”: R. v. Baskerville [1916] 2 K.B. 658, at
664. Nor, on the authorities as they stand, is it necessary that the
supporting evidence be consistent only with the prosecution case.
Circumstantial evidence may, and ordinarily does, give rise to competing
inferences, yet such evidence can be corroborative: R. v. Stratford and
50 McDonald [1985] 1 Qd. R. 361, 366.25, per Macrossan J. His Honour’s
remarks were cited with approval in R. v. McK. [1986] 1 Qd. R. 476,
480–481. That was a case in which the accused was charged with incest
upon his twelve year old daughter. The evidence in corroboration of her
testimony was, as it often is in such cases, entirely circumstantial. In
55 substance, as set out in [1986] 1 Qd.R. 476, at 479, it comprised evidence
of (a) “unnatural passion”; (b) that the accused indulged in touching the
girl under her dress and about her body; (c) opportunity for the unnatural
456 R. v. KERIM 1988
McPherson J.
relationship to be fulfilled; and (d) what is described as “unintended

proof” resulting from the way in which the accused gave his evidence. On
appeal the complaint was that the trial judge had failed to include in his
direction on corroboration reference to the requirement that such
evidence “confirm the commission of the offence charged in accordance 5
with R. v. Baskerville”; and that the main evidence relied upon (which was
that in (a) and (b) above) was “equivocal in that it could equally well
corroborate an incident of indecent dealing as of incest” ([1986] 1 Qd. R.
476, 479). According to Thomas J. (ibid.):
“The primary submission was that the jury should have been 10
instructed that it could not regard such evidence as corroborative
of incest unless the inference to be drawn from such evidence was
more consistent with incest than with indecent dealing. In short
the submission was that unless such evidence supported the
inference of penetration more strongly than it supported the 15
inference of indecent dealing, then it should not be considered as
corroboration at all.”
In rejecting this submission, his Honour said ([1986] 1 Qd. R. 476, at
480):
“Such evidence may be consistent with both cases; but it is for the 20
jury to say whether it regards the evidence as corroborating the
complainant’s case or not.”
And later on the same page of the report:
“It was also submitted that such evidence should not go to the jury
as evidence capable of corroboration if such evidence is as 25
consistent with the defence case as it is with the prosecution case.
There is no such rule. This Court on previous occasions has
rejected submissions that evidence should not go to a jury as
potential corroboration if it is consistent with an ‘innocent’
explanation (R. v. Stratford and McDonald [1985] 1 Qd. R. 361), or 30
that the jury should be told that evidence should not be regarded as
corroborative if it is consistent with the defence case (R. v. Parker
C.A. 91 of 1981, October 2, 1981 – unreported).”
The reasons for judgment of Thomas J. were, as I have said, agreed in
by Connolly J. The third member of this Court on that occasion was de 35
Jersey J., who, in rejecting the appellant’s submission in that case, said
([1986] 1 Qd. R. 476, at 483–484):
“To accede to that contention would in my view put an
unwarranted gloss upon the well-established principles of
corroboration, a gloss which would find no support in the 40
authorities. The Court should not depart from the principles
clearly established in R. v. Baskerville [1916] 2 K.B. 658, recently
referred to by the Court of Criminal Appeal in R. v. Berrill [1982]
Qd. R. 508.”
In my respectful opinion, the decision in R. v. McK. establishes that 45
corroboration of testimony going to the element of penetration may
consist of circumstantial evidence capable of giving rise to competing
inferences that are equally consistent with the defence case and with the
case for the prosecution. R. v. Baskerville was itself an instance of this. R.
v. McK, is a considered and recent decision of this Court, from which we 50
should be slow to depart, even if we have the power to do so. Of course, it
remains necessary that the evidence relied on as corroborating the
complainant should confirm her testimony in a “material particular”. But
it need not also “implicate” the accused if there is other independent
evidence that otherwise involves him in or connects him with the crime. 55
If the crime is rape, and the two Privy Council decisions continue to be
regarded as good law, then it is necessary that the complainant’s
426 McPherson J.
testimony be confirmed in some material particular by evidence going to

each of the two principal elements of that offence, which are penetration
and absence of consent. But if her testimony of the involvement or
connection of the accused with the offence is otherwise corroborated,
5 then it is not necessary for the corroborative evidence tendered in support
of either of those two elements also itself to “implicate” the accused.
That this is so in the case of the element of non-consent can be
demonstrated by illustrative example as well as authority. A woman
complains that she has been raped by the accused. He admits to sexual
10 intercourse with her but claims it took place with her consent. In
corroboration of her testimony the Crown adduces evidence that shortly
after the occasion of the alleged incident her body showed signs of
bruising and her clothing was torn. That tends to confirm her evidence
that what took place happened without her consent. It nevertheless fails
15 to “implicate” the accused because, although they lend support to her
claim that she did not consent, her torn clothing and bruised body are
incapable of identifying her assailant by connecting him with the absence
of consent on her part. The difficulty becomes even more acute when the
charge is made against two or more men of having raped a girl on the same
20 occasion. In support of her evidence that she withheld her consent she
points to her blackened eye, claiming that it was sustained by a blow
designed to subdue her struggles. The black eye is capable of affording
support for her evidence that she gave no consent. Such an injury is not a
regular concomitant of consensual sexual intercourse. Nevertheless, it
25 fails to connect any particular one of the multiplicity of accused with her
refusal of consent. On that footing it cannot constitute corroboration.
Submissions to the foregoing effect were advanced but rejected in R. v.
Berrill [1982] Qd. R. 508, from which the facts are taken. Leave to appeal
from that decison was refused by the High Court, and it has, I believe,
30 since been followed on many occasions in the courts of this State. In other
words, the requirement that corroborative evidence should “implicate”
the accused has been treated as relevant only where at the trial an issue of
identity arises, and not where the issue at trial is consent (as in R. v.
Berrill), or penetration (as in R. v. McKee). As regards absence of consent,
35 there must, in any event, be few cases in which independent
circumstantial evidence is ever capable of identifying the accused.
Support for the negative assertion “I did not consent” will scarcely if ever
assume the form of evidence that affirmatively identifies a particular
individual assailant. R. v. McK. shows that precisely the same problem
40 arises with the element of penetration in the case of incest. Many of the
victims of incest are in truth victims of rape. Both offences involve
penetration and in both corroborative evidence is a cautionary
requirement.
Examples may be suggested which may be thought to cast doubt on
45 these conclusions. A woman claims to have been raped in Gladstone on a
particular night. It can be independently established that the accused was
in Gladstone on the night in question. Such evidence is plainly not
corroborative of her testimony at any point. It fails to confirm her
identification of him as the perpetrator because it fails to implicate him in
50 any particular that is material. The position is obviously different if there
is independent evidence that they spent the whole of the particular night
alone together in a motel room in Gladstone. In those circumstances his
involvement in or connection with events alleged to have taken place on
that night is, if those events are established to the satisfaction of the jury,
55 fairly capable of being inferred as a matter both of logic and common
sense. The presence of a man all night alone in a motel room with his
fourteen year old stepdaughter may or may not excite suspicion of
458 R. v. KERIM 1988
McPherson J.
impropriety according to the value one places upon the factors of

opportunity and temptation in the light of prevailing conventions and
morals in society; but those are matters for the jury in weighing such
evidence as there is of penetration. Since direct evidence of sexual
intercourse is seldom available, opportunity is a matter which may on 5
occasions assume considerable importance depending on the particular
circumstances: compare and contrast R. v. McGee (1895) 6 Q.L.J. 151; R.
v. Lee [1917] St.R.Qd. 102; Hicks v. The King (1920) 28 C.L.R. 36; Eade v.
The King (1924) 34 C.L.R. 54. What is clear is that if penetration is found
by the jury to have taken place in those circumstances, there is ample 10
evidence to support the girl’s claim that it was her stepfather who was
responsible. It is not necessary to go through the process again by asking
whether the evidence which tends to confirm her testimony that she was
penetrated on that occasion also points to and identifies the accused.
The foregoing, briefly stated, represent the primary facts in the present 15
case which, in my view, were capable of implicating or identifying the
appellant as thoroughly as did the facts in R. v. Baskerville or R. v. McK.
The only remaining element (apart from absence of consent which,
although uncorroborated, has never been raised as a serious issue either
here or at the trial) is penetration. On the footing that corroboration of 20
that element of the offence of rape is also either requisite or cautionary,
there was in my opinion clearly evidence at the trial capable of amounting
to corroboration of her claim that he had sexual intercourse with her. It
consisted of the evidence concerning the sheath contraceptive, or
condom, as it was referred to throughout the trial. The girl said that when 25
she was in the double bed shortly before intercourse took place the
appellant went into the bathroom. She heard rustling or “rattling” of
paper. He came out of the bathroom naked with his penis erect, and he
had something in his hand which she recognised as a condom. She had
seen a condom before because they were the subject of practical jokes at 30
school where students put them in each other’s lockers. When confronted
by the police with the foregoing allegation in the course of an interview on
8 October 1986, the appellant stoutly declared that he had “never used a
bloody condom in my life and I am not going to start now”. He at that
time denied the truth of her statement as put to him by the police that he 35
had used a condom in the motel room at Gladstone.
The evidence about the condom assumed importance because she had
not long after the incident also told the investigating police, and repeated
in evidence at the trial, that on the morning after the alleged rape she saw
a condom packet on the bedside table in the motel room. It was a blue and 40
grey packet with a green price tag with $4.99 printed on it, and the words
“for her pleasure” on the packet. In relation to that, the Crown called a
retail chemist, a Mr O’Reilly, who conducts a business at the Kin-Kora
Mall in Gladstone. He gave evidence that in October 1986 he had for sale
in his shop packets of “Liaison” condoms. The packets came in different 45
colours, of which ex. 2 is an example. The aluminium foil packet is blue
and grey and has upon it the words “textured for her added pleasure”.
When received by Mr. O’Reilly from the wholesaler, the packets of
condoms had on them stickers showing the price which had been placed
there by the wholesaler. The price was $5.87, which is still visible on ex. 2. 50
This particular line was not selling well and, on his instructions, Mr
O’Reilly’s staff placed them on “sale” using a green sticker bearing the
new sale price of $4.99. In October 1986 such condoms were for sale at
that price, being displayed on a long low shelf, at about knee height and
accessible to the public, in Mr O’Reilly’s shop in Kin-Kora Mall. Mr 55
O’Reilly did not remember selling any such condoms on 30 September;
but the appellant admitted having gone to O’Reilly’s shop on the
426 McPherson J.
afternoon of that day, when he bought some after-shave lotion, which was
wrapped up in a packet. He and the girl had gone to the Mall together that
afternoon and then separated. When they met again she looked in the
packet and saw only the after-shave lotion. That was after he had been
5 waiting some time for her to finish her shopping and before they returned
to the motel.
The evidence on this point was plainly of considerable importance.
After taking the girl’s statement and receiving the appellant’s denial,
another police officer went to Mr O’Reilly’s chemist shop on 10 October
10 and obtained the packet of condoms, which is now ex. 2. Its appearance
tended to support the girl’s allegation about the appellant’s use of a
condom on 30 September because she was able on 8 October to recall the
appearance, reduced sale price and sticker colour, as well as much of the
wording on the condom packet. It is true that she might have come by this
15 information from a source other than the packet she claimed to have seen
in the motel room, although it might be thought a remarkable coincidence
that the sale price and sticker colour should be the same unless in fact they
came from the same shop. The family lived on a rural property at or near
Taroom at a considerable distance from Gladstone. It is possible, but may
20 be thought improbable, that on 30 September she went to Mr O’Reilly’s
shop and there saw and memorised the details of the condom packet
which she claims to have seen on the morning of 1 October. If it was part
of a carefully contrived plot to entrap the accused, one might expect her to
have memorised the whole of the inscription “textured for her added
25 pleasure” and not simply “for her pleasure”. Nothing remotely like this
was ever suggested to her at the trial, and curiously her evidence that she
saw a packet of condoms in the motel room seems not to have been
directly challenged in cross-examination.
In any event, these considerations went to weight, which was a matter
30 for the jury. The evidence was quite plainly capable of affording
corroboration of her testimony that he had used a condom in the course of
having sexual intercourse with her. That was a material particular of the
allegation in the Crown case that she had been sexually penetrated. The
evidence was plainly capable of affording independent confirmation of
35 the girl’s testimony and of doing so in a material respect. Not only so, but
even if, contrary to the view of the law I have expressed here, some
independent “implicating” force must be added to her evidence of
penetration, the evidence of Mr O’Reilly satisfied that requirement. It
tended to “connect” the accused with the alleged act of penetration on the
40 night of 1 October. In that respect, it may be regarded as possessing a
characteristic which earlier I said is not often associated with the element
of penetration; that is, a tendency to identify the perpetrator.
That being so, the independent evidence against the appellant on the
charge of rape was unusually strong. Some might think it virtually
45 decisive. The question is whether the judge’s other directions to the jury
on the matter of corroboration in relation to the Gladstone charges (count
2: rape, and count 3: indecent dealing), and the much earlier charge
(indecent dealing), were fatally flawed.
I will first consider the evidence concerning the non-intact hymen.
50 Medical examination of the complainant on 8 October 1986 disclosed no
evidence of tears or trauma to the vulva, but “her hymen was not intact
indicating that she was not a virgin”. That evidence in no way linked or
connected the accused with her loss of virginity; but, for reasons I have
explained, it was not required to do so. It was after all, what one would
55 ordinarily expect of find if, as the girl claimed, she had had sexual
intercourse on 1 October 1986, and on 2 October 1986, as well having a
finger thrust into her vagina on October 2 (count 3) and again on October
460 R. v. KERIM 1988
McPherson J.
4 (count 5). If on 8 October 1986 she had presented with an intact hymen,
a jury of ordinary men and women might have been disposed to doubt her
assertion that any form of penetration, whether penile or digital, had
taken place on any of the occasions alleged. That the hymen was not intact
was therefore some independent evidence that on one or more of the 5
occasions alleged in counts 2 to 5 it was possible for penetration to have
taken place.
Of course, the rupture of the girl’s hymen could have resulted from any
one of a number of other causes quite dissociated from the events alleged
in counts 2 to 5 of the indictment. Of this the jury were reminded by his 10
Honour in plain and unmistakable terms. But the fact that independent
evidence put forward as supporting the complainant’s testimony does not
of itself serve to establish the prosecution case does not mean that it is not
capable of supporting that testimony. As I have said, it is enough that it
tends to support or confirm testimony in a material respect without going 15
so far as to establish its truth: R. v. Berrill [1982] Qd. R. 508, 527. Nor is it
necessary that the evidence in question should be consistent with and
supportive only of the Crown case. For reasons, I have already explained
at length, it is sufficient that it be consistent with that case (R. v. McK.),
which in this instance means the complainant’s testimony with respect to 20
penetration, even if it is also capable of giving rise to inferences equally
consistent with the defence case. Juries are traditionally instructed that
consistency is a guide to credibility, and it is to credibility that
corroboration is directed. Recent complaint is in law not capable of being
regarded as corroborative, but is admitted to show consistency of conduct 25
and so to buttress credibility. Independent evidence consistent with the
complainant’s evidence can in that respect hardly be on a lower plane
than fresh complaint. Of course, the evidence must not merely confirm
the complainant’s testimony; it must also do so in a material particular.
What is a material particular necessarily varies with the circumstances of 30
the complainant. The absence of a hymen is scarcely material in the case
of a middle aged married woman or a prostitute but it may well be so in
the case of a young girl. Where in this hierarchy a fourteen year old school
girl is to be rated, I do not know, which is why I consider it to be an apt
question for the jury to determine. 35
There are unfortunately few cases in which the question has been
considered, as it must be here, as a matter of law. In R. v. Abbott (1898) 9
Q.L.J. 92, evidence was given that the girl’s hymen had been ruptured
within the preceding three months of the alleged incident. On a Crown
case reserved to the Full Court, Real J. giving judgment said (9 Q.L.J. at 40
94), “There is this in corroboration of the girl that she had recently been
carnally known by some man. There is no doubt about that. The hymen
had been recently ruptured.” There, however, the girl was under twelve
years of age; the date of the rupture could be placed within limits of time;
and there was additional evidence that the girl was suffering from 45
gonorrhoea which, said Real J., showed that “some person had
connection with the child”. These features are absent from the present
case, although it will be seen that the evidence was said to be
corroborative and not merely capable of being considered as such by the
jury. The question was also considered in Cooper (1914) 10 Cr.App.R. 50
195, where the accused had been convicted of incest with his daughter
Olive, aged eight years, at East Ham in September, 1913. His wife having
died in January 1912, there was evidence that in June or July of that year
the accused had slept in the same bed as Olive in lodgings at Birmingham.
Medical evidence at the trial was that “there had been penetration, but 55
not necessarily by the male organ: it might have been by some other
substance. The child said that when playing at Birmingham other little
426 McPherson J.
girls were rude to her and were ‘doing the same as dada’.” In dismissing
the appeal, Reading L.C.J. said that sufficient corroboration “can be
found in the medical evidence”; and “if the jury believed the girl’s story, it
was proved that the appellant had slept with her on various occasions,
5 and; no other injury was suggested which would account for the dilatation
of her private parts or the rupture of the hymen” (10 Cr.App.R. 195, 198).
It will be recalled that Cooper was a case singled out for criticism by
Marshall Hall in R. v. Baskerville. In his judgment, however, Lord
Reading observed of Cooper that “that case turned upon special facts
10 relating to the medical testimony. It did not alter the law” ([1916] 2 K.B.
658, 669).
It should be understood that it was not the prosecution case at trial in
the present case that the hymen had been torn on any of those four
occasions. There was, indeed, evidence from the girl of what was
15 described as “the very first time”, which took place “around Christmas
time”, when she was in grade 4, she being then seven years old “turning
eight”. That would have placed the event in about late 1979 or 1980,
according to whether she started school when she was four or five years
old. She testified that on the occasion in question the accused inserted his
20 finger into her vagina “and there was blood all over the sheets and when I
put my pants on it was on my pants.” As a result she suffered a lot of pain.
The incident happened on the double bed in the parents’ bedroom, and,
she said, the accused told her to wash the sheets and pants, which she did,
using the washing machine. Medical opinion at the trial was that such
25 bleeding would “probably” be due to a small tear in some part of the
vulva, but would also be consistent with the tearing of the hymen.
Her evidence on this aspect was that the very first incident was followed
by a series of occasions on which the accused came to the girl’s bed at
home and tampered with her in various ways including inserting his
30 finger in her vagina. It was common ground that he used to go to her bed
at night in order to reassure her when she felt frightened. That may be a
corroborative circumstance. One of those events alleged was the subject
of the charge of indecent dealing in count 1, of which he was found guilty.
As to this, the complaint was made that her evidence did not prove that
35 “the very first time” was when her hymen was torn. Quite possibly the
process was gradual and she may not herself know exactly when it was
torn. Its condition in October 1986, when she was fourteen, admittedly
does not tend to prove that the tearing occurred around Christmas time
1979, when she was nearly eight years old. In the end, the learned trial
40 judge in his charge to the jury described the non-intact hymen as evidence
of only “a general nature”, which did not relate to any of the specific
events referred to in the five counts in the indictment; but which was
capable of supporting her testimony as to those incidents only in the sense
that the jury might say to themselves “Well, if that in fact occurred you
45 would expect her to have her hymen broken”.
Giving to the matter the best consideration I can, I have come to the
conclusion that the trial judge was not in error in directing the jury that
the non-intact hymen was at least capable of supporting the girl’s
complaint of penetration in relation to counts 2 and 3 at Gladstone on
50 October 1 and 2. It is true that she was a good deal older than either of the
two girls in R. v. Abbott or Cooper, and that the rupture of her hymen
could not be said to be recent, as in R. v. Abbott. These were, however,
matters on which the good sense of the jury may reasonably be expected to
operate. To establish on 8 October 1986 that the girl was not a virgin is in
55 my view at least capable of affording some support for her evidence that
the appellant was able to and did penetrate her on 1 and 2 October 1986.
On the other hand, I have also reached the conclusion that the evidence
462 R. v. KERIM 1988
McPherson J.
that she was not virgo intacta on 8 October 1986 is incapable of being
relied upon as evidence of the existence of the same condition some three
to six years earlier during the period when the offence of indecent dealing
in count 1 is alleged to have occurred. The earlier event is so remote in
time as to make it, in my opinion, unsafe for the jury to act upon the 5
evidence of the plaintiff’s condition in 1986 as evidence of her condition
in 1980 to 1983. The appellant’s admitted presence in her bed on
occasions during that period is evidence tending to link him with the
offence charged in count 1, but if additional independent evidence of
indecent acts is required, it cannot fairly be discovered in her condition 10
on examination late in 1986. Like the other members of the Court, I
would therefore set aside the conviction on count 1.
The remaining question for consideration is the effect of the direction
to the jury on what is conveniently described as the “false denial” point.
As to that, I agree with what the Chief Justice has said in his reasons for 15
judgment. In particular, because the distinction between sleeping “in”
and sleeping “on” a bed is not always clearly observed in ordinary usage, I
consider it an error for the trial judge to have directed the jury to view the
appellant’s statements to the police on this point as fairly capable of being
regarded as presenting an instance of false denial in the witness box at 20
trial and so of corroborating the complainant’s evidence. For my own
part, I cannot see that anything is usefully added to the Crown case by
persistently advancing the proposition, particularly in view of recent
reported strictures of this Court.
I am, however, of opinion that the present case is one in which it is, in 25
the case of the convictions on counts 2 and 3, proper to apply the proviso
to s.668E(1). I say this for three reasons. The first is that the direction
concerning false denial was introduced by the words “if you are satisfied
beyond reasonable doubt that the girl neither slept in the bed nor on the
bed but in fact slept in the bed with him …” If the jury had indeed been 30
satisfied of that matter beyond reasonable doubt, they must logically also
have concluded that there was only one explanation of why she was in the
double bed with him. The second is that I consider the evidence
concerning the condom to be so persuasive as to have led the jury to a
verdict of guilty on counts 2 and 3 independently of the other evidence 35
presented as being corroborative. The third is that, even if I am wrong
about the capability of the non-intact hymen to corroborate the
complainant’s evidence on counts 2 and 3, it seems to me that the jury did
not attribute any weight to it. It was presented as evidence capable of
supporting the complainant’s account, although only generally, in respect 40
of all five offences. Yet they acquitted in respect of counts 4 and 5
charging rape and indecent dealing at Taroom on 3 October and 4
October 1986. In my view there has been no miscarriage of justice in
relation to the verdicts and convictions on counts 2 and 3.
I would therefore dismiss the appeals against conviction on counts 2 45
and 3 but allow the appeal and set aside the conviction on count 1 in the
indictment. In the circumstances, including its remoteness in time, I
would not be disposed to order a retrial in respect of that count. However,
since my brothers take a different view of the overall result, I am relieved
of the need to consider that question at any greater length. 50
Perhaps I may be permitted to add the following further comment. In
R. v. Kilbourne [1973] A.C. 729, 741, Lord Hailsham said:
“The word ‘corroboration’ is not a technical term of art, but a
dictionary word bearing its ordinary meaning; since it is slightly
unusual in common speech the actual word need not be used, and 55
in fact it may be better not to use it. Where it is used it needs to be
explained.”
426 McPherson J.
I think that some of the difficulties that arise in this branch of the law
can be avoided if, instead of directing the jury that particular evidence is
capable of corroborating the complainant’s testimony, the judge instructs
5 the jury that such evidence is capable of being considered by them as
independent evidence tending to confirm that testimony in a material
particular, specifying the material particular in question, whether it be
penetration, non-consent, or identity. It is, as this case shows, the use of
the word “corroborate”, that is fraught with risk of misdirection; and that
10 risk can be eliminated, or at least greatly reduced, if use of that word, and
its derivatives like “corroborative”, are avoided in the course of summing
up.
Appeal allowed.
Solicitors: Skinner & Smith (appellant); Director of Prosecutions
15 (respondent).
P. F. ALLEN
Barrister
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R. V KERIM

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426 1988

Buck (1982) 8 A.Crim.R. 208.

was that on or about 2 October 1986 at Gladstone he unlawfully and

dangerous to act on the uncorroborated testimony of the complainant.

having caused the damage. There is no independent evidence as to time

law of Queensland, evidence must corroborate the evidence of the

In R. v. Grills Griffith C.J. said of statements made in the presence and

(Q.) Radcliffe told me that he telephoned you at your home in

(1973) 89 L.Q.R. 552. In the words adopted in that article,

opportunity a different complexion from what it would have

twelve years would indicate, Dr Smith replied “probably a small tear of

and therefore the evidence said to corroborate must possess some

an unwarranted importance. It would be unfortunate if the rule designed

attention was particularly drawn to the possible difference of meaning. In

If any independent witness had seen such articles in the room I am

makes no reference to the additional requirement that the evidence said

“implication” is a necessary ingredient of the conception of corroboration

relationship to be fulfilled; and (d) what is described as “unintended

testimony be confirmed in some material particular by evidence going to

impropriety according to the value one places upon the factors of

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