Barton (a pseudonym) v The King; Director of Public Prosecutions v Barton (a pseudonym)
[2025] VSCA 74
•11 April 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2023 0249 | |
| CRAIG BARTON (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.
| S EAPCI 2024 0027 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| CRAIG BARTON (A PSEUDONYM) | First Respondent |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Respondent |
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| JUDGES: | PRIEST, BOYCE and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2025 |
| DATE OF JUDGMENT: | 11 April 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 74 |
| JUDGMENT APPEALED FROM: | DPP v Barton (a pseudonym) [2023] VCC 707 (Conviction); DPP v Barton (a pseudonym) [2023] VCC 2205 (Sentence) (Judge Riddell) |
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CRIMINAL LAW – Appeal – Conviction – Rape and related sexual offending – Whether judge should have taken into account in manner adverse to complainants’ credibility and reliability their failure to give evidence in accordance with prosecution opening – Open to judge to find complainant generally truthful and reliable – Application granted – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Rape and related sexual offending – Total effective sentence of 24 years and 4 months’ imprisonment – Whether manifestly excessive – Application granted – Appeal allowed – Applicant resentenced accordingly.
CRIMINAL LAW – Judicial Review – Judge erred in fixing duration of order under Sex Offenders Registration Act 2004 at 28 years – Having been found guilty of a registrable offence became subject to reporting conditions for life – Orders set aside, unnecessary to make orders in proceeding for judicial review and struck out with no determination on the merits and no order for costs.
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| Counsel | ||
| Applicant/First Respondent: | Ms S Flynn KC with Ms M Deighton | |
| Respondent/Plaintiff: | Ms E Ruddle KC with Mr L McAuliffe | |
Solicitors | ||
| Applicant/First Respondent: | Doogue + George | |
| Respondent/Plaintiff: | Ms A Hogan, Solicitor for Public Prosecutions | |
PRIEST JA:
Introduction
An indictment filed in the County Court charged ‘Craig Barton’ (for convenience, ‘the applicant’) with sexual and other offences against two adult female complainants, ‘LV’ and ‘CM’, with both of whom, at different times, he was in a domestic, sexual relationship. A deal of the sexual offending against both complainants was alleged to have occurred in a ‘bondage’ setting, accompanied by the use of restraints and sex devices. The charges of rape included penile-vaginal, penile-anal and penile-oral penetration, together with vaginal ‘fisting’ and penetration of the vagina and anus with objects.
In total, the indictment contained 27 charges: 18 charges of rape; four charges of indecent assault; two charges of false imprisonment; two charges of making a threat to kill; and one charge of common assault. Those involving LV included one of common assault (charge 1); one of false imprisonment (charge 3); and 10 of rape (charges 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12), in a period between 1 November 2011 and 8 January 2014; and those involving CM include one of false imprisonment (charge 16); two of making a threat to kill (charges 23 and 25); three of indecent assault (charges 18, 19 and 20); and nine of rape (charges 13, 14, 15, 17, 21, 22, 24, 26 and 27), in a period between 1 April 2014 and 30 June 2017.
The applicant was tried on the indictment by judge alone between 31 January and 17 February 2023.[2]
[2]The trial was conducted pursuant to s 420E(1) of the Criminal Procedure Act 2009 (since repealed). Initially, the trial judge had refused trial by judge alone, but that decision was reversed by this Court on an interlocutory appeal.
In the course of the trial, on 6 February 2023, the prosecution applied to file over the indictment to substitute a charge of indecent assault for one of rape relating to CM (charge 13) which, it was conceded, had not been made out in evidence. Over objection by defence counsel, the trial judge granted that application.
Furthermore, on 14 February 2023, defence counsel submitted that there was no case to answer on charge 3 (based on the alleged failure to untie LV after she had initially consented to restraint); charge 10 (an alleged penile-vaginal rape of LV during the same incident as charges 8 and 9); charge 12 (an alleged penile-anal rape of LV during the same incident as charge 11); and charge 22 (an alleged penile-oral rape of CM during the same incident as charge 21). The prosecution conceded that there was no case to answer, and the judge directed acquittals on those charges.
Ultimately, on 3 May 2023, the trial judge found the applicant guilty of 19 of the remaining charges: 11 charges of rape (charges 4, 8, 9, 11, 14, 15, 17, 21, 24, 26 and 27); four charges of indecent assault (charges 13, 18, 19 and 20); two charges of making a threat to kill (charge 23 and 25); one charge of false imprisonment (charge 16); and one charge of common assault (charge 1); but found the applicant not guilty on a further four charges of rape, they being charge 2 (‘the anal hook incident’), and charges 5, 6 and 7 (’the spider gag incident’).[3]
[3]See DPP v Barton (a pseudonym) [2023] VCC 707 (‘Reasons’).
A plea in mitigation was conducted on 30 August 2023. Subsequently, on 27 November 2023, the judge sentenced the applicant to a total effective sentence of 24 years and four months’ imprisonment, with a non-parole period of 17 years and eight months, in accordance with the table set out below.[4] Pursuant to s 11 of the Sex Offenders Registration Act 2004 (‘SORA’), the judge also ordered that the applicant be a registrable offender, and purported to order that the length of the reporting period under s 34 be 28 years.[5]
[4]At [83].
[5]See DPP v Barton (a pseudonym) [2023] VCC 2205 (‘Sentence’).
There are now three proceedings before the Court. The first two proceedings are conventional applications for leave to appeal against both conviction and sentence filed by the applicant on 27 December 2023. By way of contrast, the third proceeding — the perceived necessity for which I will explain later in these reasons[6] — is an Originating Motion filed by the Director of Public Prosecutions in the Trial Division on 9 February 2024, reserved for the consideration of this Court by virtue of an order made by Richards J on 13 March 2024 pursuant to s 17B(2) of the Supreme Court Act 1986. In that proceeding the Director seeks relief in the nature of certiorari, seeking to quash the order made by the trial judge under s 34 of the SORA to the effect that the length of the reporting period is 28 years.
[6]See [117].
For the reasons that follow, I would grant leave to appeal against conviction, but dismiss the appeal. As to sentence, I would grant leave to appeal; allow the appeal; and resentence the applicant in the manner set out below.[7] As part of the resentencing exercise, relying on s 282 of the Criminal Procedure Act 2009 (‘CPA’), I would make orders that will result in the effective setting aside of that part of the judge’s order, purportedly made under the SORA, fixing the reporting period at 28 years. That being so, it is unnecessary to consider the proceeding for judicial review. The judicial review proceeding should be struck out with no determination on the merits (and with no order for costs).
[7]At [101].
The offending
Before turning to the applications in this Court, it is necessary to provide a brief summary of the applicant’s offending.
Charge 1: Common assault
The applicant and LV had a son in July 2011. On an occasion towards the end of 2011, LV was holding the child when the applicant — who had arrived home from work in an angry state — threw a cordless telephone at them, which smashed into the wall above LV’s head.
Charge 4: Rape
Around April or May 2012, the applicant and LV were living in a caravan situated on the applicant’s parents’ property. The applicant tied LV to a pillar in the kitchenette of the caravan. LV consented to the restraint, anticipating penile-vaginal intercourse. Penile-vaginal penetration occurred consensually, with the applicant standing behind LV. It seems that the applicant became frustrated, however, by an inability to fully penetrate LV’s vagina. He then withdrew his penis from LV’s vagina and, without warning, fully penetrated her anus without lubrication, causing her pain. Although LV said ‘no’, the applicant did not withdraw his penis, and continued penetration until he ejaculated.
Charges 8 and 9: Rape
On 7 January 2013, LV had a colonoscopy and gastroscopy under general anaesthetic, and then went to stay at her mother’s home. She and the applicant went to bed, and, while LV faced the wall, the applicant pulled her pants down. LV told the applicant that she did not want to have sex, feeling unwell after the medical procedures earlier in the day. The applicant pulled LV to her knees and penetrated her vagina with his penis from behind (charge 8), notwithstanding that she was crying. He then spat on LV’s anus and penetrated it with his penis (charge 9).
I pause to note that the prosecutor opened that the applicant penetrated LV’s vagina with his penis a second time after the anal penetration (charge 10, rape), but LV failed to give any evidence of the second alleged vaginal rape.
Charge 11: Rape
The following night, LV attended a night market, and then returned to her mother’s house. Upon going to bed, the applicant told LV that he needed to have sex, but she said that she did not want to. Having put LV on her stomach, the applicant took her pyjama pants down and had penile-vaginal sex with her, despite the fact that she was crying and saying that she did not want to have sex. The applicant then repeatedly intimidated LV with a piece of wood, this incident precipitating the end of their relationship.
It is to be noted that the prosecutor opened that the applicant anally raped LV with his penis (charge 12, rape) following the penetration founding charge 11, but LV gave no evidence of that alleged anal penetration.
Charges 13 and 14: Indecent assault and rape
After the end of his relationship with LV, the applicant commenced another with CM, who moved into his residence in March 2014. Early in the relationship, the applicant tied CM to a table with her consent. He then performed consensual oral sex on her, and engaged in penile-vaginal intercourse. After having sex with CM, the applicant rolled a hot metal ball over her body, causing her pain. CM, who was crying, told the applicant to stop, but he poured hot wax onto her vagina (charge 13). He then penetrated CM’s vagina with his penis while she sobbed and told him to stop, continuing until ejaculation (charge 14).
Charge 15: Rape
In early 2015, while CM was pregnant with the applicant’s child, the two had an argument. The applicant pushed CM onto the bed on her stomach. He then lifted her skirt and pulled down her underwear, before penetrating her vagina with his penis. CM was telling him to ‘stop’, saying ‘this is not good for the baby’.
Charges 16, 17, 18, 19 and 20: False imprisonment, rape and indecent assault
While CM was pregnant with their son, the applicant constructed a ‘sex chair’. A few weeks after giving birth in early 2015, CM agreed to be tied to the sex chair. When CM was restrained, the applicant placed his entire fist into her vagina whilst he masturbated. It was very painful and she told him to stop (charge 17). After removing his fist, the applicant attached clamps to CM’s nipples and electrocuted her while CM screamed and cried in pain (charge 18). He then put the clamps on CM’s vulva and again electrocuted her (charge 19), before slapping her in the face with his penis (charge 20). CM was ‘hysterical’ by this point. Although her initial restraint was with CM’s consent, her continued restraint was not (charge 16).
Charge 21: Rape
On an occasion in 2015, when CM was sitting on the toilet, the applicant put his penis into CM’s mouth despite her threat to bite his penis if he did so. The applicant then withdrew his penis after CM bit down on it.
I note that the prosecutor opened that there was another act of penile-oral rape (charge 22, rape) that occurred immediately following the penetration the subject of charge 21, but CM failed to give any evidence of it.
Charge 23: Threat to kill
In early 2017, when CM was pregnant with another child, the applicant told CM that if she left him he would kill her. The applicant then threw CM against a bookcase and tried to choke her.
Charge 24: Rape
CM underwent an emergency caesarean section in March 2016, giving birth to another son. Following the birth, whilst she still had a surgical scar, CM awoke to find the applicant on top of her, commencing to penetrate her vagina with his penis. CM felt a great deal of pain in the scar, said that she did not want to have sex and told the applicant to stop. The applicant continued to have sex with CM, however, until he ejaculated.
Charge 25: Threat to kill
In April 2016 the applicant and CM had a heated argument. The applicant pushed CM onto the bed, put his hands around her throat, told her he hated her and said he was going to kill her.
Charge 26: Rape
After returning from a social event in early 2017, CM lay face down on the bed, intending to go to sleep. Notwithstanding that CM indicated that she did not want to engage in sexual activity, the applicant pulled her onto her hands and knees and penetrated her anus with his penis without lubrication, causing her pain. CM begged the applicant to stop but he continued penetrating CM until he ejaculated.
Charge 27: Rape
Around late May or early June 2017, CM was asleep. The applicant woke her and told her that he wanted to have sex. CM said ‘no’, but the applicant penetrated her vagina with his penis and continued until he ejaculated.
Directed acquittals
To risk repetition, LV gave no evidence to support charges 3 (false imprisonment), 10 (penile-vaginal rape) and 12 (penile-anal rape), and CM gave no evidence to support charge 22 (penile-oral rape). A submission of no case to answer resulted in acquittals on those four charges.
Verdicts of not guilty: The anal hook and spider gag incidents
At this point, it is also convenient to describe briefly the allegations founding the charges upon which the judge found the applicant not guilty.
Charge 2, rape, and charge 3, false imprisonment (which resulted in a directed acquittal) were part of the one episode, referred to as the ‘anal hook’ incident. The prosecution alleged that on a day between 1 November 2011 and 31 May 2012, LV consented to her arms and legs being tied with rope. While she was restrained, the applicant retrieved an anal hook, which was a device shaped like a hook with a metal ball on the pointed end. Notwithstanding that LV said ‘no’ to the insertion of the anal hook, the applicant penetrated her anus with it (charge 2). The hook was cold and it hurt, but the applicant did not remove it when LV said, ‘get it out of me’. LV tried to break free of the restraints because she was in pain, and asked the applicant to untie her. Despite her requests to be freed, however, the applicant left LV restrained for 20 minutes (charge 3).
During her evidence, LV failed to give evidence of being tied up with ropes to her arms and legs, relevant to charge 3. Moreover, the judge found the applicant not guilty of charge 2 on the basis that, although she was satisfied that LV did not consent to the insertion of the anal hook, she could not be satisfied beyond reasonable doubt that the applicant was aware that LV was not, or might not be, consenting, or that he was not giving any thought to LV’s consent.[8]
[8]Reasons, [897].
Charges 5, 6 and 7 were all part of what was referred to as the ‘spider gag’ incident. The prosecution case was that, one night in 2023, the applicant performed consensual oral sex on LV. He then strapped a ‘spider gag’ to her head, that being a metal device which holds the mouth open with a metal ring in the centre. The applicant then inserted a ‘sounding device’ into LV’s urethra (charge 5), and a sex toy into her vagina (charge 6), without her consent. After inserting the sex toy, the applicant inserted his fist into LV’s vagina, despite the fact that LV was making noises indicating that she wanted the applicant to stop (charge 7). LV was crying and in a lot of pain, and when the applicant removed his fist it was covered in blood.
At trial, the applicant denied inserting a sounding device into LV’s urethra (charge 5), and asserted that the penetration of LV’s vagina with the sex toy (charge 6) and his fist (charge 7) was consensual. On charge 5, the trial judge was not satisfied beyond reasonable doubt that when the applicant inserted the sounding device into LV’s urethra — the judge was satisfied that he had done so — he was aware that LV was not, or might not be, consenting, or that he was giving no thought to whether she was consenting.[9] And on charges 6 and 7, the judge could not exclude the possibility that LV ‘was consenting to what was occurring and was participating in what was occurring’.[10]
The conviction application
[9]Reasons, [972].
[10]Reasons, [991]–[992].
The ground of appeal
The applicant’s sole ground of appeal against conviction contends that the trial judge
erred in law, in refusing to take into account the complainant’s [scil, complainants’] failure to give evidence in accordance with the prosecution opening, thereby giving rise to a substantial miscarriage of justice.
Although, by its terms, the ground made no distinct reference to credibility, the gist of counsel’s argument advanced in support of it was that the judge should have concluded that the complainants’ failures to give evidence supporting charges 3, 10, 12 and 22, in accordance with the case as opened by the prosecution —which led to directed acquittals on those charges — materially affected their credibility and reliability. The judge’s refusal to take into account the complainants’ failure to give evidence in accordance with the evidence as opened by the prosecution on those charges occasioned a substantial miscarriage of justice, since the judge should have taken into account the complainants’ diminished credibility and reliability generally when considering whether the other charges on the indictment had been proven to the criminal standard.
The course of the trial and the impugned ruling
The issues relevant to the ground of appeal arose in the following way. After the prosecution’s final address, the judge asked the prosecutor whether she should (or should not) draw anything from the fact that LV gave no evidence about charges 10 and 12.[11] In answering the judge’s question, the prosecutor submitted that the judge ‘should put that entirely to one side’. There was ‘no evidence relating to anything to do with the basis of those charges’, so that the trial judge ‘should put that entirely to one side’. When assessing the complainants’ credibility, the judge should act on the evidence before her, not on any lack of evidence.
[11]Although the judge referred to charge 11, it is tolerably clear she meant charge 12.
By way of response, in the course of her final address, senior counsel for the defence reminded the judge that on charge 3 ‘there was no evidence of being tied with the ropes’; on charge 10, there was ‘no evidence of vaginal penetration’; on charge 12, there was ‘no evidence of anal penetration’; and on charge 22, there was ‘no evidence of oral penetration’. Counsel submitted that the judge ‘simply doesn’t put that to the side and not use that to be able to assess the credibility of [LV’s] or [CM’s] evidence’. Further, defence counsel submitted that the judge could use the complainants’ failure to give evidence to support the four charges ‘to judge their credibility and reliability … not only in relation to the particular incident where they failed to give that evidence but globally when [the judge was] scrutinising the whole of their evidence’. Counsel submitted that the fact that the complainants did not give evidence to support the four charges, so that the ‘narrative’ that was opened changed and directed acquittals followed in relation to the particular charges, was a matter that the trial judge ‘ought to and should take into account’ when assessing the complainants’ credibility and reliability.
The trial judge interrupted the defence closing address, conscious that the submissions raised a matter of law that required resolution. Given the time of day that had been reached, it was resolved that defence counsel would consider the matter overnight before resuming the closing address. When the trial resumed, defence counsel maintained the position that the divergence between what was opened by the prosecution, and the evidence that was given (or not given) by the complainants, could be used by the trial judge to assess the complainants’ overall credibility and reliability. Senior counsel then resumed her closing address on the basis that the trial judge would rule on the matter in due course.
Ultimately, the trial judge ruled that she neither could, nor should, take into account the acquittals on charges 3, 10, 12 and 22, in conjunction with the prosecution opening, when assessing the complainants’ credibility or reliability. The judge observed that it was ‘a sound forensic decision’ by defence counsel not to cross-examine the complainants on any earlier accounts of the incidents involving the four charges, since doing so ‘preserved’ the witnesses’ evidence-in-chief and ‘resulted in successful no case applications’. And the judge said:[12]
However, once this decision was made, and a decision made not to seek to discharge the tribunal of fact, I cannot then be asked to speculate about what may have been in a complainant’s statement or earlier evidence for the inclusion of those matters in the Prosecution Opening. To do so would elevate the Prosecution Opening to evidence, specifically a prior inconsistent statement; however, I would have no capacity to assess any earlier description and its impact on my consideration of the credibility or reliability of the complainant.
[12]Emphasis added to this and passage following.
Later, when giving her reasons for her verdicts, the trial judge said:[13]
There was argument at the conclusion of all evidence with respect to what use if any I could or should make of the fact that four charges were the subject of successful no case submissions. In relation to each of those charges there was a complete absence of evidence to found the charge.
[The prosecutor] argued that I must ignore the fact of verdicts of Not Guilty being entered on those charges and must return to the evidence and base my decisions on the evidence which was given.
[Defence counsel] argued that I could take into account the opening address of the Prosecution which outlined what evidence was anticipated, and the fact that no evidence was given by one or other complainant on the relevant charges. They submitted I could use that fact when assessing the credibility of each complainant. In other words that I could conclude the particular complainant has not ‘sworn up’ to earlier evidence.
I reject the Defence submission. I have outlined my reasons for doing so in a separate decision. Put shortly, the Prosecution Opening is not the evidence and I must base my verdicts only on the evidence. In circumstances where there was simply no evidence to support the four particular charges it would require me to speculate about what was in the complainant’s statement or earlier evidence which led to the inclusion of matters in the Prosecution opening. It would in effect elevate the Prosecution opening to evidence, specifically a prior inconsistent statement; however, I would have no capacity to assess any earlier description, detail, reliability or credibility of any earlier account.
[13]Reasons, [38]–[41].
The submissions in this Court
As I have indicated, in this Court counsel for the applicant submitted that the trial judge fell into error in ruling that she was not able to take into account the difference in the manner in which the prosecution opened its case, and the evidence which was given by the complainants, in order to impeach the complainants’ credit. Counsel submitted that a trier of fact is entitled to take into account the divergence between the evidence that was relied on by the prosecution to bring the charges and the fact that the complainants failed to ‘swear up’ to that evidence. The applicant’s counsel submitted that there is no requirement for the defence to have cross-examined a complainant about an inconsistency in order for the trier of fact to be able to use a difference between the way the trial was opened and the ultimate evidence. Defence counsel were hamstrung in their ability to cross-examine on the asserted inconsistencies because charges 3, 10, 12 and 22 were not the subject of verdict until after all of the evidence closed. Nevertheless, it was still open to defence counsel to take advantage of the fact that the complainant did not ‘swear up’ as bearing specifically on the complainant’s reliability and credibility and on the strength (or lack thereof) of the prosecution case.
The applicant’s counsel submitted that by refusing to take into account the changed prosecution case, the trial judge did not allow the defence to take advantage of the substantial change in the accounts of the complainants in relation to the four separate incidents for both the related charges or as to their evidence as a whole. In assessing the complainants’ credibility and reliability the trial judge should have considered those discrepancies. The failure to do so has led to a substantial miscarriage of justice.
Counsel for the respondent submitted in this Court that nothing in the CPA makes a prosecution opening — oral or written — evidence in a trial. A prosecution opening is merely an indication of what the prosecution anticipates the evidence will be. There is no common law rule, and nothing in the CPA or the Jury Directions Act 2015 (‘JDA’), that requires a trier of fact to consider a prosecution opening to be evidence or to take it into account when assessing a complainant’s credibility or reliability.
Discussion and analysis
There are various time-honoured methods by which an accused person might attack the credibility of a prosecution witness, principal among those being to establish that the witness has made a prior inconsistent statement. (Other methods include, for example, establishing that the witness suffers from a physical or mental impairment; has prior convictions or has been guilty of some other form of misconduct; or is afflicted by bias, interest or corruption.)
Any attack on the credit of a witness must, however, be evidence-based. At common law, the ‘collateral evidence rule’ (or ‘finality rule’) — founded on the desirability of avoiding a multiplicity of issues — provided (subject to a number of exceptions) that an answer given by a witness to a question in cross-examination relating solely to credit (or other collateral issue) was final, and further evidence could not be led on the issue. Hence, answers given by a witness to questions put in cross-examination concerning collateral facts had to be treated as final: ‘They may or may not be accepted by the jury, but the cross-examiner must take them as they come, and cannot contradict them by other evidence’.[14] Where, however, an exception to the collateral evidence rule applied, it was generally necessary to confront the witness with the substance of the evidence said to adversely affect his or her credit before evidence of the collateral matter was adduced.
[14]R v BDX (2009) 24 VR 288, 304 [88] (Vincent and Weinberg JJA). See also Nicholls v The Queen (2005) 219 CLR 196, 216 [38] (McHugh J).
In the present case, the applicant’s trial counsel sensibly did not seek to challenge the complainants on any alleged prior inconsistent statements relevant to charges 3, 10, 12 and 22. It would have been forensically unwise to have done so. In circumstances where the complainants had failed to give any evidence-in-chief that might have supported convictions on those four charges — rendering successful submissions of no case to answer virtually inevitable — it is unsurprising that the applicant’s counsel were astute to avoid the risk of revivifying the charges by cross-examining the complainants on previous statements (or other material) that might initially have justified the presence of the charges on the indictment. As a result, notwithstanding that it might readily be assumed that the four charges had been included on the indictment, and the written and oral prosecution opening had been formulated, based upon statements made by the complainants to police (or on committal depositions or the like), there strictly was no evidence before the trial judge that the complainants had made a prior inconsistent statement concerning any matter relevant to those charges.
The foregoing conclusion is compelled by the indisputable fact that neither the written or oral prosecution opening constituted evidence. Quite clearly, the prosecution opening was not evidence at common law. Nor is a prosecution opening evidence for the purposes of the CPA. Indeed, the principal purpose of the prosecution opening is simply to make the prosecution case clear, so that the judge, jury and defence counsel are able to comprehend the case and understand the evidence as it unfolds.[15] As Hunt CJ at CL observed in Tangye:[16]
The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage.
[15]R v Haydon (No 7) [2005] SASC 21, [40] (Sulan J); North (a pseudonym) v DPP (Cth) [2020] VSCA 1, [65] (Priest and Weinberg JJA); Said v The Queen [2020] VSCA 178, [42] (Beach, Emerton and Weinberg JJA); Becker v The Queen [2023] VSCA 332, [122] (Emerton P, Priest JA and Kidd AJA).
[16]R v Tangye (1997) 92 A Crim R 545, 556.
In a like vein, the Court remarked in Tran:[17]
In the conduct of a trial, the prosecutor’s duty of fairness typically arises first when the prosecutor opens the Crown case to the jury. The opening is intended to inform them briefly of the elements of the offence or offences charged, the facts which constitute each offence, and the witnesses the prosecution intends to call to prove those facts. The prosecutor will ordinarily make clear, in outlining the elements of the offences to be proven, that directions regarding the applicable law are the province of the judge. A prosecutor must not make any reference to proposed evidence where its admissibility is in dispute. A prosecutor should not advance any theory, or make any submission, which does not carry conviction in the prosecutor's own mind. Importantly, although a prosecutor may legitimately invite the jury to draw inferences from such facts as are proved, the prosecutor must not encourage the jury to engage in mere speculation or conjecture.
[17]Tran v The Queen (2000) 105 FCR 182, 202 [130] (Black CJ, Weinberg and Kenny JJ) (‘Tran’).
Requirements for, and of, a prosecution opening are now governed by the provisions of the CPA. By reason of s 182(1), the DPP is required to file a summary of prosecution opening pre-trial. Section 182(2) provides that the summary of prosecution opening must outline ‘(a) the manner in which the prosecution will put the case against the accused’; and ‘(b) the acts, facts, matters and circumstances being relied on to support a finding of guilt’. In turn, s 224(1) of the CPA provides that, at trial, the prosecutor ‘must give an opening address to the jury on the prosecution case against the accused before any evidence is given’. And s 224(2) provides that, unless the trial judge considers that there are exceptional circumstances, when opening the case to the jury the prosecutor must restrict himself or herself to the matters set out in the filed summary of prosecution opening.[18]
[18]At the time of the trial, s 420U(1) of the CPA provided that, in a trial by judge alone, ‘the prosecutor’s opening address under section 224 is to be presented to the trial judge’.
Although the CPA provides that the prosecution opening must outline the acts, facts, matters and circumstances being relied on to support a finding of guilt, nothing in the CPA prescribes the sources from which the prosecution opening must be drawn. Both prior to, and following, the promulgation of the CPA, however, the inveterate practice of prosecutors has been to formulate the prosecution opening from available evidence, such as witness statements to police and law enforcement officials; committal depositions; other documentary evidence (including photographs, maps, audio and video recording, and similar); and sources such as real evidence. Given the duties resting on prosecutors, it has long been regarded as improper for a prosecutor to include in an opening any alleged act, fact, matter or circumstance, which the prosecutor did not reasonably believe to be capable of being established by the available evidence. Axiomatically, a prosecutor is a minister of justice, and must act with scrupulous fairness in the presentation of the prosecution case.[19] As part of that duty of fairness, a prosecutor must not advance a submission to the jury (or judge in a judge alone trial) that lacks an appropriate evidentiary basis.[20] Hence, when a prosecutor includes in a written or oral opening any alleged act, fact, matter or circumstance, it may generally be assumed that there is evidence in the hands of the prosecution justifying its inclusion in the opening.
[19]Paulino v The Queen [2018] VSCA 306, [141] (Priest, Beach and Kaye JJA), citing R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ).
[20]Ibid [110].
Particularly when a prosecutor opens the expected oral testimony of a witness, however, the opening will always be in one sense aspirational, since it is not unknown for witnesses to fail to ‘swear up’ to their previous statements. But although a witness’s departure from his or her testimony as anticipated in the opening may be an indication that the witness has departed from a statement to police (or other source material), unless he or she is confronted in evidence with the previous statement (or other source material) upon which the opening was based, there will be no evidence before the trier of fact of the previous statement (or other source material) departed from; the nature and extent of the departure; and any reason for the departure. There will be no direct evidence of what the prior inconsistent statement might have been (or its origin), and no means by which to judge its possible effect on the witness’s credibility and reliability. Those things will dwell in the realm of speculation.
It is convenient at this point to pause to observe that there have been occasions when the questions of counsel, or counsel’s opening, have taken on an evidentiary status. In all of the decided cases, however, it has been the questions or opening of an accused person’s counsel that have assumed an evidentiary status, on the basis that counsel’s questions or opening may reflect the accused person’s instructions. Hence, it has been held that an inconsistency between facts alleged in counsel’s cross-examination or opening may, in some circumstances, found an inference of recent invention, adversely affecting an accused person’s credit.
One such case was Wright,[21] in which the appellant was convicted of murder. The prosecution case included a record of interview in which the appellant ostensibly admitted his guilt and described the circumstances of the killing. At trial, the appellant alleged that the record of interview had been made after he was assaulted by a police officer with a jab to the throat and another officer threatened further violence and threatened to charge the appellant’s wife as an accessory. This version of events, however, varied from one put to a police officer by the appellant’s solicitor at the committal hearing. The prosecution attacked the credibility of the appellant with the different versions of the assault. On appeal, Hunt J (with whom Wood and McInerney JJ agreed) held that the prosecution’s attack on the appellant’s credit was proper. The inference to be drawn was that the solicitor was acting upon the instructions of the appellant in putting allegations to police at committal, those instructions clearly being inconsistent with the allegations made at the trial.[22]
[21]R v Wright (1990) 49 A Crim R 462 (‘Wright’). See also R v Birks (1990) 19 NSWLR 677.
[22]Ibid 468–9.
Quinn[23] involving a charge of conspiracy to defraud, was another case where, in order to contend that there had been recent invention by the accused, the prosecution relied on questions in defence counsel’s cross-examination of the central prosecution witness (an alleged co-conspirator). In the course of the trial, counsel had made suggestions to the witness about the nature of an important conversation between the witness and the accused. Counsel’s suggestions differed from suggestions about the same conversation that had been put by counsel in cross-examination at committal proceedings. Brooking JA (with whom Batt JA and Vincent AJA agreed) held that no substantial miscarriage of justice resulted from the prosecution’s conduct at trial, or from the trial judge’s directions to the jury that it was open to them to draw an adverse inference about the accused person’s credibility by virtue of recent invention.
[23]R v Quinn (Unreported, Vic, CA, 10 October 1999) (‘Quinn’).
In Ali,[24] the appellant was convicted of intentionally causing serious injury. He had been convicted on the same charge at an earlier trial, but that conviction had been quashed on appeal. The prosecution case was that he had attacked and seriously injured the victim when they were both prisoners in holding cells in the Magistrates’ Court in Melbourne. Evidence in both trials was given by six other prisoners who were in the same cell as the accused and victim. After the six had given evidence in the second trial, the prosecution was permitted to read from the transcript of the cross-examination of three of them at the previous trial. In the first trial, it had been put to the three prisoners that they had assaulted the victim, whereas in cross-examination at the second trial that suggestion had been put only to two of them. Charles JA (with whom Ormiston and Callaway JJA agreed) — while acknowledging that ‘the evidence might possibly have been put in certain circumstances in cross-examination of the applicant if he had been called as part of the defence case’ — held that the evidence ‘had no probative value at all’. He observed:[25]
The failure of counsel to put directly to two of the three prisoner witnesses … that they had participated in the assault, in my view, indicated no more than that the accused’s instructions were that the assault had been perpetrated by a number of the prisoners in the cell. In light of the denials of [the two witnesses] at the first trial, defence counsel presumably took the view that there was no point in putting to them specifically that they had participated. To do so only invited further strong denials from them and, if the jury was impressed by such denials, would have reduced in their minds the number of potential assailants on the victim. In this way the cross-examination carried only the implication that the applicant said other prisoners had committed the assault on the victim but he was not then prepared to say which. There were, also, understandable forensic reasons why defence counsel might have changed his tactics at the second trial.
[24]R v Ali(No 2) (2005) 13 VR 257 (‘Ali’).
[25]Ibid 264, [23].
Heaney[26] was a case of attempted murder in which the accused gave evidence. In the course of cross-examination, the prosecutor put to him that he was giving evidence that had not been put to prosecution witnesses by his counsel, and that he had given evidence inconsistent with facts that had been put by his counsel to prosecution witnesses. Ashley JA (with whom Redlich and Kellam JJA agreed) held that it was open to the prosecutor to impugn the credibility of the accused’s evidence on the basis of recent invention. He observed:[27]
An allegation of recent invention on the part of an accused may be founded upon any one or more of a number of circumstances, at least including:
(1) Failure of accused’s counsel to cross-examine a Crown witness as to matters later put in evidence by the accused.
(2) Cross-examination of a Crown witness to specific effect which is contradicted by the later evidence of the accused.
(3) The presence of a discrepancy between the opening of counsel for the accused and the evidence of the accused.
(4) Internal contradictions within the evidence of an accused — for example, between things said in examination-in-chief and cross-examination.
[26]R v Heaney (2009) 22 VR 164 (‘Heaney’).
[27]Ibid 192, [101]. (Emphasis added.)
Ultimately, the Court in Heaney concluded that no miscarriage of justice had resulted from the prosecutor’s cross-examination of the applicant. Where recent invention is alleged, it amounts to an allegation that the witness had lied in his or her evidence. As to that, Ashley JA cautioned that, because it is ‘beguilingly simple to reason from recent invention to want of credibility to rejection of evidence’, such a chain of reasoning is ‘fraught with peril’ and ‘should therefore be used only with much caution and circumspection’.[28] Absent any suggestion that the asserted lies indicate consciousness of guilt, their significance is limited to the witness’s alleged want of credibility.[29]
[28]Ibid 193, [104].
[29]Ibid 193–4, [108].
More recently, in Hofer,[30] the appellant had been convicted of sexual offences against two women, the ‘defence’ being consent. The appellant gave evidence at trial, and, during cross-examination, the prosecutor required him to acknowledge that parts of his evidence which were inconsistent with or contradicted the complainants’ evidence had not been put to the complainants by defence counsel for comment, and also put to him that certain aspects of his evidence were of recent invention. Defence counsel did not object to the suggestions of recent invention, and the trial judge did not direct the jury as to the use which could be made of this evidence. Having referred to the asserted non-observance by defence counsel of the rule in Browne v Dunn[31] — which requires that, where it is intended to contend that the evidence of the witness on a particular matter should not be accepted, that which is to be relied upon to impugn the witness’s testimony should be put to the witness by the cross-examiner for his or her comment or explanation — Kiefel CJ, Keane and Gleeson JJ relevantly observed:[32]
[30]Hofer v The Queen (2021) 274 CLR 351 (‘Hofer’).
[31]Browne v Dunn (1893) 6 R 67, 70–71.
[32]Hofer, 362–4 [30]–[37].
[30]The need for consideration to be given to the course to be taken when the rule is not observed is likely to arise more often in criminal proceedings. …
[31]An obvious course which may be taken is to recall the witness so that the omission can be corrected. This may be preferable and may be undertaken without injustice, depending on the course the trial has taken.[33] But a review of cases decided by the courts in New South Wales[34] shows that the course sometimes taken by the prosecution is to cross-examine the accused as to the omission. The cross examination undertaken is not limited to drawing the attention of the accused to the fact of the omission, so as to highlight the matter for the jury. It extends to the reason for the omission. The evident purpose of the cross-examination is to impugn the credit of the accused by suggesting that the matter is of recent invention. As Gleeson CJ observed in R v Birks,[35] it is one thing for the cross-examiner to point to the unfairness to a witness who has not had the opportunity to comment, it is quite another to suggest that the result of a failure to observe the rule of practice is that a person should not be believed.
[32]The reasoning behind a decision to cross-examine the accused in pursuit of this purpose may readily be inferred. It commences with the fact that a matter is not put by defence counsel; it assumes that the reason for the omission is that counsel was unaware of the matter and that counsel was unaware because the accused had not given an account of it in his or her instructions. The conclusion reached is that the accused must now be making the evidence up.
[33]In R v Manunta,[36] King CJ observed that an examination of an accused person which proceeds by reference to there being but one reason why a matter has not been put to a witness is ‘fraught with peril’. As his Honour there observed, there may be many explanations for the omission which do not reflect upon the credibility of the accused. His Honour gave as examples defence counsel misunderstanding the accused’s instructions or where forensic pressures may have resulted in looseness in the framing of questions. To these may be added the possibility that defence counsel has chosen not to advance certain matters upon which he or she had instructions because they were unlikely to assist the defence.
[34]Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.
[35]Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the cross-examination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave.[37] An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise.
[36]In most cases, the cross-examination will have a dual purpose. It will be concerned with identifying unfairness to a Crown witness as well as seeking to have the accused’s evidence disbelieved. Where it has the sole purpose of impugning the credit of the accused it will be necessary for leave to be sought from the trial judge.[38] The discussion which will inevitably take place on such an application will point up the risks associated with the course proposed.
[37]A trial judge should be alert to the problems associated with cross-examination. They should be raised with counsel at an early point. Where the cross-examination has occurred, it will be necessary or the trial judge to warn the jury about any assumption made by the cross-examiner, to draw attention to the possible reasons why the matter has not been put and to direct the jury as to whether any inferences are available.
[33]MWJ v The Queen (2005) 80 ALJR 329 at 339 [40]; 222 ALR 436 at 448–449.
[34]R v Birks (1990) 19 NSWLR 677; R v Dennis [1999] NSWCCA 23; Picker v The Queen [2002] NSWCCA 78; Llewellyn v The Queen [2011] NSWCCA 66.
[35](1990) 19 NSWLR 677 at 690.
[36](1989) 54 SASR 17 at 23.
[37]See, e.g., R v Birks (1990) 19 NSWLR 677.
[38]Evidence Act 1995 (NSW), s 106.
Abdallah,[39] cited in Heaney and referred to with apparent approval in Hofer,[40] was a case where, on a trial for being knowingly concerned in the importation of a traffickable quantity of cocaine, an inconsistency arose at trial between the evidence of the appellant and an opening statement by his counsel as to when the appellant became aware of the arrival of the relevant package containing the drug. Both the prosecutor and the trial judge suggested to the jury that they might conclude that the appellant had changed his story. The prosecutor opened his cross-examination of the appellant that he had ‘made up the story [he had] just given in evidence’; and the judge commented to the jury that ‘the only witness whose honesty has been called into question is that of the accused himself and in this case, it is perhaps somewhat unusual for a prosecution case or even an accused’s case, that at the end of the day, almost the entire concentration of the submissions that have been made to you have been based upon the accused’s evidence’. Sheller JA (with whom Dowd and Kirby JJ agreed) observed that the prosecution’s ‘challenge to the appellant’s credibility, based on the discrepancy between the appellant’s evidence and the opening statement of his counsel, that is of critical importance’.[41] He said:[42]
Whether the inconsistency arose because counsel for the accused failed to cross-examine the complainant on aspects of the defence case, or because of statements made by counsel in his opening address, the effect is the same. In both situations, a question arises as to whether the conduct of counsel accords with the instructions given by the accused. And in both situations, the discrepancy between what is said or done by counsel for the accused, and the accused himself, may be due to one of several possibilities. The accused may have changed his story since giving instructions to counsel. Counsel may have misunderstood the instructions given to him, or the solicitor may not have correctly conveyed instructions to counsel. Counsel may simply have forgotten a particular part of the instructions, or become confused between the dates of …. The point made in Birks[[43]] and Manunta[[44]] is that in such a situation, it is necessary for the trial judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story.
[39]R v Abdallah (2001) 127 A Crim R 46 (‘Abdallah’).
[40]Hofer, 367 [47] (Kiefel CJ, Keane and Gleeson JJ), 392 [127] (Gordon J).
[41]Ibid 51 [18].
[42]Ibid 52 [24].
[43][R v Birks (1990) 19 NSWLR 677.]
[44][R v Manunta (1989) 54 SASR 17.]
In setting aside the conviction in Abdallah, Sheller JA also observed:[45]
In my view, there is simply inadequate evidence in this case on which to conclude whether the failure to resolve the inconsistency on the part of the appellant’s legal advisors was in fact tactical. However, the directions given by the trial judge were so clearly lacking in the circumspection and caution recommended in Birks and Manunta that the directions resulted in a miscarriage of justice. In summary, there are two aspects of the trial judge’s directions on this matter which indicate that a serious error occurred in this trial. First, the only explanation suggested to the jury for the inconsistency in the appellant’s case was that proffered by the Crown, that the accused ‘could not get his story straight’. Secondly, by emphasising the competence of counsel for the accused, and suggesting that it was unlikely that the mistake was due to him, the trial judge effectively eliminated a possible explanation for the inconsistency, a mistake by [counsel].
[45]Abdallah, 54 [30].
In light of Wright, Quinn, Heaney, Hofer and similar cases, it may be concluded that there will be situations where, should defence counsel’s questioning of witnesses be inconsistent with the accused person’s subsequently given version of events, such inconsistency may found an inference of recent invention on the accused person’s part — the theory being that counsel’s questions evidence his or her instructions — which may in turn be used to attack the accused’s credibility. As Heaney and Hofer make clear, however, such a path of reasoning is fraught with danger; should only be resorted to with great caution and circumspection; and, except in the clearest of cases, where there are clear indications of recent invention, should not be permitted. Indeed, as Ali also makes clear, depending on the particular circumstances of the case, an inconsistency in, or arising from, counsel’s questions will not necessarily have any probative value. Moreover, as Abdallah makes plain, an inconsistency between counsel’s opening to the jury and the accused person’s evidence, will not necessarily be a reflection of the instructions given to counsel, permitting an attack on the accused person’s credit. And where there is an alleged inconsistency between counsel’s opening and the accused person’s evidence, it is necessary for the trial judge to draw the attention of the jury to other possible causes of such an inconsistency. If the judge does not do so, there is a real danger that the jury, lacking relevant knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused person has changed his or her story.
A prosecution opening is of a different species to an opening by an accused person’s counsel (or questions asked by defence counsel). The role of prosecuting counsel is one of institutional significance in the criminal justice system. It differs from that of an advocate representing an accused person in a criminal matter or a party in civil litigation. A prosecutor represents the state.[46] Unlike counsel for the accused, prosecutors do not take ‘instructions’ from a party. Instead, the prosecutor’s opening ordinarily is based on statements, depositions, real evidence and the like. There is therefore no capacity to use an inconsistency between the prosecutor’s opening and the evidence in the prosecution case as demonstrating ‘instructions’, let alone to found an allegation akin to recent invention directed to the prosecution (or a prosecution witness). Hence, the approach taken in those cases in which the questions or an opening by an accused person’s counsel have taken on an evidentiary status because it may be concluded that they reflect the accused’s instructions, are of no assistance in resolving the issues in the instant case.
[46]See, e.g., R v Smith (2007) 179 A Crim R 453, 463–4 [38] (McMurdo P).
As I have indicated, the gravamen of the submissions made by the applicant’s counsel in support of the ground of appeal was that the judge should have taken into account, in a manner adverse to the complainants’ credibility and reliability, their failure to give evidence in accordance with the prosecution opening. No attention was, however, given by the parties to the credibility rule, spelled out in the Evidence Act 2008 (‘EA’).
Evidence concerning credibility is now governed by Part 3.7 of the EA. Hence, s 102 creates the credibility rule:
102 The credibility rule
Credibility evidence about a witness is not admissible.
Section 101A of the Evidence Act 2008 (‘EA’) defines credibility evidence:
101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that—
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b) is relevant—
(i)because it affects the assessment of the credibility of the witness or person; and
(ii)for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
The Dictionary to the EA further provides that: ‘credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence’. Given that the definition embraces matters that go to reliability, it is clear that the EA does not draw a distinction between credibility and reliability.[47]
[47]IMM v The Queen (2016) 257 CLR 300, 315–6 [53] (French CJ, Kiefel, Bell and Keane JJ). See also Dupas v The Queen (2012) 40 VR 182, 255 [265]–[266] (Warren CJ and Maxwell P and Nettle, Redlich and Bongiorno JJA).
Notably, s 101A(a) is restricted to evidence that is relevant only because it affects the assessment of the credibility of a witness or person. Thus, if evidence is relevant under s 55 for some other reason, it will not fall within the definition of credibility evidence.[48]
[48]See also EA, s 55(2)(a).
An exception to the credibility rule is to be found in s 103(1), which provides that the credibility rule ‘does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness’.
In the present case, the attack that defence counsel sought to launch on the credibility and reliability of the complainants was not based on any evidence-in-chief given by LV or CM, or anything adduced in cross-examination. Instead, the attack on the complainants’ credibility and reliability relied on the contention that they had failed to give evidence in accordance with the prosecution opening. Defence counsel had, however, deliberately avoided cross-examining the complainants upon their failure to give evidence in accordance with the opening, and upon any reasons there might have been for that failure. Certainly, there was nothing put directly before the trial judge upon which she could have made any assessment as to why the complainants’ evidence did not accord with the prosecution opening, still less whether the failure of their evidence to accord with the opening might properly impinge upon their credibility and reliability. For these reasons, the credibility rule (with exceptions) in Part 3.7 of the EA was not engaged.
At this point it is convenient to note that, at the time that the applicant’s trial was conducted, s 420ZG of the CPA (since repealed) provided that s 4A of the Jury Directions Act 2015 (‘JDA’) applied to a trial by judge alone. Hence, the trial judge’s ‘reasoning’ was required to be consistent with how a jury would be directed in accordance with the Act; and the judge could not ‘accept, rely on or adopt’ a statement or suggestion that the Act prohibited a trial judge from making, or a direction that the Act prohibited a trial judge from giving.
It should also be noted that s 54D(1) of the JDA sets out directions that the trial judge would have been required to give herself had she considered that there was 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’. In the present case, given that there was no such evidence, s 54D was not animated.
Since the prosecution opening was not evidence, there simply was no occasion to use it — or, more pointedly, the complainants’ claimed departure from it — as a vehicle to impugn the complainants’ credibility and reliability. There was no direct evidence before the judge as to any statement or account by the complainants upon which the charges were based; no evidence as to how any statement or account by the complainants differed from a previous statement or account; and no evidence that would permit the judge to make an informed assessment as to how any claimed departure from a previous statement or account might have impinged on the complainants’ credibility and reliability.
Thus, although one might make informed guesses as to the foundations of the prosecution opening, and as to why the complainants’ evidence did not accord with the opening in the identified respects, the trial judge was correct to hold that she could not ‘speculate about what may have been in a complainant’s statement or earlier evidence for the inclusion of those matters in the Prosecution Opening’, since to do so ‘would elevate the Prosecution Opening to evidence [of] a prior inconsistent statement’. The judge was also correct to observe that she ‘would have no capacity to assess any earlier description, detail, reliability or credibility of any earlier account’.
For these reasons, the ground of appeal concerning conviction must fail.
Before leaving the ground, however, there are three additional matters that I should mention.
First, counsel for the applicant relied on certain observations in Gul[49] to submit that there is no requirement for the defence to have cross-examined a complainant about an alleged inconsistency in order for the trier of fact to be able to use the difference between the way the trial was opened, and the evidence as it was given, to assess the complainant’s credit. In the present case, so it was submitted, defence counsel were ‘hamstrung’ in their ability to cross-examine on these matters, because charges 3, 10, 12 and 22 were not the subject of verdict until after all of the evidence closed. It nevertheless was still open for defence counsel to take advantage of the fact that the complainants did not ‘swear up’ as bearing specifically on their credibility and reliability, and on the strength (or lack thereof) of the prosecution case.
[49]Gul v The Queen [2017] VSCA 153 (‘Gul’).
In my view, nothing in Gul supports these submissions. In Gul, a jury convicted the applicant of indecent assault (charge 3), rape (charge 4) and making a threat to kill (charge 5). The trial judge directed acquittals on a charge of rape (charge 1) and a charge of compelling sexual penetration (charge 2), after the complainant gave evidence — to the apparent surprise of the prosecutor — that she ‘was fine’ with the acts that founded those charges, only later objecting to what the applicant had done. Seeking leave to appeal against conviction, the applicant complained that the trial judge erred by failing to instruct the jury concerning the use to which the evidence on charges 1 and 2 could be put; and in particular, the judge failed to give an ‘anti-propensity warning’, and failed to direct that the evidence on charges 1 and 2 could constitute no more than ‘context’ evidence when considering charges 3, 4 and 5. A further ground complained that the judge failed to discharge the jury once he ruled that there was no case to answer on charges 1 and 2.
Importantly, as may be appreciated, the grounds in Gul do not mirror the ground in the present case. Dealing with the grounds as advanced in Gul, a majority of the Court rejected the contentions that the judge should have given a propensity warning, and should have directed that the evidence on charges 1 and 2 provided no more than context. The majority also rejected the contention that the trial judge should have discharged the jury, observing:[50]
The short answer to this ground is that trial counsel did not seek a discharge of the jury, in circumstances where there were sound forensic reasons for not doing so. Defence counsel may well have wished to take advantage of the fact that the complainant did not ‘swear up’ — the prosecutor had opened on the basis that [the complainant] would give evidence that the acts founding charges 1 and 2 were without her consent — as bearing specifically on [her] reliability and credibility, and on the strength (or lack thereof) of the prosecution. Furthermore, trial counsel may well have reasoned that it was unlikely that he would be able to replicate at a trial limited to charges 3, 4 and 5, the psychological and atmospheric advantage flowing from the jury being directed to return not guilty verdicts on charges 1 and 2 at the same time that they had charges 3, 4 and 5 under consideration. It is impossible to know. But from the perspective of one experienced in criminal advocacy, it is possible to say that the decision not to seek discharge of the jury could be justified.
[50]Ibid [56] (Ashley and Priest JJA).
Nothing in the above passage, however, supports the contention that the prosecution opening has any evidentiary status, or that the failure of a complainant to ‘swear up’ to an opening is akin to evidence of a prior inconsistent statement.
The second matter I should mention is this. Nothing that I have said should be interpreted as preventing defence counsel, in an appropriate case, from criticising the prosecution case on the basis that the case as opened is not the case that the evidence has in fact established. As I have said, the gist of the applicant’s submissions in support of the ground of appeal against conviction was that the failure of the complainants to give evidence in accordance with the prosecutor’s opening could be used to impinge upon their individual credibility and reliability. Although, for the reasons I have discussed, that submission cannot be accepted, there is no reason why, when addressing the jury, defence counsel should be precluded from criticising the prosecution case on the basis that the case as opened is not the case ultimately established by the evidence. Given that the prosecution bears the onus of proving the case against the accused; and that, when opening the case, the prosecutor will inform the jury of the facts which constitute each charged offence, and the manner in which the prosecution intends to prove those facts (including the witnesses intends to call, and what it is expected their evidence will be); it will remain legitimate for counsel to draw the jury’s attention to any variance or inconsistency in the case as opened and the case as it at the close of evidence, in order to argue that the prosecution case is lacking the strength that the prosecution’s opening might initially have led the jury to think it would possess, or is otherwise deficient. Arguments which emphasise an overarching lack of strength in the prosecution case as opened, or which underscore its deficiencies, will not be directed to the credit of individual witnesses (which may in any event be impugned if there is a proper evidentiary basis for doing so).
Thirdly, even were it theoretically legitimate to take into account the complainants’ failure to give evidence in accordance with the prosecution opening as impinging on their credibility and reliability, in the circumstances of this case I could not conclude that there had been any substantial miscarriage of justice. In my view, LV’s failure to give evidence on charge 3 of being tied with the ropes; on charge 10 of there being a second vaginal penetration; and on charge 12 of there being anal penetration; and CM’s failure on charge 22 to give evidence that there was a second oral penetration; could not properly be seen as materially affecting their overall credibility and reliability.
In my view, it was open to the trial judge to find LV to be a generally truthful and reliable witness,[51] and to assess CM as ‘entirely credible’.[52] The errors contended for by the applicant’s counsel — even if established — could have made no difference to those findings or to the judge’s verdicts.[53]
[51]See Reasons, [814]–[827].
[52]Reasons, [1093].
[53]Baini v The Queen, (2012) 246 CLR 469, 479 [26], 481 [31].
The proceedings relating to sentence
As I have said, the applicant seeks leave to appeal against the sentence of imprisonment imposed by the trial judge, and the Director seeks to challenge the length of the reporting obligations imposed on the applicant as part of the sex offender registration order that the judge made.
It is convenient to summarise the sentence and other orders made by the judge in tabular form:
Charge Offence Maximum Sentence Cumulation Charges relating to LV 1 Common assault (throwing phone) 5 years 3 months Nil 4 Rape (penile-anal) 25 years 7 years 6 months 8 Rape (penile-vaginal) 25 years 8 years and 8 months 10 months 9 Rape (penile-anal) 25 years 10 years 1 year and
4 months11 Rape (penile-vaginal) 25 years 8 years 1 year Charges relating to CM 13 Indecent assault (hot wax to vagina) 10 years 3 years 6 months 14 Rape (penile-vaginal) 25 years 9 years 1 year and
2 months15 Rape (penile-vaginal) 25 years 10 years and 6 months 1 year and
8 months16 False imprisonment 10 years 3 years Nil 17 Rape (vaginal ‘fisting’) 25 years 12 years Base 18 Indecent assault (electricity to nipples) 10 years 5 years and 6 months 6 months 19 Indecent assault (electricity to vagina) 10 years 6 years 10 months 20 Indecent assault (slapping face with penis) 10 years 2 years Nil 21 Rape (penile-oral) 25 years 4 years Nil 23 Make threat to kill 10 years 3 years 3 months 24 Rape (penile-vaginal) 25 years 7 years and 3 months 1 year 25 Make threat to kill 10 years 4 years and 8 months 6 months 26 Rape (penile-anal) 25 years 7 years and 8 months 1 year 27 Rape (penile-vaginal) 25 years 10 years 1 year and 3 months Total effective sentence 24 years and 4 months’ imprisonment Non-parole period 17 years and 8 months Other orders · Pursuant to s 6F of the Sentencing Act 1991, the prisoner is sentenced as a serious sexual offender on charges 9, 11, 13, 14, 15, 17, 18, 19, 20, 21, 23, 24, 25, 26 and 27.
· Pursuant to s 11 of the SORA, the prisoner is a registrable offender on charges 4, 8, 9, 11, 13, 14, 15, 17, 18, 19, 20, 21, 22,[54] 24, 26 and 27, and must comply with the applicable reporting obligations. Under s 34 of the SORA, the length of the reporting period is 28 years.
· Forensic sample order.
· Disposal order.
[54]The inclusion of charge 22 here appears to be an error. The trial judge entered a verdict of ‘not guilty’ in respect of this charge: see Reasons, [19].
The application for leave to appeal against sentence
The applicant relies on three overlapping grounds as follows:
1 The individual sentences imposed on charges 9, 17, 18, 19, 25 and 27 are manifestly excessive.
2 The learned trial judge erred in making orders for cumulation which breached the principle of totality.
3 The total sentence and non-parole period are manifestly excessive.
Given their overlapping nature, it is convenient to consider the three grounds together.
The applicant’s submissions
Counsel for the applicant accepted that the offences of rape ‘involved objectively grave criminality’. In the final analysis, however, there were few features of the kind that are typically taken into account in assessing the gravity of a particular offence of rape. The impugned sentences, counsel submitted, do not sit comfortably within current sentencing practices for the offence of rape.[55]
[55]Counsel referred to: Samuels (a pseudonym) v The Queen [2018] VSCA 251; Perryman v The Queen [2019] VSCA 252; DPP v Smith [2019] VSCA 266; Johns (a pseudonym) v The Queen [2016] VSCA 97; Bolton v The Queen [2019] VSCA 21; DPP v Mokhtari [2020] VSCA 161; Matheas v The Queen [2017] VSCA 330; and Forbes (a pseudonym) v The Queen [2018] VSCA 341.
Further, counsel submitted that the sentence of 10 years’ imprisonment on charge 9 is difficult to reconcile with the shorter sentences on charges 4 and 26, where penile-anal penetration was involved. The fact that charges 4 and 26 were particularised as offences of rape by failure to withdraw cannot account per se for the significantly higher sentence imposed on charge 9 — noting that in both cases the penetration continued for a significant period after it became non-consensual, and that both rapes were committed in spite of the complainants’ protests and crying, and caused obvious pain to them (and, in the case of charge 26, bleeding). The judge was aware of such features when she dealt with the submission that much of the offending was to be understood as ‘consensual activity going too far’. In the case of charge 4, the offence was aggravated by the fact that the complainant was restrained. Similarly, the sentence of 10 years’ imprisonment on charge 27 — which, counsel submitted, ‘was comparatively bare of aggravating features’ — ‘is difficult to reconcile with other charges involving penile-vaginal penetration’ (in particular, charges 8, 11, 14 and 15, the last of which involved very serious aggravating features).
Counsel also argued that, in relation to the indecent assaults in charges 18 and 19, although the sentencing judge was entitled to take into account the aggravating effect of the complainant being restrained against her will — in addition to the aggravation flowing from the pain caused by the offences — the sentences of 5 years and 6 months, and 6 years’ imprisonment, are significantly higher than any other recorded on the database kept by the Sentencing Advisory Council. Moreover, the sentence on charge 25, making a threat to kill, is also manifestly excessive. Although the sentencing judge was entitled to take into account that this offence occurred in circumstances where the applicant was choking the complainant, there was an absence of other aggravating features such as planning, the use of weapons, in-company offending or the commission of the offence to further other criminal objectives.
The applicant’s counsel also relied on a range of mitigating features, including: the delay in the finalisation of the proceedings was significant; these were the applicant’s first offences, and, apart from them, there was positive evidence that he had been of good character, and in continuous employment, throughout his adult life; the applicant’s prospects of rehabilitation did not rely on him addressing an entrenched substance addiction, or complex mental illness or disorder; and the applicant’s diagnosed persistent depressive disorder would, as the judge accepted, make his imprisonment more onerous.
With respect to the orders for cumulation, counsel for the applicant submitted that the order for cumulation of the sentence on charge 9; the cumulation as between the sentences on charges 8 and 9; the orders for cumulation between the sentences on charges 18, 19, 25 and 27; and the cumulation of the sentence on charge 15; were all manifestly excessive.
Ultimately, counsel submitted that, having regard to individual sentences that were manifestly excessive, and orders for cumulation that were manifestly excessive, the total effective sentence was manifestly excessive and had to be reduced. As a result, the non-parole period also fell to be reduced.
The respondent’s submissions
Unsurprisingly, the respondent’s counsel gave a deal of attention to the degrading and humiliating nature of much of the offending, and the trauma and pain caused to the victims. It is unnecessary to recapitulate counsel’s submissions. Counsel submitted that, although the prosecution did not seek a disproportionate sentence, the applicant fell to be sentenced under Part 2A of the Sentencing Act 1991 as a serious offender, so that protection of the community was a paramount consideration in sentencing. Further, citing Hili,[56] the respondent’s counsel submitted that the ‘comparable’ cases relied upon by the applicant provided limited assistance. Current sentencing practices are not determinative and do not ‘cap and collar’ the appropriate sentencing range.[57]
[56]Hili v The Queen (2010) 242 CLR 520, 536–7 [53]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[57]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82]–[83] (Gageler and Gordon JJ). See also Stanford v The King [2024] VSCA 35, [77] (Boyce, Whelan and T Forrest JJA).
Counsel for the respondent submitted that the individual sentences and orders for cumulation were within range, and the total effective sentence adequately reflected the applicant’s overall criminality. Considering the serious nature of the offending, the applicant’s moral culpability, and the lack of guilty plea or remorse, it was necessary for the sentence to fulfil the sentencing purposes of general deterrence, specific deterrence, just punishment, protection of the community, and denunciation. The total effective sentence and non-parole period imposed fall within the sound exercise of the judge’s sentencing discretion.
Discussion and analysis
Upon being sentenced to terms of imprisonment on charges 4 and 8, the applicant became a serious offender under Part 2A of the Sentencing Act 1991. As a result, s 6D(a) required the judge to ‘regard the protection of the community from the offender as the principal purpose for which the sentence is imposed’ (albeit that the respondent did not submit that a disproportionate sentence was called for under s 6D(b) of the Act). Each charge of rape carried a maximum sentence of 25 years’ imprisonment; the charges of indecent assault, false imprisonment and making threats to kill carried maximum sentences of 10 years’ imprisonment; and the maximum sentence on the charge of common assault was five years’ imprisonment. The standard sentence scheme did not apply to the applicant’s offending.[58]
[58]The standard sentence scheme only applies to offences committed after 1 February 2018. See Sentencing Act 1991, s 165A(2).
Although the applicant could not rely on the ameliorating influence on sentence of a plea of guilty, up until his conviction for the instant offences he was a person of positive good character with no prior convictions. Moreover, he suffered from a persistent depressive disorder which will make his time in custody more burdensome than for someone without the disorder, and there had been significant delay in finalising the charges. Furthermore, the judge accepted in relation to charges 4, 13 and 14 and 16 to 20, that the sexual offending could be characterised as ‘consensual activity going too far’.
The approach to a complaint that a sentence is manifestly excessive was summarised in Leimonitis:[59]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[60] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[61] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[62] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[63]
[59]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
[60]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[61]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[62]Ibid.
[63]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
Paying due regard to the governing principles, I have concluded that a number of the individual sentences imposed by the judge, and several of the orders for cumulation, are manifestly excessive. I have reached that conclusion generally for the reasons advanced by the applicant’s counsel.
As a starting point, and acknowledging the serious nature of the offence, I am of the view that the sentence of 12 years’ imprisonment on charge 17 (the base sentence, ‘fisting’ charge’) is beyond the range of sentences reasonably open to the judge in the sound exercise of the sentencing discretion. I also consider that the sentence on charge 27 is manifestly excessive, and difficult to reconcile with other individual sentences for rape, particularly when a comparison is made of its individual features with the circumstances of others. Further, and once more making due allowance for the unpleasant features attending charges 8 and 9 (which involved vaginal and anal penetration after medical procedures), I am of the opinion that the sentences imposed are beyond the available range. Similarly, I consider the sentence on charge 15 (penile-vaginal penetration of the pregnant complainant) is beyond the realm of sound discretion, as is the sentence on charge 26. (I would not, however, interfere with the sentence on charge 24, which involved penile-vaginal penetration of the complainant after a caesarean section.)
Apart from the sentences for rape, I consider that the individual sentences for the indecent assaults, charges 18 and 19, are also manifestly excessive. In the course of oral argument, senior counsel for the respondent dwelt on the circumstances of these charges, and emphasised that they were very serious examples of the offence of indecent assault. Accepting the force of those submissions, I nonetheless consider that the sentences imposed fall beyond the appropriate range. Finally, I consider the sentences imposed on charges 23 and 25, making a threat to kill, are also beyond the available range.
Perhaps defence counsel have, hitherto, been afforded a degree of unprincipled latitude. But one thing is certain: strict acceptance of the respondent’s submission in this case may cause a material alteration to the manner in which an accused person has traditionally been permitted to defend themselves at trial; to say nothing of how this Court might in the future seek to reconcile apparent verdict inconsistency.
Like Priest JA,[73] it strikes me that in our accusatorial system of criminal justice — where the accuser bears the onus of proving the case and the accused is entitled simply to put the accuser to proof — that the accused ought, in an appropriate case, be entitled to draw to the tribunal of fact’s attention, and exploit for forensic purposes, a material change or alteration in a prosecution case that is evident from a comparison of the way that this case was opened with the manner in which the case ultimately manifested itself. There will be instances where it will be inappropriate to do so, such as where it is agreed that there has been human error. But it may be, say, that the alteration in a prosecution case possesses the capacity to ground a defence argument of over-zealousness on the part of the prosecution. Perhaps the change will remain unexplained. Even where that is so, the simple fact of an alteration may give the tribunal of fact pause before accepting what remains of the prosecution case.[74]
[73]Priest JA’s reasons expressed at [79] with which I agree.
[74]In this sense, it might be thought that such a change, or alteration, qualifies as the sort of ‘event’ described by Brennan CJ in Bulejcik: see [127] above.
As a matter of objective fact, there was a change in the overall prosecution case alleged against the applicant. That change manifested itself before the tribunal of fact. The prosecutor outlined, by way of opening, what he expected the complainants would say in evidence. He said that he would take the tribunal of fact to ‘the matters the subject of each of the charges, and [to] briefly summarise the evidence I expect that will be given in relation to each of those charges’. The prosecutor ensured that the judge had a copy of the indictment. The prosecutor took the judge through each charge on the indictment and the evidence that he expected he would adduce in respect of each charge. In particular, he described what the first complainant ‘will say’ in respect of charges 3, 10 and 12, and what he ‘expect[ed]’ the second complainant ‘will give evidence of’ insofar as charge 22 was concerned.
But, as is known, by the time the prosecution’s case closed, the overall prosecution case was a different one. The prosecutor no longer alleged that the applicant was guilty of charges 3, 10, 12 and 22.
In this case, in order to appreciate that the prosecution case had altered, the tribunal of fact was required to compare the terms of the prosecution opening with what followed thereafter.
But the applicant in this case wished to go further than simply draw to the attention of the trial judge that the prosecution case had altered or changed. The applicant wanted the trial judge to take into account the difference between the evidence opened by the prosecutor and the evidence ultimately given by the complainants as a matter that could be employed by the tribunal of fact to impugn the complainants’ credit and reliability.
If one were to assume that the present case was a jury trial (rather than a trial before a judge alone), one might posit a lay-juror plucked from their life in the community and selected to sit on the jury at the applicant’s trial. If it be assumed that this juror lacks knowledge of the peculiar responsibilities of lawyers (or prosecutors, in particular), one might then perhaps contend that when such a person was exposed to the prosecutor’s opening address delivered in this case — the contents of which prefigured the leading of certain specific aspects of evidence from certain particular witnesses — it was then open to that juror to infer the possibility, or even perhaps the likelihood, that these witnesses must previously have said, or imparted in some manner, something in the nature of what the prosecutor had prefigured.
But that is surely as high as it goes. I agree with Priest JA that such circumstances might permit the tribunal of fact to make ‘informed guesses’[75] concerning the evidential bases that justified the prosecution opening; but that is all. I agree with Priest JA that there was an insufficient basis to impugn the complainants’ credit and reliability, particularly in circumstances where the notional inconsistency was not put to the witness concerned.[76]
[75]Priest JA’s reasons, [72]. Even the trial judge, in her ruling, said that she had ‘no knowledge of what was in the complainant’s statement or evidence at Committal or both, or in other evidence, which led to the Charge being laid or to how the facts founding it were described in the Opening’.
[76]Priest JA’s reasons, [71]–[72].
The applicant’s case before the trial judge was predicated upon a desire to impugn the complainants’ credibility and reliability. The trial judge ruled against the applicant. The trial judge was correct to rule as she did.
Nevertheless, even if the judge erred by failing to bring the discrepancy between the prosecution case and the evidence actually adduced to bear upon the complainants’ credit and reliability, I agree with both Priest JA and Kaye JA, for the reasons their Honours give, that such error could have made no difference to the result of the applicant’s trial and did not produce a substantial miscarriage of justice.
KAYE JA:
For the reasons that follow, I agree that the application for leave to appeal against conviction should be allowed, but that the appeal should be dismissed.
Further, for the reasons given by Priest JA, I agree that the application for leave to appeal against sentence should be allowed, the sentences imposed by the judge be set aside, and the applicant be resentenced in the manner set out in his Honour’s reasons. I also agree, for the reasons given by Priest JA, that the sentencing judge did not have power to fix a reporting period less than the remainder of the applicant’s life. Accordingly, the Court should set aside the orders made by the judge under the Sex Offenders Registration Act, and order that the applicant is a registrable offender on charges 4, 8, 9, 11, 13, 14, 15, 17, 18, 19, 20, 21, 24, 26 and 27, and that he must comply with reporting obligations of the Act.
I turn, then, to the proposed ground of appeal against conviction.
In considering that ground, the starting point is that the prosecution opening, and the contents of the opening, are not evidence in the trial. Nevertheless, the prosecution opening does have a significant status in the trial process.
The principles that apply to a prosecution opening, and the relevant provisions of the Criminal Procedure Act 2009 (‘the Act’),[77] provide, essentially, that the opening constitutes an outline by the prosecution of the case, which it intends to make against the accused person, and a summary of the evidence that it proposes to call in support of that case. In particular, s 182(2)(b) of the Act requires that the summary of prosecution opening, served on the defence, must outline the ‘acts, facts, matters and circumstances’ relied on by the prosecution in support of a finding of guilt. Necessarily, those acts, facts, matters and circumstances must be based on evidence which the prosecution intends to adduce at the trial. Section 224(2) of the Act provides that, save in exceptional circumstances, the prosecutor, in giving an opening address at the trial, is confined to the matters set out in the summary of the opening.
[77]Criminal Procedure Act 2009, ss 182(2), 224.
In presenting an opening in a criminal trial, the prosecutor necessarily performs an important role in the trial[78]. In accordance with the principles that apply to opening addresses, and which are of particular point in their application to the prosecution, it is necessary that the prosecutor have an appropriate basis upon which to outline to the court the content of the evidence that is intended to be called in support of the prosecution case. In a case such as the present case, in which the alleged sexual offences were committed in private, necessarily, the opening presented by the prosecution must constitute, essentially, a summary by the prosecutor of the evidence of the complainant, which the prosecutor expects and intends to adduce.
[78]Cf Tran v The Queen (2000) 105 FCR 182, 202 (Black CJ, Weinberg and Kenny JJ).
As the content of the opening does not constitute, or form part of, the evidence in the trial, any difference between the summary of the evidence, provided by the prosecutor in the opening, and the evidence of the witness called in support of the prosecution case, cannot be used, without more, as constituting a previous inconsistent statement. Nevertheless, in view of the established basis upon which the prosecution opens its case in a criminal trial, appellate courts have recognised that juries may take into account any material difference between the content of the evidence of a witness as opened to the jury, and the evidence actually given by that witness in the trial. Accordingly, it has been recognised that differing verdicts of a jury on separate charges, which might otherwise appear, on the evidence adduced in the trial, to be inconsistent, may be adequately explained by reason of a material discrepancy between the evidence adduced on the charge on which an accused person was acquitted, and the content of the prosecution opening in respect of that charge.
In John Ashley v The Queen,[79] a case in which it was contended that the different verdicts of the jury were inconsistent, this Court rationalised the contended inconsistency on a number of bases, one of which was that the evidence of the complainant differed materially from the prosecution opening. The Court stated:
With regard to charge 5, there are several plausible explanations as to how the jury may have concluded that there should be a verdict of acquittal, while at the same time convicting of other, similar, charges.
First, as the Crown correctly submitted, the case as opened to the jury attributed to the complainant a very specific, and detailed, description of the applicant having adopted the Tahai or Trinity personas when he committed the offence specified in charge 5. Yet, when she was asked whether there was anything about what he was doing which indicated that some other persona or spiritual friend might be present at that time, she said that she could not remember. Contrary to the applicant’s submission, we consider that it is entirely possible that one or more jurors picked up that discrepancy, and regarded it as casting some doubt upon the reliability of the complainant’s account as regards this particular charge.[80]
[79][2016] VSCA 246.
[80]Ibid [65]–[66] (Redlich, Weinberg and Hanson JJA); see also Gul v The Queen [2017] VSCA 153, [56] (Ashley and Priest JJA), [196] (Croucher AJA); R v DAL [2005] QCA 281, [21] (McPherson JA).
Similarly, in some cases, differing verdicts have been considered to be explicable on the basis of amendments that were made to the indictment in the course of the trial, arising from the nature of the evidence, given by the complainant, in respect of the particular charge or charges in question.[81]
[81]MA v R [2022] NSWCCA 61 [56] (McFarlane JA); Hogan v R [2019] NSWCCA 125 [51] (Simpson AJA) (‘Hogan’).
In Hogan, the appellant was charged with four child sexual assault offences. At the conclusion of the prosecution case, the judge directed a verdict of not guilty on count 4. After the summing up, the jury returned verdicts on counts 1 and 3, and not guilty on count 2. The appellant appealed against the verdicts on the ground that they were unsafe. In support of that ground, it was submitted that there was an inconsistency between the acquittal of the appellant on count 2, and his conviction on counts 1 and 3. Simpson AJA (with whom Johnson and N. Adams JJ agreed), in rejecting that submission, stated:
The acquittal on Count 2 could be explained. That was the count that was the subject of amendment which expanded the range of dates during which the offence was alleged to have been committed. That alone is, in my opinion, sufficient for the jury to have questioned the accuracy of the complainant’s evidence of that incident. It did not, however, impinge upon the other two counts.[82]
[82]Ibid [51].
In a different context, but based on similar considerations, it is recognised that, although questions that are put by counsel in cross-examination are not evidence of any fact asserted in such questions, nevertheless, in an appropriate case, a jury may, in evaluating evidence given by, or on behalf of, a party to a proceeding, have regard to a material significant discrepancy between questions put by that party’s counsel in cross-examination, and evidence given by the party (or some other witness) from whom the instructions for such questions must be taken to have originated.[83]
[83]See, for example, R v Robinson [1977] Qd R 387, 393–4 (Dunn J, with whom Wanstall ACJ and Douglas J agreed); R v Sargent (2001) 80 SASR 184, 190 [23] (Olsson J, with whom Perry and Gray JJ agreed); R v Clark (2001) 123 A Crim R 506, 545 [62] (Heydon JA, Dowd and Bell JJ); R v Ali (No 2) (2005) 13 VR 257, 263 [21] (Charles JA); R v Baring &Anor (2005) 92 SASR117,130–1[69]–[70] (Sulan J, with whom Doyle CJ and Perry J agreed).
In the context of the present case, it is relevant to note that it has long been an accepted practice in criminal trials for defence counsel, in final address, to rely on a material difference between the prosecution opening and the evidence of a prosecution witness, including in cases in which that discrepancy has not been put to the witness in cross-examination. That practice has been based on the recognition by the courts that it is appropriate for a jury to take into account a material inconsistency between a witness’ evidence and the content of the prosecution opening.
In the present case, which involved trial by judge alone, the trial judge was, essentially, both the judge of the facts and the judge of the law. In her capacity as the judge of the facts, in reaching her decision, the reasoning by the judge was required to be in conformity with that which a jury might permissibly undertake consistent with appropriate directions by the trial judge.[84] As such, the judge was entitled to have regard to the same factors and considerations, which a jury would be entitled to take into account in considering its verdict in a trial. It follows that, as in the case of a trial by jury, the judge was entitled to take into account any material difference between the prosecution opening and the evidence adduced in the trial.
[84]Cf Criminal Procedure Act 2009, ss 420F(2), 420ZG; Jury Directions Act 2015, s 4A(2).
For those reasons, it was open to the judge to take into account the differences between the prosecution opening, and the evidence adduced in the trial. Specifically, it was open to the judge to take into account the content of the prosecution opening in respect of charges 3, 10, 12 and 22, and the circumstance that, in their evidence, the complainants did not give evidence that supported those four charges.
In reaching that conclusion, it must be understood that that particular consideration, that was open to the judge — namely, the discrepancy between the prosecution opening and the evidence of the respective complainants — was a different, and, one might consider, necessarily less cogent, consideration in assessing the evidence given by the two complainants, than would be the case if either of the witnesses had made a previous statement that was inconsistent with the content of their evidence. Nevertheless, and contrary to the ruling of the judge, it was open to her Honour to take into account the difference between the content of the prosecution opening on the four charges in question, and the circumstance that the respective complainants did not give evidence concerning those charges.
In the present case, however, in view of the nature of the evidence adduced in the trial, it could not be maintained that the decision of the judge, not to take that factor into account, could have had any logical effect on her Honour’s decision in respect of the charges on which the applicant was convicted. In other words, if the judge did err in declining to take into account the discrepancy between the content of the prosecution opening in respect of charges 3,10,12 and 22, and the lack of any evidence given by the complainant in respect of those charges, that consideration could not have resulted in a substantial miscarriage of justice.
The starting point is that the judge, having listened to and given careful consideration to the evidence, made positive findings in favour of the general credibility and reliability of both LV and CM as witnesses.
In respect of LV, the judge noted that she had a good memory for events, and that she was truthful in her evidence. The judge specifically accepted LV’s evidence as to the nature of the relationship between herself and the applicant, and, in particular, that the applicant was verbally aggressive and demeaning to her, he was sexually aggressive and demanding, and he would react in a petulant manner if his sexual demands were not met.[85] The fact that CM gave a similar description of the applicant’s behaviour supported that conclusion, which, in turn, enhanced the credibility of each of the two women.[86]
[85]Reasons, [821].
[86]Ibid [827].
Similarly, the judge considered that CM was ‘entirely credible’ as a witness, and that she had a good memory for the sequence of events.[87]
[87]Ibid [1093]–[1094].
Pausing there, it is difficult to comprehend how those assessments of the credibility and reliability of each of the two complainants could have been qualified or affected by the difference between the prosecution opening in the case and the evidence given by them in respect of the charges in question.
I turn, then, to consider the effect of the charges on which the judge found that the applicant had no case to answer, because the complainant in question had not given evidence in support of that particular charge.
In her evidence in support of charges 2 and 3, the complainant described how the applicant tied her to the hook that was inserted into her anus, and said that she was lying on her side for quite a while, ‘wondering whether he was going to come and untie me’. She said that she did not have any freedom of movement, because the rope had been tied around her neck and tied up into the hook that went into her anus. She further said that once the applicant untied her, she could then remove the ball. The prosecutor had opened the case on the basis that LV had begged to be untied, but the applicant left the room. LV did not give evidence in support of that matter, which was the basis of charge 3. Subsequently, and for other reasons, the judge also acquitted the applicant on charge 2. In those circumstances, it could not be maintained that the difference between the prosecution opening, and the fact that the applicant did not give evidence that supported the opening in respect of charge 3, could have, in any logical way, affected an understanding or assessment of the credibility and reliability of the applicant as a witness in the case generally.
Charges 8, 9 and 10 concerned the incident that took place in the evening after the complainant had undergone a colonoscopy and gastroscopy. The prosecutor opened the case on the basis that charge 8 involved an allegation of penetration of the vagina with the penis without consent, that charge 9 involved penetration of the anus with the penis, and that the applicant ‘then again penetrated’ the complainant’s vagina with his penis until he had finished (charge 10).
In evidence, the complainant, LV, stated that the incident occurred on the night after she had had a colonoscopy and gastroscopy under general anaesthetic. She said that the applicant started to have sex with her, putting her on all fours, and penetrating her vagina from behind. She said that he then spat on her anus and started having anal sex with her. When the prosecutor asked LV to clarify the matter, she again explained that the applicant entered her vagina first, he spat on her anus, put his penis in her anus and started to have sex. She then said that, ‘… I don’t remember where he came, whether he went back into my vagina or not. I was really upset. I remember crying and making sure he could see me cry’. She said that, at that time, she was feeling physically ill and in a state of shock, that she was feeling ‘very groggy’, and suffering the effects of having the colonoscopy done.
In that state of the evidence, the judge found that there was no case to answer on charge 10 (the second vaginal rape). In view of the evidence, given by LV as to her mental state at the time, and how she was feeling, it could not be maintained that her uncertainty, whether the second vaginal rape occurred, could logically have affected an assessment of the credibility and reliability of her evidence concerning the offences that constituted charges 8 and 9.
The circumstances that constituted charges 11 and 12 occurred on the following evening, after LV had been accompanied by her brother and his fiancée to the night market at Queen Victoria Market. The prosecutor opened the case on the basis that charge 11 constituted rape by the introduction of the applicant’s penis into LV’s vagina, and that charge 12 concerned the introduction of the applicant’s penis into her anus. In evidence, LV said that the applicant got into bed, and told her that he needed to have sex. She responded that she did not want to do that. The applicant insisted, and he laid her on her stomach, and removed her pyjama pants. She said that he then had vaginal sex with her (charge 11), finished, and ‘rolled over’. The complainant did not give any description of anal rape that was the basis of charge 12. Accordingly, the judge upheld the no case submission in respect of that charge.
In her reasons in determining charge 11, the judge considered that the evidence, given by LV, which was supported by her mother, was that the events that were the subject of charge 11 occurred in circumstances in which the applicant was angry with her. The judge was satisfied, beyond reasonable doubt, that the applicant had sex with LV, that she told him that she did not want to have sex, and that she was crying. The judge was further satisfied that the applicant did nothing to ascertain whether LV was consenting, and, indeed, that he ignored what must have been obvious to him. The judge was satisfied, beyond reasonable doubt, that the applicant was aware that the complainant was not consenting to the sexual penetration, and, accordingly, the judge was satisfied, beyond reasonable doubt, of each of the constituent elements of the charge. In that respect, the judge noted that the conduct of the applicant after sexual penetration occurred — loudly slapping the bedside table in anger — was confirmed by LV’s mother in her evidence.[88]
[88]Ibid [1059]–[1086].
In those circumstances, the fact that the complainant did not give evidence of any anal rape (that was the subject of charge 12) could not have been of any moment, in the consideration of the judge, if her Honour had, in fact, taken that circumstance into account. In evidence-in-chief, when questioned by the prosecutor, LV, when asked whether there was any other sexual activity after the penetration of the vagina, said, ‘It was just straight sex, vaginal sex’. The circumstance that the complainant did not, at that point, refer to the anal sex that was the subject of charge 12, could not have undermined her evidence in respect of charge 11. Rather, if it was of any relevance, it could only have reinforced her credibility as a truthful witness.
CM was the complainant in respect of charges 21 and 22. The prosecutor, in opening those charges, stated that the events occurred when the complainant was seated on the toilet. The applicant entered the room, took her phone from her, and made a comment about her being at the right height. The prosecutor told the judge that the complainant then protested and threatened to bite him, and he proceeded to put his penis in her mouth (charge 21, rape). The complainant responded by biting him. He pulled away, was angry, dug his fingers into the roots of her hair, forced her head forward, and again put his penis into her mouth (charge 22, rape).
In evidence, CM stated that, after the applicant entered the toilet, she told him that she was defecating at the time, and that the applicant responded by saying, ‘I’ve got to take my opportunities when they arise’, and then proceeded to put his penis in her mouth. The complainant said that she then bit the applicant, so that the applicant pulled his penis out, and called her a name. She then said, ‘That was pretty much it from my recollection’.
The description, given by the complainant, of the conduct of the applicant that was the subject of charge 21, was consistent with the prosecution opening. In that respect, the judge found that the applicant’s comment, about taking his opportunities when they arose, was consistent with her findings that he was a man with a voracious sexual appetite and who was sexually demanding, and that that evidence accorded with what both LV and CM described as the applicant’s frustration about the lack of sexual activity after the birth of a baby.[89]
[89]Ibid [1237].
In those circumstances, the fact that the complainant did not depose to a second piece of conduct involving insertion of the applicant’s penis into her mouth, that was the subject of charge 22, could not logically have affected the judge’s consideration of the evidence, given by the complainant, about charge 21. That is, if the judge had taken the absence of such evidence into account, it could not be conceived that that consideration could, in any way, have affected her Honour’s assessment of the complainant’s evidence that her Honour accepted, and that was the subject of charge 21.
For those reasons, to the extent that the judge might have erred in considering that it was impermissible to take into account the differences between the prosecution opening and the evidence, given by the complainants, in respect of the charges on which the judge upheld a no case submission (charges 3, 10, 12 and 22), the decision by the judge not to take that consideration into account could not have resulted in any substantial miscarriage of justice.
Accordingly, the application for leave to appeal against conviction should be allowed, but the appeal should be dismissed.
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