Bangoura v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0144

RICHARD BANGOURA	Applicant
v
THE KING	Respondent

---

JUDGES:	EMERTON P, PRIEST and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2024
DATE OF JUDGMENT:	28 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 292
JUDGMENT APPEALED FROM:	DPP v Bangoura (County Court of Victoria, 1 August 2022 (Conviction), Judge Georgiou)

---

CRIMINAL LAW – Appeal – Conviction – Rape – Threat to inflict serious injury – Aggravated burglary – Stalking – Complainant alleged assault by stranger – Applicant admitted attending complainant’s residence four times after alleged rape – Applicant gave innocent explanation – Applicant and complainant frequented same hotel – CCTV footage taken after offending showing complainant and applicant in same room at hotel – Whether footage showed complainant recognising applicant – Whether jury acting rationally must have entertained reasonable doubt about applicant’s guilt – Inconsistencies, discrepancies, untruth and other issues in complainant’s evidence – Jury could not rationally exclude possibility complainant recognised applicant at hotel – Effect on complainant’s credibility – Leave to appeal granted – Appeal allowed – Acquittals entered.

CRIMINAL LAW – Incriminating conduct – Lies – Applicant claimed in police interview not to have been to complainant’s unit – Expressed mystification when shown proof of attendance at unit – Admission to telling lies to distance self from false allegations – Whether lies reasonably capable of being viewed by jury as evidence of incriminating conduct – Leave to appeal refused.

CRIMINAL LAW – Evidence – Directions to jury – Incriminating conduct – Direction that lies could only be used as evidence of incriminating conduct if only reasonable explanation for lies was that applicant thought truth would implicate him in serious criminal conduct alleged by complainant – Whether direction to jury required instruction to consider level of satisfaction separately in relation to each charge – Applicant’s belief a matter to be addressed by reference to charges as a whole – Kim v The King [2023] VSCA 228, distinguished – Leave to appeal refused.

Jury Directions Act 2015 ss 20, 21, 22.

Davis v The Queen (2016) A Crim R 492; [2016] VSCA 272, discussed; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, applied.

---

Counsel
Applicant:		Mr D Dann KC with Ms CJ Williams
Respondent:		Ms S Clancy
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

EMERTON P
McLEISH JA

PART A:. BACKGROUND

Charges 1–5

Stalking (charge 6) and other events following the initial offending

Evidence at trial

Other residents of ES’s block of units and their associates

Ross Allamby

George Kalogiros

Forensic scientist

Police witnesses

Record of interview

Applicant

PART B:. PROPOSED GROUND 1 — WHETHER VERDICTS UNSAFE AND UNSATISFACTORY

Test to be applied

Evidence inconsistent with ES’s evidence

Whether ES and the applicant knew each other prior to 2 November 2018

ES’s description of the offender’s hair, height and ‘hi viz’ jacket

Inherent deficiencies in ES’s evidence

ES’s evidence about her bedsheets

ES’s evidence about the duration and timing of events on 2 November 2018

ES’s movements between the initial offending on 2 November 2018 and her complaint to police on 4 November 2018

ES movements between 2 November 2018 and the time she was told the offender had been arrested

ES’s description of the knife

The applicant’s birthmark

Differences in ES’s accounts of the offending

ES’s evidence about penetration

ES’s evidence about the offender’s statements about ejaculation

The order of events during the initial offending

ES’s evidence about the offender’s first threat

The offender smoking

The offender’s name

Other weaknesses in the prosecution case

DNA evidence

The applicant’s police interview

The applicant’s lies

Good character evidence

Identification evidence

Consideration

PART C:. PROPOSED GROUND 2 — APPLICANT’S LIES AS EVIDENCE OF INCRIMINATING CONDUCT

Background

Statutory provisions

Judge’s ruling

Submissions

Consideration

PART D:. PROPOSED GROUND 3 — DIRECTIONS ON INCRIMINATING CONDUCT
PART E:. CONCLUSION

PRIEST JA:

Overview

Relevant chronology

Ground 1: Discussion and analysis

Did ES and the applicant know each other?

Claim that ES used herself as ‘bait’

The issue of penetration

The bedsheets

Birthmark

Attacker took off his disguise, gave his name, smoked a cigarette and came back

Length of time attack took

Description of hair, height, knife, and high-visibility jacket

DNA

Lies

Consideration

Grounds 2 and 3: Lies

Conclusion

EMERTON P
MCLEISH JA:

On 1 August 2022, following a trial by jury, the applicant was found guilty of two counts of rape, two counts of threat to inflict serious injury, one count of aggravated burglary and one count of stalking.
Other than the charge of stalking, the alleged offending took place in the early hours of 2 November 2018. The prosecution case at trial was that the applicant, wielding a knife, approached the complainant (‘ES’) when she arrived at her home in a block of apartments, telling her to get inside and not to scream (charge 1, threat to inflict serious injury). He then moved inside ES’s unit, still wielding the knife, and told her to undress (charge 2, aggravated burglary). Then the applicant raped her twice (charges 3 and 4). When the applicant eventually left ES’s apartment, he told her not to call the police or he would ‘cut [her] up’ (charge 5, threat to inflict serious injury).
It is not in dispute that the applicant attended ES’s unit later that night and also late at night on 3 and 5 November, as well as in the early hours of 7 December 2018. On each occasion, the applicant knocked on her door or rang her doorbell, but ES did not answer and the applicant left. The prosecution alleged that the applicant returned to ES’s unit either to harm her, or to make her fearful or apprehensive about her safety. This course of conduct constitutes the stalking charge (charge 6).
While the prosecution case was that the applicant and ES were not known to each other prior to the offending, the applicant claimed that the two of them had interacted at a local sports bar they both frequented. The applicant’s case was that he had attended ES’s unit on the dates relevant to the stalking charge to collect money ES owed him. In respect of the offending the subject of charges 1–5, he said that it either did not occur or that he was not the offender.
The applicant now seeks leave to appeal, on the following three grounds:
1.The guilty verdicts of the jury are unsafe and unsatisfactory.
2.The trial of the applicant miscarried in circumstances where the prosecution were permitted to rely on the applicant’s lies as evidence of incriminating conduct for the charges 1–5 on the indictment.
3.The learned trial judge erred in his directions to the jury on incriminating conduct.
For the following reasons, leave to appeal should be granted and the appeal allowed on the first of these grounds.[1]
PART A:BACKGROUND
[1]The applicant required an extension of time within which to seek leave to appeal, which was granted on 10 January 2024.

Charges 1–5

At the time of the alleged offending, ES was 71 years old and lived alone at her unit in Mordialloc.
On 1 November at 11:40 pm, ES arrived at the Mordy HQ Hotel (‘Mordy HQ’), where she spent time playing a poker machine. ES left to return to her unit, which was about a four minute walk away, at 2:39 am.
The applicant was also at the Mordy HQ that night. CCTV records indicate he attended between 12:35 am and 2:01 am. There was limited CCTV footage available during that time, and none showing the applicant and ES interacting at the hotel.
The events that followed, which encompass charges 1–5, were recounted in ES’s evidence-in-chief. She said that, as she put her key in the door, she heard a man’s voice behind her saying ‘get in’ and ‘don’t turn around’. The man was armed with a knife, wore a fluorescent coat or jacket and had covered his face with mesh material. He said ‘don’t scream or I’ll stab you’, and held the knife to ES’s throat. He had his left hand over ES’s mouth.
The man and ES went inside her unit. Once they were just inside the front door, while still holding the knife, the man told ES to undress. He then asked where the bedroom was, and told ES to ‘get on the bed’. Once ES was on the bed, the man said ‘open your legs’. Then he got undressed and removed the material covering his face.
The man attempted to insert his penis into ES’s vagina but was unable to fully penetrate her. ES said she experienced a lot of pain, and said to the man, ‘you’re hurting me’.
ES said she needed to use the bathroom. The man let her, but stood at the bathroom door watching her. Then he said ‘get back on the bed’.
The man attempted to insert his penis into ES’s vagina again, but struggled to do so. He asked whether ES had any cream and she showed him a tube of hand cream that was on her bedside table. He applied the hand cream to his penis and ES’s vagina. He then penetrated ES twice, but ‘not fully’ (charges 3 and 4). During the first penetration, she told him that he was hurting her. He told her that he was nearly ready to ejaculate and withdrew, before penetrating her again.
ES was again permitted to use the bathroom. Once again, the man stood in the doorway and watched. He made ES return to the bed, where the two of them lay down for what ES estimated to be 15–20 minutes.
ES and the man got dressed. The man then asked for a cigarette and ES gave him one. She told him he would have to smoke outside. He smoked the cigarette with one foot outside and one in the lounge. He asked for ES’s name, and she gave it to him. When she asked what his name was, he said ‘Michael’. Then he left ES’s apartment. As he was leaving, he told ES he would cut her up if she told the police what had happened. It was around 3:20 or 3:30 am when the offender left.

Stalking (charge 6) and other events following the initial offending

At around 10:40 pm on 2 November 2018, the applicant attended ES’s address and rang her doorbell. ES said in her evidence-in-chief that she looked through the peephole in her front door and saw a man,[2] but did not let him in. Her evidence was that she recognised the man by his side profile as the man who had assaulted her earlier that day. This evidence was not subject to cross-examination, even though, according to the police evidence, she said on 4 November 2018 (when she first went to the police) that she had not gone to the door on this occasion. Nothing is sought to be made of this discrepancy, but we will return to it later.
[2]As already mentioned, it is not contested by the applicant that he attended ES’s unit on 2, 3 and 5 November 2018, and 7 December 2018.
On 3 November, the applicant returned to ES’s unit at around 10:40 pm and rang the doorbell. She looked through the peephole and recognised the man who had attacked her, from the side profile of his face. She did not let him inside.
On 4 November 2018, ES attended the Mordialloc Police Station to report the offending. She made a formal statement the following day. On both occasions, her friend George Kalogiros accompanied her to the station.
At approximately 10:40 pm on 5 November 2018, the applicant again attended ES’s unit and rang her doorbell. She again looked through the peephole and recognised the man from a side view of his face. ES called the police, who arrived at her unit within minutes, but did not locate the applicant. A decision was subsequently made by the police to install CCTV cameras at ES’s property.
The applicant returned to ES’s unit a few minutes before 1:00 am on 7 December 2018. He rang her doorbell and stayed outside the unit until 1:02 am. The police were called and arrived at about 1:05 am, but were not able to locate the applicant. The applicant was, however, filmed by the CCTV cameras at ES’s unit.
Later that day, at 11:30 am, a search warrant was executed at the applicant’s address and he was subsequently arrested. Items of interest were photographed and ultimately tendered as evidence at trial.
At 3:06 pm the applicant was interviewed by police. He was told that he was being interviewed in relation to a sexual assault. He said he did not know ES and that he was not involved in the offending. When the police said that the man who committed the crime had attended ES’s unit early on 7 December 2018, the applicant asked whether the man had been caught. He was then shown CCTV footage showing the man at ES’s unit, and he identified the man as himself. Despite positively identifying himself in the footage, he said he did not recall attending ES’s unit and continued to deny responsibility for the offending.

Evidence at trial

The trial commenced on 26 May 2022. After the prosecutor fell ill, the judge discharged the jury on the fifth day. A second trial began on 12 July 2022.
The applicant gave evidence at trial. He addressed the police interview he gave on 7 December 2018, saying that when he denied attending ES’s residence, he was doing so because he was scared and trying to distance himself from the offending. He said he and ES knew each other, that he had lent her $535 and that he kept returning to her unit to recover that debt. The defence case, accordingly, was that the applicant did not intend to harm ES, or make her fearful or apprehensive about her safety, such that the fault element for the stalking charge was not made out. As for the offending subject to charges 1–5, it was said that some other person was responsible for it, or that the offending never occurred.

ES

After describing the initial offending and the late night visits to her unit as set out above, ES gave evidence about subsequent events. She said that she did not see anyone during the day on Friday 2 November 2018.
ES said that she reported the offending to police on Sunday 4 November 2018. She said that she had told her friend George Kalogiros about the offending by that time, and he had convinced her to report it to police. Mr Kalogiros accompanied ES to the police station when she made her report.
ES said that she went out with her friend Ross Allamby in the evening on 5 November 2018. They went to the Mentone RSL, and were there from around 7:00–10:20 pm. Afterwards, they went to her unit for a cup of coffee. She said that, while Mr Allamby was there, the offender knocked on her door again. She told Mr Allamby not to move, went to her bedroom and called the police. The police arrived within three to four minutes, but did not apprehend the man who had knocked on ES’s door.
ES said the man returned again one week later at around 10:40 pm. Once again, she contacted the police in response, but the police were again not able to apprehend the alleged offender.
Despite ES’s evidence that the man returned a week after 5 November 2018, it is clear from the evidence as a whole that, in describing the final encounter, she was recounting the events of 7 December 2018. Those events were the subject of cross examination. ES agreed that she would not have walked alone between her unit and the Mordy HQ before knowing the applicant had been arrested. Defence counsel took ES to photos showing her at the Mordy HQ on 7 December 2018, and told ES that the applicant had not yet been arrested at that time. She said that she had probably regained her nerve by that point, and added that she used herself as ‘bait’ to lure the offender back to her unit and call the police again.
During cross-examination, other inconsistencies in ES’s testimony were exposed by defence counsel. These, and other aspects of her evidence, are relied upon under the applicant’s proposed first ground of appeal, and it is convenient to set out the relevant evidence in that context.

Other residents of ES’s block of units and their associates

Aleckxiia Gocky lived with her mother in the same block of units as ES. She was socialising at the units in the evening of Friday 2 November 2018, along with her partner Zane Gakovic, Tiffany Johnstone (another resident) and Jessica McLure (a friend of Ms Johnstone). Ms Gocky gave evidence that a man came to the units at about 9:00 pm and knocked on ES’s door. She said that no one answered the door in response. Ms Gocky and the others she was with greeted the man, and he ‘didn’t really say much back’. The man spent about three minutes at ES’s door before leaving. She said the group said hello to him and as he was leaving he ‘pretended’ to take a phone call. She said she saw the man again later that night, at around 11:00 pm, as he walked past her kitchen window. She described the man as around six feet tall, slim, African-American and having shaved black hair.
Ms Gocky also gave evidence that she saw ES arrive at the units in her car by herself earlier that Friday, during the morning.
Mr Gakovic gave evidence that he spent the Friday visiting Ms Gocky. He said a man arrived at ES’s unit sometime between 8:00 pm and 9:30 pm. Like Ms Gocky, he described the man knocking on ES’s door. To do so, he opened a flyscreen. Mr Gakovic mentioned that someone from the group told the man ES was home, although ES did not answer the knock. The sum of his evidence was that the man was not at ES’s door for longer than a few minutes before leaving. Mr Gakovic said that the man was a ‘darker man’, and that his hair was ‘shaved or really short’.
Ms Johnstone and Ms McLure gave statements that were read into evidence.
Ms Johnstone referred to the socialising at the units on the Friday, and said a man appeared at around 10:30 pm and went straight to ES’s unit. She did not remember him knocking on the door. She said he ‘stood there for about three seconds … [t]hen he just left’. Ms Johnstone said that the man was ‘very dark coloured, maybe Nigerian, and very tall and lanky with a bald head’.
Ms Johnstone also described a man attending the units on Saturday 3 November. She said that from about 10:45–11:00 pm she went outside to smoke, and that she saw the same man who attended on the Friday arrive. She recognised the man ‘by his bald head’. The man said ‘Hey, is the woman that lives in that house there home’? Ms Johnstone said she was not sure, and that the man then knocked on the door and left after no one answered.
Ms McLure’s statement also described the socialising on the Friday and said that an ‘African-American’ man arrived at 10:30 pm. She said he was ‘quite tall … about six foot [and] bald’. She described the man approaching the door of a unit, not knocking once he reached it, standing at the door for about 30 seconds and then leaving.

Ross Allamby

Mr Allamby was a friend of ES. On 5 November 2018, ES and Mr Allamby went to dinner at the Mentone RSL Club with a couple they knew. Mr Allamby drove and parked at ES’s unit before they were both picked up by the couple. They returned to ES’s unit at about 10:30 and decided to have a cup of coffee together. After about seven or eight minutes, ES’s doorbell was rung four or five times.
Mr Allamby said that ES asked him not to answer the door. She asked him to be quiet and said she wanted to answer the door herself. He said ES appeared ‘very upset’ and ‘very rattled’. He said that ES approached the door, looked through the peephole and said, ‘oh no, not again, that black man is at my door’. ES went to her bedroom to make a phone call (apparently to the police). Mr Allamby said that, while she did that, he heard tapping sounds on the front door. About four minutes later, the police arrived. At that time, Mr Allamby said ES continued to appear distraught, visibly upset, worried and concerned.

George Kalogiros

Mr Kalogiros was a good friend of ES and had known her for over 10 years. He said that ES called him at around 9:00 am on Friday 2 November 2018, and told him she had been assaulted. After the phone call he went to ES’s apartment at around 10:30–11:00 am. There she told Mr Kalogiros about the offending. ES said that, at that point, she had not told anyone else. Mr Kalogiros said ES appeared to be ‘very horrified’ and that she ‘had fear’. Mr Kalogiros said that he and ES then went for a walk, and they ended up spending the day together until around 7:00–8:00 pm.

On Sunday 4 November, ES and Mr Kalogiros met with each other again. She told him that she had met a friend for pizza the night before, and that after she had arrived home at around 11:00–11:30 pm she heard her doorbell ring repeatedly. She told Mr Kalogiros that she looked through the peephole and saw the man who assaulted her standing there. Mr Kalogiros said that he encouraged ES to report the offending to the police.
Mr Kalogiros said that later that day, at about 8:45 pm, he and ES went to the Mordialloc Police Station to report the offending. He also joined ES the following day when she returned to the police station to make her statement.

Forensic scientist

The prosecution led DNA evidence of Ms Natalie Pederson, a forensic scientist. Ms Pederson was responsible for interpreting the results of DNA testing of a number of items relevant to the Crown’s case, most significant among them the tube of hand cream said to have been used by the applicant during the offending. Ms Pederson concluded that the tube contained a ‘partial mixed DNA profile’. It was partial because it only returned results for 19 of the 21 sites, owing to the fact that the sample used for testing contained a low amount of DNA. It was ‘mixed’ because the DNA of two separate contributors was evident in the sample. One of the two contributors was ES, described as an ‘assumed contributor’, and the other contributor was unknown.
Ms Pederson said that the test results gave no indication whether the second contributor was male or female.
Ms Pederson produced two separate ‘likelihood ratios’. She explained that a likelihood ratio compares the probability of a match with a person of interest with the probability of a match by chance. The first likelihood ratio was calculated by reference to data from an Australian Caucasian database and produced a likelihood ratio of 8,300. The second likelihood ratio was calculated by reference to a Guinean database and produced a likelihood ratio of 1,200. In his charge, the trial judge summarised the effect of the evidence as follows:
To address the possibility that someone else was responsible for the DNA obtained from the tube of hand cream, Ms Pedersen produced the likelihood ratios and that is why they were produced. But the likelihood ratios, it’s important to understand what they mean. They do not mean that [the applicant] is 8,300 times or 1,200 times more likely to have committed the offence than a person chosen randomly. It simply means that roughly one person out of every 8,300 of the Australian Caucasian population and one person out of every 1,200 of the Guinean population has a DNA profile that matches the DNA of the tube of hand cream. This means in a country the size of Australia which has a population of over 25 million and, if my calculations are correct, there are likely to be over 3,000 who could have been responsible for the DNA on the tube of hand cream.
Ms Pederson also referred to a scale known as a ‘verbal equivalent scale’. The verbal equivalent scale sets out likelihood ratios of various ranges and provides a ‘verbal equivalent term’ that is intended to reflect the value of a particular likelihood ratio. One range on the scale is 1,000–1,000,000, which, it can be seen, covers both likelihood ratios determined by Ms Pederson. The verbal equivalent term for that range is ‘provides very strong support’.
During cross-examination, Ms Pederson agreed that, where there is already DNA on a surface, it is possible for that DNA to be transferred to another surface when a person touches the original surface and subsequently touches the subsequent surface. Defence counsel asked whether this type of ‘secondary transfer’ degrades the DNA. Ms Pederson said it depends on what the secondary events are. She said it was possible that the quality of the sample from the hand cream tube was affected by secondary transfer, but only in the sense that it is always possible that DNA is affected in that way.
Ms Pederson also agreed that the likelihood ratio for the Guinean population was on the cusp of strong to very strong.

Police witnesses

Several members of Victoria Police gave evidence about the investigation. It is necessary to refer to the evidence of Leading Senior Constable Duggan, who took ES’s report on 4 November 2018; Senior Constable Ashley Ferguson, who attended ES’s unit following her calls to the police on 5 and 7 November; Sergeant Stevens, who worked on the investigation of ES’s complaint; and Detective Sergeant Purdie Reve Long, the informant.
On Sunday 4 November 2018, LSC Duggan was working at Mordialloc Police Station. He said that ES and Mr Kalogiros came to the station that evening, and that ES told him she wanted to report a rape. He took notes outlining ES’s report. Almost two months later, on 27 December 2018, he relied on those notes to draft a formal statement. Aspects of these documents are referred to during the discussion of proposed ground 1.
Senior Constable Ferguson gave evidence that at around 10:39 pm on Monday 5 November 2018, he was instructed to attend ES’s unit to investigate the presence of a ‘suspicious character’. He arrived two to four minutes later, where he found ES in a ‘state of panic’. He said her voice was broken, that she sounded very nervous and that her hands were visibly shaking.
Senior Constable Ferguson said that he was again instructed to attend ES’s unit on 7 December 2018, at 1:04 am. He said the circumstances were very similar. He arrived at the unit a minute after receiving the instruction to attend. He said that ES was ‘quite a bit more stressed … than the previous occasion that [he had] attended’. He said ES told him that she had been sleeping when she heard a knock on the door. ES realised it was the offender, and armed herself with a knife at that point.
Sergeant Stevens gave evidence that he reviewed CCTV footage obtained from the Mordy HQ, and identified the applicant as a person who fitted the description of the offender described by ES. He ascertained the applicant’s identity by checking the membership card used by the applicant on his visits to the Mordy HQ. Sergeant Stevens said he was shown CCTV footage taken at ES’s apartment on 7 December 2018, showing the alleged offender attending ES’s unit. Sergeant Stevens said he recognised that man as the person he had identified from the CCTV footage taken from the Mordy HQ.
Sergeant Stevens said that a search warrant was executed at the applicant’s address. Photographs taken at the applicant’s property were tendered, including photographs of two different knives, a high visibility jacket, various other clothing and footwear, the applicant’s Mordy HQ membership card and the applicant’s car.
Detective Sergeant Long was the informant in the matter. She took a statement from ES on 5 November 2018.
Detective Sergeant Long was taken to CCTV footage from the Mordy HQ beginning late on Thursday 1 November 2018. The footage showed ES arriving at 11:40 pm and leaving at 2:39 am. It showed the applicant arriving at 12:35 am and leaving at 2:01 am. Detective Sergeant Long gave evidence that none of the CCTV footage captured any interaction between ES and the applicant. However, two hours of CCTV footage from inside the Mordy HQ covering the period 1:00–3:00 am was missing.
Detective Sergeant Long was then shown footage from 7 December 2018. She agreed that it showed ES arriving at the Mordy HQ at 12:11 am, and the applicant arriving at 12:13 am. She was taken to CCTV footage of the sports bar area inside the Mordy HQ. In that footage, the applicant and ES briefly appear together in the same room. The footage is described in more detail later in these reasons; the parties contest whether or not ES and the applicant recognised each other. Detective Sergeant Long agreed that the footage indicated that ES left the Mordy HQ at about 12:45 am, and that the applicant left at 12:52 am.
She was also referred to a series of images derived from the CCTV footage showing the applicant at ES’s unit from around 12:57 am on 7 December 2018, and said the footage showed the applicant standing at her door for around five minutes before leaving.

Record of interview

Detective Sergeant Long and Sergeant Stevens interviewed the applicant on 7 December 2018. The substance of the interview is relevant to each of the proposed grounds of appeal, and it is convenient to leave most details until they arise for consideration later in these reasons. In the meantime, a brief overview is provided.
The applicant said he had been a member of the Mordy HQ for four years. During the course of that discussion, he told an anecdote about encountering a ‘grandmother’ at the Mordy HQ, and suggested he was not attracted to her. He called her ‘an old druggie’.
Eventually the applicant was told by Detective Sergeant Long that the police were conducting the interview to discuss the alleged offending. He said he had never been to the street ES lived on, except perhaps in passing, and did not know where it was. He repeatedly asked to see a photograph of the victim. He was shown a photograph of ES’s block of units. He said he did not know anyone in the units. He was shown a photograph of ES in the foyer of the Mordy HQ, and, after saying that he could not see her face, said he did not recognise her. He said he really hoped he was not drunk. He was told ES’s name, and asked if she was the wife of a person he knew, without claiming to know her.
Detective Sergeant Long provided an account of the alleged offending to the applicant. He said that he ‘really need[s] to know this woman’, and that he was shocked. Detective Sergeant Long told the applicant about the events the subject of the stalking charge. The applicant did not acknowledge attending ES’s unit on any of those occasions.
The applicant was told that the offender returned to ES’s unit early on 7 December. He said ‘did the police [catch] him’? The applicant was then shown a still from the CCTV footage showing the alleged offender’s attendance at ES’s unit on 7 December 2018. He acknowledged that the man shown in the footage was himself, but said he had no recollection of being there. For the remainder of the interview, he was unable to explain his presence at ES’s unit and expressed mystification in response to the evidence he had been shown.

Applicant

As indicated earlier in these reasons, and despite what was said in his police interview, the applicant’s evidence at trial was that he and ES were in fact known to each other prior to the offending. In a rather conditional way, he acknowledged that he had been lying in his interview. He said, ‘my intent in that record of interview was to distance myself [from the offending] … if it’s considered as a lie, then I’m terribly sorry … but my intent was not to lie, but to distance myself’.
The applicant said that he had met ES in December 2014, after becoming a member of the Mordy HQ. He said the gaming room at the Mordy HQ was smaller than the court he gave evidence in, and that he stood out as a Guinean man, suggesting it would be unlikely for ES not to have known who he was. He said that he had given ES money in the past, and had lent her $150 in July 2018, and again in October 2018. He estimated that he had lent ES about $535 in total.
The applicant gave evidence that he attended ES’s unit on the evening of Friday 2 November 2018 because they had encountered each other at the Mordy HQ the evening before, and she had told him to come to her unit the following evening so she could pay him back $200. He said he knew where ES lived, having dropped her home in the past. He gave evidence that he did go to ES’s unit to recover the $200, but she did not answer the door when he knocked or rang the doorbell. He gave evidence that he attended ES’s unit again on the Saturday (3 November) and the Monday (5 November).
The applicant said that he encountered ES at the Mordy HQ on 7 December 2018. He said they had an interaction that led him to believe she was getting him the money she owed him. Instead, the applicant says she left to go home. At that point, he resolved to go to her unit. When he knocked on her door, he said that he heard ES say ‘who is it’? He said he was there for the money. He says ES responded by saying ‘leave me alone, I want to sleep’. He said he told her to tell him if she didn’t have the money, but she did not respond. Eventually, when he realised she was not going to give him the money, he left.
PART B:PROPOSED GROUND 1 — WHETHER VERDICTS UNSAFE AND UNSATISFACTORY

Test to be applied

The first proposed ground of appeal relies on s 276(1)(a) of the Criminal Procedure Act 2009, which requires the Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In order to succeed the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charges. The question for this Court is whether it was open to the jury, acting rationally, to be satisfied to the criminal standard that the accused was guilty.[3]
[3]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); Pell v The Queen (2020) 268 CLR 123, 146–7 [42]–[45] (‘Pell’) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Dansie v The Queen (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
The High Court in Pell stated that this Court, ‘in a case such as’ Pell, must proceed on the assumption that the jury assessed the complainant’s evidence as credible and reliable.[4] That is because the assessment of credibility and reliability of a witness by the jury proceeds on the basis of what the jury has seen and heard in a trial, which is not to be duplicated by the appellate court.[5]
[4]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[5]Ibid 144–5 [37].
In some significant ways, this case differs from Pell. First, the applicant in this matter gave evidence. The jury therefore had the opportunity to form a view as to his credibility and reliability which is denied to the appellate court. Plainly, the jury did not accept the applicant’s evidence denying that he had committed the offences charged. It does not follow, however, that the jury found the applicant wholly lacking in credibility or reliability. We do not understand Pell to require us to commence from the position that the jury did not accept any of the evidence the applicant gave.
Secondly, the applicant conceded in his evidence that he had told a number of lies in his interview with police, and explained that he had done so, not because he believed that he had committed the offences (or any of them), but because he wanted to distance himself from the offending. For the reasons given in relation to proposed ground 2, it was open to the jury to find that the only reasonable explanation for the lies told by the applicant was that he believed himself to be guilty of the offences with which he was charged (other than the stalking offence, charge 6). The jury had the benefit, which we do not, of forming a view of the credibility of the applicant when he explained in evidence why he had told the lies to police.
Otherwise, like Pell, this is a case where the jury was faced with the task of deciding whether the evidence of ES, upon which guilty verdicts depended, should be accepted in light of the evidence in the case as a whole. We therefore consider that the approach outlined by the High Court in Pell should be followed in the present case despite the differences we have identified.
Based on Pell, then, if the jury’s verdict is to be displaced, it must be by reference to something other than ‘the evaluation of the witnesses in the witness-box’.[6] In that way only, the appellate court may ultimately not accept the truth of the complainant’s evidence. That is the fundamental issue in a case such as the present, where the question is whether a verdict dependent on acceptance of a complainant’s evidence was ‘unreasonable or cannot be supported having regard to the evidence’.[7]
[6]Ibid 145 [37].
[7]Criminal Procedure Act 2009, s 276(1)(a).
As articulated in Pell, the question is whether upon an examination of the record, the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacy in the complainant’s evidence, or in light of other evidence.[8] Put differently, the question is whether, having regard to those matters, the jury must (rather than might) have entertained a doubt as to the applicant’s guilt.[9]
[8]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); see also M (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ). See Gardner (a pseudonym) v The King [2024] VSCA 83 [85]–[89] (Emerton P, McLeish and Macaulay JJA).
[9]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]).
The appellate court is not simply giving effect to its own view in place of that of the jury, so as to substitute trial by a court of appeal for trial by jury.[10] Full allowance is given to the advantages enjoyed by the jury in having seen and heard the witnesses give evidence in the unfolding criminal trial.[11] In this case, that extends to the assessment of the evidence given by the applicant, albeit that we are not in a position to know whether the jury rejected all, or only some, of his evidence. Correspondingly, we do not know whether the jury believed every aspect of ES’s evidence, much of it, or only ‘a sufficient amount as to enable them to be satisfied beyond reasonable doubt of the applicant’s guilt’.[12]
[10]M (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ).
[11]Ibid 493, 494.
[12]Parker v The King [2024] VSCA 209 [83] (Niall, Taylor and Boyce JJA) (‘Parker’).
Pell requires that, if the appellate court considers that it was not open to the jury to be satisfied of the case against the accused beyond reasonable doubt, it must set aside the verdict given by the jury based on that evidence. In that way, the court’s doubt will, in effect, be a doubt which a reasonable jury ought to have had.[13]
[13]Ibid 494.
The approach described in Pell differs from asking whether the appellate court has a doubt about the conviction and then considering whether the conviction is explicable, despite that doubt, by the advantages enjoyed by the jury.[14] Especially in a case such as the present, where the jury’s assessment of the credibility and reliability of the complainant and the accused respectively may affect any evaluation of their competing evidence, the latter approach risks inverting the process by conducting, in effect, a trial ‘on the papers’, and thereby blurring the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court.[15] Instead, the appellate court starts on the assumption that the jury found the complainant’s evidence credible and reliable. As explained above, the court does not make the contrary assumption in respect of the evidence of the accused person.
[14]Paull v The King [2024] VSCA 193 [26] (McLeish and Orr JJA). See also ibid 501 (Brennan J), citing Chidiac v The Queen (1991) 171 CLR 432, 451–2 (Dawson J).
[15]Pell (2020) 268 CLR 123, 145 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); M (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ).
The question is therefore whether, by reason of inconsistencies, discrepancies or other inadequacy in ES’s evidence, or in light of other evidence, the jury, acting rationally, must have entertained a reasonable doubt about accepting her evidence as to the charged events, upon which conviction depended.[16] As set out below, senior counsel for the applicant relied on multiple such inconsistencies, discrepancies and inadequate features of the evidence of ES, together with other evidence said to cast doubt upon that evidence. It was submitted that these various matters constituted improbabilities in ES’s account which compounded to give rise to a reasonable doubt in the applicant’s guilt, which the jury ought to have entertained.[17]
[16]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
[17]Pell (2020) 268 CLR 123, 150 [56] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

The following paragraphs summarise the evidentiary issues raised by the applicant and the respondent’s submissions in response. Senior counsel for the applicant said that he relied on 29 distinct matters, and the compounding effect of each of them. Counsel’s numbering system was somewhat elusive. We have found it convenient, without numbering, and also conscious that the applicant’s arguments transcend such categories, to group the matters relied upon as follows:
(a)evidence inconsistent with ES’s evidence;
(b)inherent deficiencies in ES’s evidence;
(c)differences in ES’s accounts of the offending; and
(d)other weaknesses in the prosecution case.

Evidence inconsistent with ES’s evidence

Whether ES and the applicant knew each other prior to 2 November 2018

The applicant says that ES and the applicant were both members of the Mordy HQ, which his counsel described as ‘an intimate venue’. He had been a member since 2014. He said that he and ES would interact once or twice a week, and that on occasion he would lend her money.
In contrast, ES’s account of being sexually assaulted and stalked is predicated on the offender being a stranger to her. This means that despite both she and the applicant being members and regular patrons of Mordy HQ for a number of years, ES was not so familiar with the applicant as to be able to recognise him as the offender or when he came to her flat on successive occasions after the assaults.
In support of the proposition that ES was not truthful in her account of the assaults, the applicant refers to CCTV footage showing the applicant and ES briefly encountering each other at the Mordy HQ after midnight on 7 December 2018. The footage shows the applicant and ES briefly crossing paths as they walk in opposite directions. ES then looks over her shoulder twice at the applicant, continuing to walk away until she leaves the camera’s field of vision. Both the applicant and the respondent agreed in their written cases that ES and the applicant were in close proximity and had the opportunity (at least) to see each other, however briefly.
At about 12.45 am, not long after this interaction, ES left to walk home by herself.
Counsel for the applicant submitted that the CCTV footage is ‘a devastating piece of evidence’. He submitted that it was extraordinary, given the nature of the allegations made by ES against the applicant and her stated fear of him, that she failed to show concern about his presence, and that she was comfortable walking home by herself later that night, as she acknowledged she had done, having just seen the man that she said had violently raped her.
The applicant refers to evidence given by Mr Allamby and Senior Constable Ferguson that ES became distressed after the applicant attended her unit on 5 November and 7 December. In the light of this evidence, the applicant submits, there is no explanation for ES’s apparent lack of concern upon seeing the applicant at the Mordy HQ on 7 December.
The respondent interprets the CCTV footage differently, arguing that ES appeared not to recognise the applicant, which is said to be unsurprising given the context of the interaction. ES and the applicant encountered each other in a different environment to where the alleged offending took place. On ES’s evidence, she did not know the applicant prior to the offending, so theirs was not a longstanding and familiar association. Further, ES had no reason to consider that the offender was a member of her local club, and probably felt safe there. For these reasons, the respondent submits that it was open to the jury to conclude that ES simply failed to recognise the applicant.
The respondent also notes that ES was not shown the footage and given an opportunity to comment on it.
We have carefully watched the CCTV footage many times. The encounter between ES and the applicant, if it can be called that, was a fleeting one. They were in close proximity for only a brief moment, when the applicant was walking down the two steps into the sports bar area as ES was walking up the steps to leave the bar (and adjacent gaming room) and enter the reception area. However, ES looks over her shoulder at the applicant twice as he walks away from her.
It not possible to say with any certainty whether ES and the applicant recognised each other. They are not seen to look at each other directly. The only other person shown in that part of the footage is between them as they pass and may have obscured their view at that moment. The applicant may not even have noticed ES. Nor does it seem that ES got a good look at the applicant. As she leaves the bar area, however, she seems to quite deliberately look back over her shoulder at the applicant, as if to see what he is doing. She takes a second look when she is in the reception area. He has his back to her on both occasions.
In our view, while this evidence is ambiguous, it nonetheless raises the distinct possibility that, when ES encountered the applicant in the Mordy HQ on 7 December 2018, she recognised him as someone she knew. We deal with the implications of this possibility in our consideration of whether the jury was bound to have a doubt about the applicant’s guilt.

ES’s description of the offender’s hair, height and ‘hi viz’ jacket

ES described the offender’s hair at the time of the initial offending as ‘very short’, black and curly. The applicant says this description was inconsistent with the evidence of other prosecution witnesses, namely:
(a)Ms Gocky, who said the applicant had shaved hair;
(b)Mr Gakovic, who said, ‘I don’t think [the applicant] had any hair. I think it was shaved or it was really short’;
(c)Ms Johnstone, who said the applicant was ‘tall and lanky with a bald head’; and
(d)Ms McLure, who said the applicant was bald.
The respondent submits that these descriptions are ‘not significantly inconsistent’ with ES’s evidence, in particular, her characterisation of the applicant’s hair as being ‘very short’.
We agree. The disparity, if any, is between a description of a person with extremely short or shaved hair and one with merely very short hair (albeit curly). The thrust of the evidence of all witnesses is that the person had very little hair.
ES also gave evidence that she was five feet and one inch tall and that the offender was ‘maybe’ four or five inches taller than her, which would make him no more than five foot six. The applicant submits that this description is ‘markedly different’ from the descriptions given by Ms Gocky, who said the applicant was six feet tall, and Ms McLure, who said the applicant was ‘quite tall, I would guess about 6 foot’.
The respondent submits that it is unremarkable that ES’s estimate as to the applicant’s height is ‘somewhat less’ than the estimates made by others, and notes that the applicant’s actual height was not in evidence at trial.
Again, we agree with the respondent that this apparent discrepancy is not significant. ES did not say in evidence how tall she thought the offender was, only how much taller than her he was. That evidence was necessarily a rough estimate. We note also that ES told LSC Duggan that the offender was about six feet tall.
ES further said that the offender was wearing a high-visibility jacket when he confronted her with the knife on 2 November 2018. She said the jacket was ‘like a yellow, greenish workman’s cover’, correcting herself to say ‘Coat, jacket’. A high visibility jacket was seized from the applicant’s property on 7 December 2018 and a photograph of that jacket was in evidence.
The applicant notes ES was not shown the photograph of the jacket during the trial, and that the prosecutor relied on the photograph as corroboration in her final address to the jury.
The applicant refers to evidence of Sergeant Stevens, who said the dark patches on the jacket were blue, and the evidence of Mr Kalogiros, who said ES told him the jacket was ‘fluorescent yellow’.
The applicant submits that ES’s description of the jacket (‘yellow, greenish’) does not match the description of the item seized by police. He says it is problematic that ES was never taken to the photograph of the seized jacket. Further, he submits that ES’s allegation that the offender was wearing the jacket is highly improbable. It would mean that the applicant, who was captured on CCTV earlier in the night not wearing the jacket, would have decided to put on an item of clothing that attracted attention to himself before committing the offences.
The respondent submits that there is nothing problematic about ES’s evidence that the offender wore a high-visibility jacket. The respondent says that, on one view, this evidence may be seen to enhance ES’s credibility and reliability, because it would be an unusual detail to fabricate in the circumstances of the alleged offending.
Again, we agree with the respondent. The photograph in evidence depicts a coat or jacket which is a fluorescent greenish-yellow in colour except for a dark lower section. We see no discrepancy between this photograph and ES’s description. If anything, the evidence of such a jacket in the applicant’s possession tends to corroborate ES’s evidence.

Inherent deficiencies in ES’s evidence

ES’s evidence about her bedsheets

The applicant submits that ES’s evidence about what she did with her bedsheets after the offending on 2 November 2018 is ‘very troubling’.
The applicant refers to the following exchange that occurred during cross examination of ES:
Just on that, did you tell — you say that you threw the sheets out. Did you tell the police that on the Sunday night?---The Sunday night? I can’t recall if I did.
Once you said you collected yourself, you stripped the bed and you put them in the bin?---Yes.
And I take it from that, you didn’t wash them first before you threw them out anything. You threw them straightaway?---Threw them straight out.
Then if that occurred, you wouldn’t have told the police that you had washed them. Is that right?---I don’t think the police asked me.
Had they, you would have told them that you threw the sheets out?---Yes, if they had asked me.
And you would have told them had they asked whereabouts you threw them?
---In the rubbish.
You would have told them, would you, that they were still in the rubbish bin?
---Yeah, probably would have, yeah. Yes.
The applicant observes that, despite the evidence just set out, in her report to LSC Duggan on 4 November 2018, ES did provide information about her bedsheets. She said that she had washed them after the offending. As the applicant emphasises, that evidence is in conflict with her evidence at trial, which was that she threw out the bedsheets without washing them. When defence counsel asked ES whether it was possible that she told LSC Duggan that she had washed the sheets, she said no, and firmly maintained that she threw the sheets out without washing them. She had not, however, told LSC Duggan that the sheets were in the rubbish.
ES’s evidence was that she threw the sheets out because she did not want to be reminded of what had happened. The applicant submits that if ES was so upset by reminders of the offending, it was anomalous that she did not throw out the tube of hand cream. Defence counsel confronted ES with this proposition. She said she only wanted to get rid of the sheets, and that she must have overlooked the hand cream.
Addressing the question whether ES washed her sheets, the respondent suggests that ES may have been using ‘sheets’ and ‘bedclothes’ interchangeably. The report of LSC Duggan said ‘[t]he victim stated she showered the following morning after the assault and that she had since washed her clothes — washed the clothes she had been wearing after the assault and also her bedsheets’. The respondent submits that the note of LSC Duggan might indicate that he interpreted ‘clothes’ as including ‘bedclothes’ and therefore wrote ‘bedsheets’.
The respondent also submits that the applicant’s evidence needs to be considered having regard to the fact that it was given three and a half years after the offending. Further, the respondent says it is notable that LSC Duggan’s statement was produced almost two months after ES’s report was made (albeit from notes he took about her complaint made on 4 November 2018).
As for the fact that ES did not throw away the hand cream, the respondent says that ES’s explanation for retaining it is sufficient to conclude that there is ‘no significant conflict’ between her decision to retain the hand cream and her decision to throw the sheets away because she did not want to be reminded of the alleged offending.
The parties did not refer to the evidence of Detective Leading Senior Constable Alice Koestler. She was briefed by LSC Duggan on the evening of Sunday 4 November 2018, after he had interviewed ES. In her notes of that conversation, DLSC Koestler recorded that ES had told LSC Duggan that she ‘showered next morning, washed clothes and bedding’. Moreover, she said that when she interviewed ES herself later that evening, ES told her that she had washed her bedclothes (although this appears not to have featured in her notes).
The evidence of LSC Duggan and DLSC Koestler contradicts ES’s evidence that she did not wash the sheets but threw them out instead. The respondent’s explanation of LSC Duggan’s note on the subject cannot stand in the light of DLSC Koestler’s evidence.
The evidence shows that ES had an inaccurate recollection of what she did with the sheets. This calls into question the reliability of her evidence.
However, it does not necessarily reflect poorly on her credibility. If ES in fact threw out the sheets, there was nothing to be gained by asserting that she had washed them: either way, it could be suggested that she did not want the sheets to be forensically examined. If, as seems more likely given her contemporaneous account, she washed the sheets, there was nothing to be gained by retracting that claim when she gave evidence at trial.
It is of no significance, in the circumstances, that ES might have wanted to dispose of the sheets, but not the hand cream used in the offending. Arguably, however, to lie overnight on the sheets on which the offender had lain, and on which she had been raped, would have been a much more intimate and confronting experience than retaining the remainder of the hand cream which the offender had used as a lubricant in the offending.
Again, we do not consider the obvious frailty in ES’s evidence concerning the bedsheets is particularly significant having regard to the evidence as a whole.

ES’s evidence about the duration and timing of events on 2 November 2018

During cross-examination, ES agreed that the alleged offending during the early hours of 2 November 2018 took place across a timeframe lasting up to two to three hours, and that the offending had concluded by about 3:20 or 3:30 am. She also gave evidence that, on that night, she had left the Mordy HQ at around 12:50 am. The applicant refers to evidence that ES in fact left the venue at 2:39 am, which meant the offending must have occurred within a 25–35 minute window. The applicant points to what is alleged to have transpired during that window — three instances of attempted or successful penetration, two trips to the bathroom, a period of 15–20 minutes where ES and the applicant lay on the bed, the applicant smoking a cigarette — and suggests it is improbable at best for all this to have taken place within 25–35 minutes.
The respondent refers to ES’s evidence that she did not look at her watch when she was leaving the Mordy HQ, and notes that she was providing an estimated duration for a traumatic experience.
ES’s incorrect estimate of her departure time from the Mordy HQ is of limited significance. If she did not look at her watch it is no surprise that she was wrong on that score, even by an hour and a half. The greater difficulty in her account in this respect is that, based on the offender departing her unit at 3:20 or 3:30 am, there was only about 35–45 minutes for the offending to take place, because ES could not have reached her home until about 2:45 am. That falsifies her estimate of up to 2 to 3 hours for the duration of the offending. It also suggests that ES and the offender could not have been lying on the bed for 15–20 minutes out of the 35–45 minute total.
The evidence shows at least that ES’s estimates of time were very inexact. Even making allowances for that factor, the evidence also shows that the window for the offending was comparatively narrow. It is not surprising that a victim of the offending ES described, in the middle of the night, should lose track of time in this way. Nor, in our view, is the 35–45 minute window so short as to make the offending impossible or even improbable. Even if part of that time was spent in a surreally leisurely manner, lying on the bed and the offender smoking a cigarette partly outside as requested by ES, the offending itself, on ES’s account, need not have occupied a lengthy period.

ES’s movements between the initial offending on 2 November 2018 and her complaint to police on 4 November 2018

ES gave evidence that, after the offending during the early hours of 2 November 2018, she did not leave her unit, except to put her sheets in the outdoor bin, until she went to the police on 4 November 2018. The applicant says this was false, referring to evidence of Mr Kalogiros and Ms Gocky. Mr Kalogiros said that he went for a walk with ES on 2 November, and that she told him she had met a friend for pizza on 3 November. Ms Gocky said that she had seen ES arrive home in her car, alone, sometime on the morning of 2 November.
The respondent refers to an answer given by Mr Kalogiros during cross examination. Defence counsel asked, ‘when [ES] told us she was too scared to leave the house, you say actually she did leave the house?’. Mr Kalogiros answered, ‘by herself, she wouldn’t leave the house’. The respondent says that this response reveals that ES’s real concern was leaving the house alone. Further, the respondent submits that ES did not have an opportunity to respond to the evidence of Mr Kalogiros.
It was not put to ES that her evidence that she had not left the house after the offending until 4 November 2018 was false. In any event, even accepting that she did leave her unit on the Friday and the Saturday after the offending as Mr Kalogiros said, we do not attach significance to the fact that she gave evidence that she had not left the house on those days. Mr Kalogiros took ES to be concerned not to leave the house alone.
We consider this to be a reasonable way of reconciling the apparently inconsistent evidence on this aspect of the case. It is not a discrepancy that alone should have made the jury doubt ES’s credibility or reliability, but it is a matter that is relevant to that issue in the context of the evidence as a whole.

ES movements between 2 November 2018 and the time she was told the offender had been arrested

ES gave evidence that she continued to be too frightened to leave her house on her own until she learned that someone had been arrested in connection with the offending. The applicant submits that this evidence is inconsistent with CCTV footage showing ES at the Mordy HQ on 7 December 2018 between 12:11 am and 12:46 am, before the applicant was arrested later that day.
At trial, facing questions from defence counsel about her willingness to go out on 7 December despite her professed fear of leaving home by herself, ES said she understood that the applicant had been arrested about a fortnight after the initial offending, placing the arrest sometime around 16 November 2018. After she was reminded that the applicant was not arrested until 7 December 2018, she said she had begun to regain her nerve over time, and also said that she thought she could use herself as ‘bait’ to lure the offender back to her unit, from where she could attempt to contact the police.
The applicant characterises this as a remarkable shift in ES’s evidence. The applicant also says ES’s evidence that she had been told the applicant was arrested around 16 November 2018 was false, and suggests her credibility and reliability were adversely affected as a result.

ES’s evidence that she went out on 7 December 2018 as ‘bait’ also sits uncomfortably with the evidence, referred to above, to the effect that she thought by this time that the offender had been arrested.
The respondent submits that ES’s evidence has to be understood alongside her statements that she sought an opportunity to contact the police, and sought to ‘start [her] life again’ and that she was ‘not going to be locked up forever’. The respondent says ES’s ‘bait’ statement can be understood as an effort to understand her own behaviour. The respondent says that this is a type of ‘reconstruction’ that does not necessarily amount to a knowingly false representation.
In our view, this material reveals again that ES was prone to giving inaccurate evidence as to time and dates. Given that tendency, we do not accept that she was deliberately untruthful when she said that she thought that she learned that the applicant had been arrested some three weeks before she went to the Mordy HQ on 7 December 2018.
On the other hand, her evidence that she went out, whether believing that the offender had been arrested or knowing that he was at large, so as to act as ‘bait’ to lure him back to her unit while she called police, strikes us as preposterous and false, invented to try to explain the apparent incongruity in ES leaving home, alone and at night, despite the dreadful things that she said had happened to her and having said that she remained too frightened to go out. To some extent, the ‘lure’ scenario ES proffered might be explicable as an attempt on her part to reconstruct her mental state at the time, but when this was, in effect, put to her, she denied it:
[DEFENCE COUNSEL]: So what you’re saying now is on that night, you went out as bait?---I would — yes, I might have. Yes.
You might have or you did?---I did.
In our view, this unsatisfactory evidence indicates that ES’s evidence is not to be uncritically accepted. It does not mean, however, without more, that it was not reasonably open to the jury to convict the applicant in reliance on her evidence. Pell does not require the Court to assume that the jury accepted this aspect of ES’s evidence. The approach in Pell that requires acceptance that the jury found a complainant credible ‘can easily accommodate the circumstance’ in which the witness has told a lie.[18] We will return to this matter later in these reasons.

ES’s description of the knife

[18]Parker [2024] VSCA 209 [83] (Niall, Taylor and Boyce JJA).

The applicant says that, at trial, ES provided certain details about the knife used in the alleged offending ‘for the first time ever’. In her statement to police, ES described the knife as black-handled with a silver blade. At trial, she described the knife used by the offender as being black-handled, about 5–6 inches long,[19] very narrow and ‘worn in the centre’. The applicant points out that there had previously been no reference to the knife being worn in the centre and submits that ES’s description was remarkably similar to a knife she herself owned.[20]
[19]During cross-examination, ES accepted a proposition that the knife was 10 inches long. In her statement to the police, it seemed that ES described the knife as being 120cm long.
[20]A photograph of that knife, which ES says she began to keep under her pillow after the alleged offending, was in evidence at trial.
Two knives were photographed by police at the applicant’s premises. The applicant says it was not argued that these could be the knives used in the offending, and, for that reason, queries why the photographs were tendered at all.
The respondent submits that the additional detail provided by ES at trial was essentially that the knife was worn in the middle, and that this was unremarkable new information that was not inconsistent with her previous description of the knife.
We agree. The additional detail given by ES at trial is not of sufficient importance to cast doubt on her credibility.

The applicant’s birthmark

At trial, the applicant gave evidence that he had a birthmark on his chest, and he offered to show it to the Court during cross-examination. That invitation was not accepted. The applicant says it is anomalous that the birthmark did not feature in ES’s evidence, given that, on her account, the two of them were naked together for a substantial period.
The respondent notes that the only evidence of the birthmark came from the applicant, and says that his evidence about it was clearly rejected by the jury. But even if the jury did accept that the applicant had a birthmark, the respondent says that fact would not necessarily compel the jury to conclude that ES had seen it. Further, a failure by ES to give evidence about it would not have been fatal to the prosecution case.
It was, in our view, well open to the jury to put aside this evidence. The only evidence of the existence of the birthmark came from the applicant. He said it was on the right side of his chest, and also said it was on the right side of his shoulder. The jury was free to reject his evidence. Defence counsel in closing said only ‘I don’t know what we’re really going to make of that, but she doesn’t say it’.
Even if they accepted that the applicant had a birthmark of some kind, without seeing it or even having it described, the jury was in no position to decide whether ES would have noticed it, or what to make of the fact that she did not mention it. ES was not asked whether she observed a birthmark on the offender.

Differences in ES’s accounts of the offending

ES’s evidence about penetration

The applicant points to inconsistencies in ES’s evidence about the extent of penetration during the alleged offending. In her initial contacts with the police, ES said that the offender did not and could not penetrate her vagina on his first attempt. In contrast, at trial, her evidence of the ‘first occasion’ was that the offender was ‘fully inside [her]’, that ‘if he had pushed anymore, he would have ripped [her] inside’, that he penetrated her to the extent ‘he was hurting [her] quite a lot’, that he ‘was in as far as he could go’ and that he was ‘ripping [her] apart’. The applicant notes that defence counsel asked ES whether she agreed that ‘didn’t penetrate’ and ‘fully penetrated’ are ‘very different concepts’. ES agreed, and the applicant submits that ES therefore understood the distinction between what she said to the police and what she ultimately said at trial.
The respondent submits that ES’s understanding of ‘penetration’ was not aligned to the legal definition of the term, which encompasses penetration ‘to any extent’.[21] The respondent says this was identified by the prosecutor,[22] and by the trial judge who at one point said:
I’m a little confused by the questioning and the puttage … I may be wrong — that when she spoke of being fully penetrated, she said ‘half inside of me at that time’ … in some senses, being half inside of her is – or may mean that he was fully inside of her, in the sense that he had achieved penetration.
[21]Crimes Act 1958, s 35A(1)(a).
[22]The prosecutor said that ‘[ES] seemed to be, depending on how the question was phrased to her, saying a different thing, and it wasn’t that what she was saying … was necessarily inconsistent, it was just depending on how the question was phrased, she gave a different answer, and I think … she’s confused over penetration … what is meant by penetration and full penetration’.
The respondent refers to the fairly detailed account ES gave at trial of the subsequent penetrations, involving application of the hand cream, the size of the applicant’s penis and the pain she experienced during the alleged offending. The respondent submits that ES’s account needs to be considered in light of the matters set out in s 54D(2) of the Jury Directions Act 2015 (‘JDA’), which provides:
Directions on difference in complainant’s account
(1)If … the trial judge considers that there is evidence in the trial that suggests a difference in the complainant’s account of the offence charged that is relevant to the complainant’s credibility or reliability, the trial judge must direct the jury in accordance with subsection (2).
(2)In giving a direction referred to in subsection (1), the trial judge must inform the jury that—
…
(b)differences in a complainant’s account may be relevant to the jury’s assessment of the complainant’s credibility and reliability; and
(c)experience shows that—
(i)people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and
(ii)trauma may affect different people differently, including by affecting how they recall events; and
(iii)it is common for there to be differences in accounts of a sexual offence; and
…
(iv)both truthful and untruthful accounts of a sexual offence may contain differences; and
(d)it is up to the jury to decide—
(i)whether or not any differences in the complainant’s account are important in assessing the complainant’s credibility and reliability; and
(ii)whether the jury believes all, some or none of the complainant’s evidence.
The respondent says that, to the extent that any differences are apprehended in ES’s accounts of the offending, the s 54D(2) directions (which were part of the judge’s charge) provide a clear basis upon which the jury could rationally have reconciled and accounted for those differences and still been satisfied of the applicant’s guilt beyond reasonable doubt.
ES was cross-examined at great length on the subject of penetration. In our view, and taking account of the direction in s 54D of the JDA, it is evident that she did not apply a consistent meaning to the term. When she said that the offender had not penetrated her ‘fully’, she seems to have meant that his penis did not wholly enter her vagina. Elsewhere, she described the penetration as ‘full’ in circumstances where it caused her great pain and she feared injury if the offender penetrated her any further — in other words, her vagina was fully penetrated even though the offender’s penis was not wholly inside it. She said that the offender ‘didn’t get [his penis] in fully, he was quite a large man’; ‘he couldn’t fully enter me because her was quite a large man’; and that ‘he only went half way … because the gentleman was quite big and I am quite small’. She said ‘he couldn’t get fully inside because … he was ripping me apart’.
ES explained that, when she had earlier said that there was no penetration, she meant that there was some penetration but he could not fully penetrate her because she was hurting. She freely admitted that she had not described events this way previously, but said that defence counsel had phrased the question differently.
We understand ES’s statements to police, that the offender was unable to penetrate her, as meaning that he was only able to insert his penis part way into her vagina. That is apparent from the following passage in the cross-examination:
[DEFENCE COUNSEL] All right. When you returned — I’ll just go back to the statement now. When you went back to sign your statement, I’m going to read you what you said. ... ‘He then told me to remove my underwear. I do not remember if he said panties or underwear, but he told me to take it all off and get on the bed. I lay on my bed, he got undressed. The next thing he was lying on top of me. He tried to enter me. He couldn’t get his penis inside me. He tried to force himself inside me. He had an erection. He did not penetrate me as he was unable to. He then grabbed the hand cream that was beside my bedside table. This hand cream was in a container with purple and white colours. He put the hand cream on his penis and also on my — and put it on my vagina. He then tried to push his penis inside me but was unable to. After a bit of pushing and shoving, I was in agony. He said, “I’m nearly there, I’m nearly there”’. I’ll just pause there. So the way you’ve described it to Detective Long is that there was an occasion where you said ‘He did not penetrate me, and then he grabbed the hand cream and then there was another occasion where he tried to push his penis inside me but was unable to do so’. You agree that’s the order that you’ve described it to Detective Long?---Ah, it — he penetrated me as much as he could.
I’m just going to ask you about the statement. Do you agree that that’s what you told her?---Yeah.
And is that correct?---Well, that except that penetrated me as much as he could. He didn’t fully penetrate me.
So except for that part, where you’ve said ‘He did not penetrate me’, what you meant to say then was ‘He penetrated me’ - - -?---I — yes.
So you should’ve said that then, is that what you’re saying?---Yes.
All right. So aside from that issue — well, I’ll ask you this. So that means in the statement there, where it says ‘He did not penetrate me’, that’s wrong?---That’s wrong.
It seems to us that ES was saying that because she was ‘small’ and the offender was ‘quite big’, the offender’s penis was not fully ‘in’ even when it had gone in as far as her body would allow. That is what she meant when she said he did not, or did not fully, penetrate her.
In the end, the matters relied on by the applicant in this regard reveal that ES had no fixed understanding of what constituted penetration. This is hardly surprising. Bearing in mind the direction in s 54D(2)(c)(i) that experience shows that people may not describe a sexual offence in the same way each time, we do not regard the differences in ES’s evidence in this regard as important to assessing her credibility and reliability.

ES’s evidence about the offender’s statements about ejaculation

In her report to LSC Duggan, ES said that, during the alleged offending, the offender said ‘I’m coming, I’m coming’, but that he did not ejaculate. At trial, ES said the words used by the offender were ‘I’m nearly ready to come’.
There is no real difference in these accounts. ES consistently said that the offender did not ejaculate, despite announcing that he was about to do so. There is no reason why ES should be expected to recall the precise words used by the offender, unwelcome as they would have been. There is nothing in this point.

The order of events during the initial offending

The applicant submits that there is no consistency to the order of events outlined in ES’s accounts of the initial offending. He refers to the following accounts:
(a)ES told LSC Duggan that the offender attempted to penetrate her, applied the hand cream but was still unable to penetrate her, allowed her to go the bathroom and did not attempt any further penetration afterward.
(b)During cross-examination ES said that the offender penetrated her, allowed her to go to the bathroom, applied the hand cream and then penetrated her ‘as much as he could’.
(c)ES’s evidence at trial was that she went to the bathroom twice during the alleged offending (in contrast to once, as stated in the report to LSC Duggan).
The respondent submits that some of the issues in ES’s account seemed to arise because ES was not sure whether she was being asked about the sequence of events as opposed to whether penetration had occurred. By way of example, the respondent refers to the following exchange:
[DEFENCE COUNSEL]: So the second incident you described, you say, ‘he then tried to push his penis inside me but was unable to’?---Well, he pushed it as far as he could.
I’m just trying to get the order of events, not the detail of what happened at this point.
The respondent submits that ES was ultimately clear that there had been two separate penetrations of her vagina by the offender’s penis after his application of the hand cream.
Much of the apparent confusion in the evidence is explained by the inconsistent understandings of ES at various points as to what was meant by ‘penetration’, as discussed above. This in turn led to confusion about which events constituted an ‘incident’ or an ‘attempt’, or indeed a charged act. It was only on the third day of the trial, by which time the recorded evidence of ES had been played to the jury, that the trial judge resolved, after extensive submissions from counsel, which acts constituted the alleged rapes, and the indictment was amended accordingly to make it clear that they occurred after the application of the hand cream.
In our view, this accounts for the main differences in ES’s account over time. The fundamentals of her narrative were consistent. The offender had attempted to penetrate her and been unable to do so (whether or not that involved any actual penetration), he had then applied hand cream and penetrated her more completely on two occasions, stopping without ejaculating, before ES went to the bathroom and they then lay on the bed for a time.
When s 54D of the JDA is borne in mind, in particular, we again do not think that the discrepancies to which the applicant draws attention were critical in the assessment of ES’s credibility or reliability. But care is needed to ensure that her evidence is properly understood.

ES’s evidence about the offender’s first threat

As mentioned earlier, ES gave evidence that when the offender initially confronted her, he said ‘don’t scream or I’ll stab you’. The applicant notes that ES’s report to LSC Duggan did not mention this. The applicant also points to a similar alleged inconsistency said to emerge from the following exchange between ES and defence counsel:
[DEFENCE COUNSEL]: You said originally in your evidence today that when the man approached you at the door, he said ‘get in’. Is that right?---Correct, yes.
And it was at that stage, did you [sic], that you went in?---Yes.
All right. Are you sure that that’s what was said to you … that he said ‘get in’?
---’Get in and get undressed’.
All right. And then it was then that you got undressed?---Yes.
Now, can you be certain of whether he said anything else to you before you say you got on the bed?---So he told me to … get on the bed, when I was undressed.
All right. Now, I think you told the prosecutor that he said something else to you in between. Do you remember what that was?---No, I can’t remember.
You can’t remember him saying anything else to you?---M’mm … no, I’m sorry, no.
All right. So you told the prosecutor that he said at some stage, ‘don’t scream or I’ll stab you’?---Oh, that’s what he said at the door.
The respondent submits that the matters described in s 54D of the JDA are relevant to the appraisal of this evidence.
It is surprising that ES did not remember the threat to stab her when she recounted events to LSC Duggan. Such a frightening experience might be thought unlikely to be forgotten. On the other hand, the threat paled into insignificance compared with the events that followed in her account and it is understandable that ES would focus on them.
We do not think that this matter of itself was significant to the assessment of ES as a witness. Again, the direction in s 54D(2)(c)(ii), in particular, is relevant. Again, however, it will need to be considered in the context of her evidence overall.

The offender smoking

As mentioned earlier, ES’s evidence at trial was that the offender smoked in ES’s unit shortly before he left at around 3:20 or 3:30 am. However, ES’s report to LSC Duggan did not mention this.
The smoking is much less significant than other aspects of the narrative. The discrepancy in ES’s accounts, if it is that, is of marginal importance.

The offender’s name

The applicant refers to ES’s evidence about the name of the alleged offender, which he says was given at trial ‘for the first time ever’. During her examination in chief, ES gave evidence that the offender told her his name was Michael. During cross-examination, she initially said she had told that to the police. But she eventually appeared to acknowledge that she might not have told them that the offender gave his name, saying she ‘probably forgot about it, like I want to forget about the whole incident’.

Being careful not to approach the evidence in a piecemeal fashion, I regard ES’s evidence with respect to penetration — viewed cumulatively with the manifold other factors negatively affecting the assessment of her credibility and reliability of her evidence — to be important to an overarching assessment of her evidence.

The bedsheets

When he took ES’s complaint from her, one of the contemporaneous notes that LSC Duggan made was: ‘The victim stated she showered the following morning after the assault and that she had since washed the clothes she had been wearing after the assault and also her bedsheets’.[51]
[51]See [106] above.
In her evidence at trial, however, ES testified that, shortly after she had gathered her thoughts on the morning of her attack, she stripped the bedsheets from her bed and threw them in the rubbish bin without washing them, because she did not want to be reminded of the attack. When challenged, ES said that, had LSC Duggan asked her, she would have told him that she had thrown the bedsheets out and that they were still in the rubbish bin. She pointedly denied that it was possible that she had told police that she had washed the bedsheets, and maintained that she had thrown them out.
I regard ES’s evidence as to what she did with the bedsheets to be extremely unsatisfactory. There is no reason to think that LSC Duggan misunderstood what he was told, or that he failed to record it accurately. Indeed, LSC Duggan gave evidence that he specifically asked about the bedsheets so that they could be preserved for forensic examination, but ES told him — her answer being recorded in notes that he read back to her — that she had washed them, rendering them forensically unhelpful. LSC Duggan also gave evidence that, had he been told that the bedsheets were in a rubbish bin outside ES’s door, he would have ensured that they were seized for forensic examination. His evidence was that, had ES told him the bedsheets were in the bin, he would have made a note to that effect. At no stage did ES tell him that the sheets were in the bin.
In my view, the overwhelming likelihood is that LSC Duggan’s evidence reflects the true picture. It is very likely that, being aware of their possible forensic significance, LSC Duggan did ask ES about the bedsheets, but was told that they had been washed. In those circumstances, LSC Duggan would have seen that the forensic significance of the bedsheets had been reduced or eliminated. Moreover, it is almost unthinkable that, had he been told that unwashed bedsheets, stripped from a bed upon which a recent attack had taken place, were still in the rubbish bin, LSC Duggan would have failed to have the bedsheets retrieved for forensic testing.
I do not consider that ES’s evidence of what she did with the bedsheets to be capable of acceptance.
In oral argument in this Court, counsel for the respondent advanced the submission — one which, with respect, I regard as bordering on the absurd — that LSC Duggan’s notes might indicate that he interpreted ‘clothes’ as including ‘bedclothes’ and therefore had written ‘bedsheets’.
That submission ignores the reality of what occurred. LSC Duggan noted specifically that ES told him that ‘she had since washed the clothes she had been wearing … and also her bedsheets’; that is, a distinction was drawn between the clothes ES had been wearing and the bedclothes. Realising the potential forensic significance of the bedsheets, it is unlikely in the extreme that LSC Duggan might have made the mistake of interpretation attributed to him. Moreover, I note that the argument as to the possibility of misattribution floated by the respondent’s counsel in this Court was not one that was advanced in the trial.
ES’s evidence about the bedsheets is another factor reflecting poorly on her overall credibility and reliability.[52]
[52]Cf [116].
I would add that, ES’s assertion that she discarded the bedsheets because she did not want to be reminded of anything to do with the attack, is difficult to reconcile with her admitted failure to throw away the container of hand cream that the applicant had applied as lubricant to his penis and to ES’s genitals. When confronted with this apparent contradiction, ES proffered the unlikely explanation that she must have overlooked the tube of hand cream sitting on her bedside table.

Birthmark

Another matter that diminishes confidence in ES’s evidence that the applicant was the offender relates to a birthmark that the applicant claimed in his evidence to have on his chest.
Under cross-examination by the prosecutor, the applicant swore that ES had never seen him topless or naked, since, if she had — especially if he had been naked in her company for one and a half or two hours — she could not have failed to notice that he had a birthmark on the right side of his chest and shoulder. Several times the applicant offered to lift up his shirt and show it. Eventually, however, the prosecutor said: ‘I’m not interested in your birthmark’.
In circumstances where the applicant gave sworn evidence that he had a birthmark on his chest and shoulder — offering to show it in open court — yet the prosecutor mounted no challenge to that evidence, it would have been capricious for any trier of fact to reject that evidence.[53] And the sting in the evidence is obvious. Had the applicant been naked in ES’s company for an extended period as alleged, she could not have failed to observe the birthmark, yet none of the descriptions she gave of the alleged offender included any suggestion that he had a birthmark extending over his chest and shoulder.
[53]Cf [139].
Counsel for the respondent submitted in writing that the only evidence of the birthmark came from the applicant, and that his evidence about it was ‘clearly rejected’ by the jury. The respondent’s counsel also submitted that even if the jury accepted that the applicant had a birthmark, that fact would not necessarily have compelled the jury to conclude that ES had seen it. Counsel also submitted that a failure by ES to give evidence about it would not have been ‘fatal’ to the prosecution case.
These submissions must be rejected. In circumstances where the prosecution did not seek to challenge the applicant’s sworn evidence that he had a birthmark occupying an area of his chest and shoulder, it would have been unreasonable for a trier of fact not to have accepted that evidence. Indeed, there was no basis upon which the jury properly could have rejected it. If it were the prosecution’s stance that the applicant was not being truthful about the existence of the birthmark, the simple expedient of having him lift or take off his shirt would have revealed the deception. Bearing in mind the onus of proof, it may readily be inferred from the prosecution’s failure to challenge the evidence that it was realised that to do so would not have assisted the prosecution case.
On ES’s version of events, it is obvious that she could not have failed to notice that the naked male whose company she was in for an extended period had a substantial birthmark on his upper body. Her failure to say anything about a birthmark is another matter that casts doubt on the credibility and reliability of her evidence that the applicant was the offender.[54]
[54]Cf [140].

Attacker took off his disguise, gave his name, smoked a cigarette and came back

Further, acknowledging the caprices of human nature, various reported aspects of how the attacker allegedly behaved during and after the attack are curious (if not bizarre).
Among those curious aspects is the fact that, according to ES, when he first accosted her at her front door, the man who attacked her had his face covered with mesh material. Notwithstanding this obvious attempt to disguise his identity, however, once in the bedroom — and so as to defeat his attempts at disguise — the man removed his face covering when he removed his clothes.
Next, according to ES, after the alleged rapes the man asked her for a cigarette, which she gave him. Remarkably, according to ES, when she told the man who had only moments before sexually penetrated her without her consent that he would have to smoke outside, the man did just that, with one foot outside and one foot in the lounge. Moreover, according to ES’s evidence, the man — in another move calculated to frustrate his attempt to disguise his identity — gave his name as ‘Michael’ when she asked him.
I regard this evidence as highly unlikely to be true. Self-evidently, for an anonymous and otherwise disguised rapist to tell a victim his name would be a matter of signal importance. It appears, however, that ES had previously failed to relate this significant fact to anyone until she gave evidence at trial. Thus, during her evidence-in-chief, ES for the first time volunteered that the offender told her that his name was Michael. That was not something she had told LSC Duggan when she made her initial report, and it was not something that she told Detective Long when she took her statement. Indeed, not only was this important detail missing from her statement, but ES failed to give any evidence about it during the committal.
Having for the first time in her evidence at trial suggested that the offender gave his name as Michael, the first position she adopted when cross-examined was that she had passed on that information to the police. Eventually, however, ES appeared to accept that she might not have related that important feature to the police, asserting that she ‘probably forgot about it’, because she wanted ‘to forget about the whole incident’.
Even directing myself in accordance with s 54(2) of the JDA, I consider ES’s evidence that the man gave his name as Michael to be unworthy of belief.[55]
[55]Cf [166].
Once more acknowledging the vagaries of human nature — and putting to one side the great majority of rape cases, where offenders are acquainted with their victims — common experience is that it is uncommon for perpetrators of sexual offences to revisit the homes of their victims. Notwithstanding that this is so, there is no dispute that the applicant visited ES’s unit on 3 November, 5 November and 7 December 2018, and, having made no attempt to disguise himself (or prevent himself from being seen by potential witnesses), on each occasion rang the doorbell and waited patiently (but in vain) for her to answer. Such conduct generally is inconsistent with the behaviour of a person who has been guilty of serious sexual (and other) offending; and is inconsistent with a person harbouring a consciousness of guilt of having raped the occupant of the unit on 2 November 2018. (The evidence also revealed that the applicant returned to the Mordy HQ on 3 November 2018.)
Of course, the applicant’s conduct in visiting ES’s unit on several occasions after the alleged attack appears far less odd if, contrary to ES’s evidence that she had never previously seen her attacker, the applicant and ES did — as the applicant claimed in his evidence — know each other from the Mordy HQ, and that he had, on occasion, loaned her money.

Length of time attack took

Initially, ES told the police that the offending on 2 November 2018 occurred ‘over two to three hours’. And in her evidence-in-chief, she said the events lasted ‘about two hours’; ‘maybe two hours’; and ‘an hour and a half to two hours’.
No matter the reason, these times are objectively untrue. If the offending occurred at all, it is tolerably clear that it could only have occurred in a much shorter window of 25 to 35 minutes or thereabouts.
Thus, whereas ES had said that she left the Mordy HQ at 12:50 to 12:55 am, the objective evidence from the CCTV footage demonstrated that she left at 2:39 am. Given that her unit was about a four minute walk away, ES would have arrived home no later than approximately 2:45 am. According to ES, the offending was finished by 3:20 or 3:30 am. Making allowance for the period of 15 to 20 minutes that ES said she and the offender lay on the bed, that suggests that all of the alleged offending must have taken place in a period of about 25 to 35 minutes (even if no allowance is made for the further period when the two smoked a cigarette).
Whilst it might be acknowledged that ES’s evidence concerning times does not have the significance of several of the other ‘troubling aspects’ pressed by the applicant’s counsel, and that genuine victims of crime may well be inaccurate when estimating the time over which a traumatic event has taken place, ES’s evidence concerning times nonetheless demonstrates that caution must be exercised before accepting ES’s evidence at face value.[56]
[56]Cf [120].

Description of hair, height, knife, and high-visibility jacket

There are several aspects relied upon by the applicant’s counsel that I consider to be of little or no relevance to the determination of the first ground.
In my view, it is unnecessary to conduct an extensive analysis of the supposed differences disclosed by the evidence in the description of the applicant’s and the offender’s hair, since I consider them to be of no moment. Similarly, the evidence of ES’s estimate of the offender’s height compared to others’ estimates of the applicant’s height is of no consequence.[57] So, too, I regard the evidence describing the offender’s knife as being of little or no importance.[58]
[57]Cf [93]–[96].
[58]Cf [136].
As to the issue of the high-visibility jacket, images captured by CCTV at the Mordy HQ show that prior to and when leaving the venue at 2:01 am on 2 November 2018, the applicant was wearing a T-shirt without a jacket. Even assuming, for the sake of argument, that it is unlikely that, had he intended to attack ES, the applicant would have first dressed himself in a high-visibility jacket — calculated to attract attention to himself — before going to ES’s unit, the evidence that the offender was dressed in a high-visibility jacket, and that a similar item was found at the applicant’s residence during the police search, strikes me of being of very little importance either to the prosecution or the defence cases.[59]
[59]Cf [103].

DNA

A tube of hand cream, allegedly used by the offender on 2 November 2018 to provide lubrication, was tested for DNA. The tube was found to have DNA from two contributors. Using a Guinean database — it will be recalled that the applicant was born in Guinea in West Africa — the DNA evidence was 1,200 times more likely if the applicant is a contributor; and using the Caucasian database, was 8,300 times more likely if the applicant is a contributor; that is, one person out of 1,200, or one person out of 8,300, would have a DNA profile matching the DNA on the tube of hand cream. Significantly, the scientific evidence was that it was unable to be confirmed whether the DNA on the tube was male or female.
It is important to note that, in any event, ES could not be sure whether the tube of hand cream from which the DNA was sourced was the same tube that the offender had used.
Added to these infirmities was the real possibility of transference. Hence, there was no dispute that the applicant had touched the door of EA’s unit on occasions other than 2 November 2018, and that ES would have touched both the door and the tube of hand cream, thereby permitting transference of DNA from the door to the tube of cream. Both the possibility of secondary transfer of DNA from the door handle to the tube of hand cream, and the possibility that the tube that was tested for DNA was not the one handled by the offender, considerably weaken the force of the DNA as a piece of circumstantial evidence.[60]
[60]Cf [173].

Lies

In his evidence, the applicant admitted to lying in the record of interview with police. At the very least, these lies have a negative bearing on his credit.
As against those lies, it is plain that when he went to ES’s unit the applicant made no attempt to disguise himself or to avoid being seen by potential witnesses. I consider that conduct of that kind would be highly unusual if the applicant had committed such serious offences. The applicant’s continued attendance at the Mordy HQ, including within a day of the alleged offending, would also be highly unusual if he had committed the offences alleged.[61]
[61]Cf [182]–[183].

Consideration

In my opinion, there is a real risk in this case that an innocent man has been convicted.
Based on a review of all of the evidence, I have a reasonable doubt about the applicant’s guilt on all of the charges. It is one that the jury ought to have experienced, notwithstanding that the jury had the advantage of seeing and hearing the evidence. Indeed, in my view, that supposed advantage is not capable of resolving the doubt that I hold about the applicant’s guilt. As I have endeavoured to explain, ES’s evidence lacked credibility for reasons which are not explained by the manner in which it was given. It contains such discrepancies, displays inadequacies, is tainted and otherwise lacks probative force in such a way that I am led to conclude that — even making full allowance for the advantages enjoyed by the jury — there is a significant possibility that an innocent man has been convicted. The Court is therefore bound to set aside the verdicts.[62]
[62]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’).
Although, for the purposes of determining whether the verdicts are unreasonable or cannot be supported having regard to the evidence[63] the Court must proceed on the basis that the jury assessed ES’s evidence to be credible and reliable,[64] I am persuaded that the inconsistencies, discrepancies and other inadequacies in her evidence are such that the jury, acting rationally, ought to have had a reasonable doubt as to the applicant’s guilt.
[63]See Criminal Procedure Act 2009, s 276(1)(a).
[64]Pell, 145 [39].
I do not accept that, if ES’s evidence were true, she would have failed to recognise her alleged attacker at the Mordy HQ on 7 December 2018. After all, on her version she was able to recognise her assailant in profile through a peephole. It is almost unthinkable that she would not have sought some assistance to bring her assailant to the attention of security and police.
In my opinion, what is capable of being discerned from the CCTV footage is far more consistent with the applicant’s version of the relevant events, sworn to in his evidence: ES, who was wont to borrow money from him, owed the applicant money; he asked for repayment; she told him she would get it from a cash machine; she then furtively left the venue without obtaining any money from the machine or repaying the applicant, looking back at the applicant from the door of the venue as she slipped away.
Moreover, given that — unlike, perhaps, in television crime dramas and popular fiction — rapists generally do not return to the scene of the crime, ring the doorbell of their victims and wait politely for an answer. The applicant’s conduct in visiting ES’s unit on 3 November, 5 November and 7 December 2018 — without any attempt at disguise — strikes me as being far more consistent with the applicant’s version: ES owed him money, and he sought repayment.[65]
[65]Cf [194].
The lack of disguise ties in with another remarkable feature of the alleged attack. According to ES, not only did her assailant remove his facial disguise when becoming naked, but he gave her his name. It might be expected that an offender who had planned a premeditated attack involving contriving a disguise and using a knife would not then defeat the purpose of wearing the disguise by removing it, and, in additional measure calculated to defeat the purpose of the disguise, provide his name. ES’s evidence as to these matters is, at best, dubious (particularly given the circumstances in which ES first suggested that her assailant had divulged his name).
Another feature of the alleged offender’s appearance points strongly to the applicant not being the person responsible for the events in ES’s unit in the morning of 2 November 2018. Hence, despite the fact that the offender was naked, and that he and ES lay on the bed together for 15 or 20 minutes after the attempts at sexual penetration (before having a cigarette), ES did not notice any birthmark on the offender’s right chest and shoulder. Given that the applicant gave sworn evidence that he had such a birthmark — that evidence being left unchallenged by the prosecution — it would be wholly unreasonable to reject the notion that he had a birthmark. And in circumstances where ES could not have failed to see a conspicuous birthmark on her naked attacker, the absence of that identifying feature on her assailant strongly indicates that the applicant could not have been the offender (assuming that ES’s other evidence concerning the occurrence of the alleged attack was capable of acceptance).

Apart from the improbabilities connected with ES’s evidence, it is plain that, when she got caught out in an untruth, she lied on oath. Her preposterous claim that she was acting as bait to catch her attacker — fabricated in the witness box when confronted with objective evidence that put the lie to her claim that she did not go out at night until she heard that the offender had been caught — has a grave adverse impact on her credit. As I have said, even if one accepts that credit is divisible, ES’s willingness to tell lies on oath has an overarching negative effect on an assessment of her credibility and reliability.[66]
[66]Cf [196].
ES’s overall credibility is also diminished by the evidence concerning the bedsheets. At trial, ES testified that she stripped the bedsheets from her bed after the attack and threw them in the rubbish bin without washing them, because she did not want to be reminded of the attack. It is clear from the evidence of LSC Duggan, however, that she told him that she had washed the clothes that she had been wearing and the bedsheets — thereby robbing the bedsheets of forensic value — yet, when confronted with LSC Duggan’s account, ES stridently denied that it was possible that she had told police that she had washed the bedsheets, and instead maintained that she had thrown them out. As I have said, I do not consider that ES’s evidence of what she did with the bedsheets to be capable of acceptance. Her evidence concerning the bedsheets is another matter that reflects poorly on ES’s credit.
As I have also observed, ES’s explanation for discarding the bedsheets does not sit well with her failure to discard the tube of hand cream, the contents of which the offender had smeared on both his and her genitals in an attempt to provide lubrication to effect sexual penetration. One would have thought that, had ES wanted to discard the bedsheets so as not to be reminded of the attack, the same would have held true for the hand cream, which was used more directly and intimately in furtherance of the offending.
Quite separately from the manifold difficulties with ES’s evidence, for the reasons previously discussed, I consider that the evidence of sexual penetration was in such an unsatisfactory state that it simply was not open to the jury to be satisfied beyond reasonable doubt that the alleged offender penetrated ES’s vagina with his penis. Therefore, no matter the fate of the other charges, the convictions for rape, charges 3 and 4, cannot be permitted to stand.
There was not much objective support for ES’s evidence. Thus, properly understood, the probative value of the DNA was slight. And the applicant’s lies were not much of a counterbalance for the lies, improbabilities, inconsistencies, discrepancies and other inadequacies in ES’s evidence.
In Pell,[67] the High Court made it clear that the function of this Court
[67]Pell, 145 [39].
in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence,[68] in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisﬁed that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[68]Criminal Procedure Act 2009 (Vic), s 276(1)(a).
Having examined the record of the trial for myself, and proceeding on the assumption that the jury assessed ES’s evidence to be credible and reliable, I consider that, notwithstanding that assessment, the untruths, improbabilities, inconsistencies, discrepancies and inadequacies in the evidence were such that the jury, acting rationally, should have entertained a reasonable doubt as to the applicant’s guilt.[69]
[69]Cf [198].
That being so, I would grant leave to appeal; allow the appeal; set aside the convictions; and order judgments of acquittal on each charge.

Grounds 2 and 3: Lies

In his interview with police on 7 December 2018 the applicant told a number of lies. He denied knowing ES or going to her unit; he said he did not know anyone who lived in the street where ES’s unit was located; and he claimed that he went straight home after leaving Mordy HQ on 6 to 7 December 2018. These lies were told prior to police showing him CCTV footage demonstrating that he went to ES’s unit earlier that morning. It is fair to say, however, that even after being shown the footage, the applicant was less than forthcoming.
As I have mentioned, in his sworn evidence at trial the applicant admitted telling the relevant lies in the record of interview, but asserted that he did so to distance himself from the allegations of sexual and other offending.
Over objection, the prosecution were permitted to rely on the evidence of the applicant’s lies in the record of interview as evidence of incriminating conduct in relation to charges 1 to 5.
Hence, by a ruling on 26 July 2022, the trial judge held that the several lies told by the applicant in his police interview were reasonably capable of being viewed by the jury as evidence of incriminating conduct. The judge considered that, taking the evidence as a whole, it was open to the jury rationally to conclude that the applicant’s lies were reasonably capable of being viewed by the jury as evidence of incriminating conduct. He relied on the evidence of ES that she did not know the applicant and had not borrowed money from him. The judge also referred to the ‘long, elaborate, non-responsive answers’ of the applicant when giving evidence, and observed that the applicant ‘appeared to prevaricate in dealing with questions concerning lies to police’. He also noted that, when the applicant was shown an image of him taken from the CCTV footage at the unit, the applicant did not tell police that he knew ES and was there to collect money owed to him.
I consider that, first, the applicant’s lies were admissible as incriminating conduct; and, secondly, the judge’s directions on the topic were adequate.
By reason of s 18 of the JDA, the telling of a lie by an accused person which occurs after the event or events alleged to constitute an offence charged is capable of amounting to an implied admission of having committed the offence charged (or an element of the offence). The practical effect of 20(1)(b) is that the prosecution must not rely on a lie as evidence of incriminating conduct unless the trial judge determines that, ‘on the basis of the evidence as a whole’, the lie is reasonably capable of being viewed by the jury as an implied admission by the accused of having committed an offence charged (or an element of the offence). When the prosecution relies on a lie as evidence of incriminating conduct, s 21(1) in effect requires the judge to direct the jury that they may treat the lie as evidence that the accused believed that he or she had committed the offence charged (or an element of the offence) only if the jury concludes that the lie was told; and only if the jury concludes that the only reasonable explanation for the telling of the lie is that the accused held that belief. The judge must also direct the jury that, even if the jury concludes that the accused believed that he or she had committed the offence charged, the jury must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
Under cover of ground 2, counsel for the applicant submitted, first, that ES’s evidence was left in such an unreliable state that the trial judge should not have been satisfied that any jury acting rationally could conclude that the only reasonable explanation for the applicant’s lies was that he had believed he had committed the offences. The state of ES’s evidence was such that the applicant’s explanation for the lies — that he was attempting to distance himself from false allegations — could not rationally be excluded by any jury.
Secondly, counsel for the applicant contended that, in permitting the prosecution to rely on the applicant’s lies as incriminating conduct, the judge erred by failing to consider separately on each individual charge the proposed incriminating conduct reasoning. Counsel submitted that the judge had to be satisfied that the jury acting rationally could conclude that the only reasonable explanation for the lies was that the applicant believed he had committed each of charges 1 to 5. By way of illustration, even on ES’s evidence there was a very real issue as to whether penetration had occurred for the purposes of charges 3 and 4.
These submissions cannot be accepted.
The applicant said that he told the lies so as to distance himself from the alleged offending. But it is clear that, even after he was made aware that police knew he had been to the unit, the applicant said nothing about being owed money. In those circumstances, it would be open to the jury to reject the applicant’s explanation for his lies. Moreover, when he told the lies, he could not have known of the supposedly unsatisfactory state of ES’s evidence.[70]
[70]Cf [233].
Importantly, a fallacy that seems to underpin the arguments of the applicant’s counsel concerning the admissibility of the lies is that there was a requirement that the jury needed to be satisfied that the applicant’s implied admissions attached to each individual charge. But that cannot be so. In the present case there was only ever alleged to be one offender, who had forced his way into ES’s unit, threatened her and sexually offended against her (whether that conduct involved attempted or complete penetration). For the lies to be admissible, it was sufficient if they were reasonably capable of being viewed by the jury as an implied admission of having committed ‘an offence charged or an element of an offence charged’. There was, as I have said, only one offender, who had committed all the offences in charges 1 to 5 on a single occasion. The jury needed to be satisfied that the applicant’s lies were evidence that he believed he was that offender. There was no basis upon which the jury could consider whether the applicant believed that he had committed one or more offences and not the others.[71]
[71]Cf [235].
I would not uphold ground 2.
Neither would I uphold ground 3, which contends that the judge erred in his directions on lies.
In his charge to the jury, the judge directed them that the applicant’s lies could be used in two ways. First, the lies could be used to assess the applicant’s credibility. So much is uncontroversial.
The judge directed the jury as to the second way the lies could be used as follows:
You may be able to use a lie told as evidence that [the applicant] believed that he had committed one or more of the offences charged. You may only use evidence that [the applicant] lied in this way if you find that he did tell a deliberate untruth and that the only reasonable explanation for doing so is that he believed that by telling the truth as to those matters that would implicate him in the serious criminal conduct said to have occurred at [ES’s] unit in the early hours of 2 November. Now, when I just referred to those matters, I am referring to the lies that it is said he told police that he did not know anyone in [name of street]. That the lies in saying that the block of units were not known to him and the lies that on 7 December he went home after attending the Mordy HQ via a service station and not going to [ES’s] unit.
However, I must warn you that even if you find that he believed that he committed the offence or offences charged, you must consider all of the evidence when deciding whether the prosecution has proved his guilt beyond reasonable doubt. I need also to warn you that there are all sorts of reasons why a person might behave in a way that makes him or her look guilty. This means that [the applicant] may have lied even though he is not guilty of each of the offences charged.
For example, he may have lied because as he said in his evidence he wanted to distance himself from serious allegations. This might have been because of a fear that if he acknowledged knowing [ES] or acknowledged having attended her address that very morning, being the morning of 7 December 2018 and on the other occasions, he would not be believed that he went there to collect a debt owed to him. He might have lied out of panic, having been accused of serious allegations and not been believed.
Even if you think that his conduct makes him look guilty, that does not necessarily mean that he is guilty. Now, [the prosecutor] submitted that he lied because he did not have an innocent explanation. She said he lied to distance himself not because he is innocent, but because he knew what he had done in the small hours on 2 November. She argued that his evidence before you was a work of fiction to dig himself out of the hole that he had dug for himself during his record of interview. [Defence counsel] told you that [the applicant] gave you an explanation when he gave evidence before you as to why he lied. He said that he had sought to distance himself from the serious criminal allegations. He became scared thinking that if he acknowledged the truth, police would think that he was responsible for the crimes he states that he did not commit.
Counsel for the applicant submitted that the judge’s directions were inadequate in the context of the multi-charge indictment and having regard to the evidence in this case. By directing the jury as to a belief that he would implicate himself in the serious criminal conduct that was said to have occurred at ES’s unit, the trial judge failed to direct the jury to consider separately whether a required precondition for the use of incriminating conduct reasoning had been met for each charge on the indictment. Counsel submitted that, by failing to direct the jury to consider separately whether the only reasonable explanation for the lies was a belief that the applicant had committed the individual offence under consideration, the trial judge not only failed to comply with s 21 of the JDA, but also failed to guard against the misuse of the applicant’s lies.
Once more, these submissions cannot be accepted.
The issue of the applicant’s belief as to whether he had committed offences 1 to 5 was a matter to be addressed by reference to all of the charges, against the backdrop that there was only ever said to be a single offender who forced his way into ES’s unit, threatened her and sexually offended against her. There was no basis upon which it might have been concluded that the applicant had the requisite belief with respect to one or some of the charged offences only (including the alternative attempt offences to the charges of rape). This was not a case where, for example, the lies went to specific, but not other, acts of offending.[72]
[72]Cf [241].
The judge’s directions were adequate. Ground 3 must fail.
I should add that, although I have concluded that the applicant’s lies were admissible, and that the judge’s directions were adequate, that does not influence my conclusion that the verdicts were unreasonable or cannot be supported by the evidence. In the particular circumstances of this case, which I have discussed when dealing with the first ground, I consider that when the applicant’s lies are assessed in the context of the whole of the evidence, they do not have much probative value.

Conclusion

For the foregoing reasons, I would grant leave to appeal on ground 1; allow the appeal; set aside the convictions; and order verdicts of acquittal on each charge.

---

[2024] VSCA 292

28 November 2024