Chin Chen Li (a pseudonym)[1] v The Queen
[2020] VSCA 168
•23 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0267
| CHIN CHEN LI (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | NIALL, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 June 2020 |
| DATE OF JUDGMENT: | 23 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 168 |
| JUDGMENT APPEALED FROM: | DPP v Li (Unreported, County Court of Victoria, Judge McInerney, 9 November 2018) |
---
CRIMINAL LAW – Appeal – Conviction – Rape – Whether conviction unsafe and unsatisfactory – Whether substantial miscarriage of justice – Fresh evidence – No significant possibility that production of now available document in evidence would result in acquittal – Open to the jury to accept complainant’s account as credible and reliable – Fresh evidence did not amount to substantial miscarriage of justice – Leave to appeal refused – M v The Queen (1994) 181 CLR 478, R v AHK [2001] VSCA 220 referred to.
---
| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr C Mandy SC with Ms S Locke | David Barrese & Associates |
| For the Respondent | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
T FORREST JA
WEINBERG JA:
Introduction
On 5 September 2018, the applicant was convicted, after a trial in the County Court at Melbourne, of one count of rape. He was sentenced to five years’ imprisonment with a non-parole period of three years. A total of 65 days of presentence detention was declared to be taken into account.
The applicant and his wife had been married for approximately 28 years as at 9 November 2016, the day of the alleged rape. Their son, then aged 11, was present in the family home when the offending occurred.
The applicant sought leave to appeal against conviction on the following three grounds:
1. The conviction is unsafe and unsatisfactory in that no reasonable jury could have been satisfied of the complainant’s account beyond reasonable doubt.
2. The trial miscarried as a result of the admission of context evidence where the probative value of the evidence was outweighed by the danger of unfair prejudice.
3. There has been a miscarriage of justice in that there is a significant possibility that a jury acting reasonably would have acquitted the applicant if a document, unavailable to the applicant at his trial, had been produced in evidence.
We shall not address ground 2, which was abandoned at the oral hearing of this application. We shall summarise the evidence relevant to the two surviving appeal grounds.
The complainant’s evidence at trial
The complainant said that she married the applicant in April 1998. They are now divorced. The family came to Australia from China in 2008. In 2016, the family lived in a house in Sandringham with their son. The marriage was in trouble by 2016 and in October of that year, the applicant found two pieces of paper in the house, each written by the complainant’s father who, amongst other things, predicted marital fortunes. One fortune was for the complainant; the other appeared to be for another person — a 54 year old male who was not the applicant.
The applicant confronted the complainant with his suspicions. These were heightened after he had examined the complainant’s phone and found that she was chatting with other men on a messaging mobile application. On 19 October 2016, after an argument, the applicant turned off the water and electricity at the house.
On 9 November 2016, the complainant picked up some tatami mats that she had purchased and took them home. On that day, the applicant had bought her a new mobile phone, which he ‘forced’ her to use. The complainant stated that she was threatened by the applicant that if she did not use the phone, he would divorce her. An argument ensued and the applicant cut up the tatami mats with a knife he had retrieved from the kitchen. He threw her cosmetic jars to the floor of the ensuite bathroom. The applicant was talking non-stop, insisting that she use the new mobile phone.
The complainant had tucked her old mobile phone into the back of her yoga pants, at waist level. The applicant tried to take this phone but was unsuccessful. Both were, by this stage, on the double bed in the master bedroom. The applicant rolled onto the complainant. He pinned her underneath him with his left arm, and used his right hand to pull her pants and underwear down. He took her pants off at the left leg and her pants at the right leg were pulled down to the knee. The complainant tried to push him away and said, ‘I don’t want this, go away.’ The applicant said words to the effect of ‘you are my wife, this is your responsibility’ and ‘I am your husband, this is my right’. The applicant used his right hand to unzip his pants and inserted his penis into the complainant’s vagina. He continued to have sex for two or three minutes and then ejaculated. He then said, ‘It tastes good, no wonder so many men like you.’ The complainant ran out of the bedroom.
The complainant ran next door where she tried to rouse an elderly neighbour, but to no apparent effect. She then went to the police station in Sandringham. She said to a police officer, ‘Something happened. I need help.’ She stated to the court that she told the police officer roughly what had happened. A phone interpreter was called and a friend came to the police station to assist with interpretation. She declined the offer of a medical examination because she ‘[did not] want to go to the hospital’. She also declined to make a statement at that stage but subsequently made one over a number of days.
The following day, 10 November 2016, she consulted with a family lawyer. She was advised to withdraw money from the applicant’s personal bank account, over which she had a power of attorney. On that day, she withdrew $1.09 million in two tranches.
In cross-examination, the complainant denied having gone to see her father, in China, along with another man, in order to have their marital compatibility foretold. She did not know how the piece of paper, which contained her own marital fortune, had become attached to a similar document concerning another man. The applicant confronted her about these documents, and this led to an argument. It was put to her that the only reason why the applicant had ever previously turned off the electricity and water was to effect household repairs. She denied that this was so. She also denied having kept her old mobile phone password private. She agreed, however, that the applicant had asked her to delete WeChat[2] exchanges between another man and herself, and accepted that she had done so.
[2] A messaging mobile application.
The complainant denied having had consensual intercourse with the applicant on the morning of 9 November 2016. She said that she drove her son to school, and had then collected the tatami mats. She arrived home at 5:00 pm. She then recounted the impugned act of intercourse in broadly similar terms to what she had said in her evidence-in-chief. It was put to her that she had consented to intercourse with her husband, and she denied that this was so. She also denied that the applicant had said to her ‘you must use [the new mobile phone] or I will divorce you.’ Finally, she denied that the tatami mats had been cut, and the cosmetic jars had been thrown to the bathroom floor only after intercourse, and not before.
Amongst other matters, the following allegations were put to the complainant, and denied by her:
·She lied about being raped. In fact, the intercourse was consensual.
·She had arranged to be home with the applicant on the afternoon of the alleged rape but did not in fact return home until around 5:00 pm. During that afternoon, she had had intercourse with another man.
·She refused to undergo the medical examination out of fear that the fact that she had had sex with another man would be discovered.
·After intercourse with the applicant, he asked her if she had been out with another man, referring to her absence in the afternoon. Later, he said, ‘You definitely cheated on me this afternoon.’
·This conversation was directly followed by the applicant slashing the tatami mats. The complainant, in addition to denying this, stated that the slashing had occurred much earlier.
·In the bathroom (after the alleged act of consensual intercourse), the applicant said, ‘You cheated on me, we’re done, because it’s your fault we get divorced. You will not get any money from me.’
In further cross-examination, the complainant stated that her underwear had been ‘newly bought’. She did not know if it had been touched by any other person, apart from the applicant. She said that she spoke to the police about divorcing the applicant, and she was advised to see a solicitor. She saw a solicitor on 10 November 2016 and effected the two withdrawals of $1.09 million whilst at the solicitor’s office.
In re-examination, the complainant stated that she brought the fortune paper back from China and kept it in the main drawer of the master bedroom. She stated that she changed the password of her mobile phone after the applicant secretly checked her phone.
Other evidence in the prosecution case
The statement of the elderly neighbour was read to the jury. Relevantly, she stated that one evening at around 10:45 pm, her intercom gate bell rang. She tried to answer it but the conversation was garbled. She saw a person at the door who produced a ‘tablet’ and shortly after, her phone rang. She could not hear anything.
Leading Senior Constable Matthew Thomason was outside the front of Bayside Police Station on the night of 9 November 2016. He observed the complainant running up the street towards him, out of breath and extremely upset. She wished to speak to a family violence officer. She said something along the lines of ‘he wanted to make sex with me but I didn’t want to, so he forced me to make sex with him.’ Later, in the presence of Officer Thomason and an interpreter, the complainant described the argument with the applicant over the mobile phone, the cutting of the tatami mats and said, ‘He wants to make sex with me. He’s very strong and I can’t stop him.’ There were no signs of injury and she made no complaint of having been physically harmed. There was no visible damage to her clothing. Officer Thomason attended with the complainant at her house at around
3:00 am. The applicant arrived at the door, and was spoken to by police. He was behaving calmly, and acting rationally. After some discussion, he packed a bag and left the house.
Ece Eken was a forensic officer within the Biological Sciences Group at Victoria Police Forensic Services Department. She possessed, amongst other qualifications, a Bachelor of Science (First Class Honours) from La Trobe University. Her expertise in interpretation of genetic DNA profiles and the statistical evaluation of those profiles was unchallenged. DNA analysis was performed on the complainant’s underwear. Semen was detected in several regions of the underwear. The applicant’s DNA was very likely (100 billion likelihood ratio) to be a contributor, as was the complainant’s DNA. There were also two other DNA minority contributors whose DNA could have ended up on the underwear by transference, or as direct contributors to the semen sample.
Leading Senior Detective Bronwyn Langford stated that she was attached to the Knox Sexual Offices Unit. She met the complainant just after midnight on
10 November 2016. She stated that the complainant told her (inter alia), ‘ … [he] wanted sex with me … I was sad, didn’t want to. I couldn’t stop him … [he] make me on bed. Please let me go. He talk, talk. He wanted sex, took my pants off … on the left, the right to the knee. Still wearing top and cardigan. He made sex with me … [he] was on top of me … put it in my vagina … in, out, in, out …’ The complainant declined the offer of a medical examination after it was explained to her. Detective Langford was present when the complainant and other police went back to the house and took photographs. In cross-examination, she said she was satisfied that the complainant understood the offer or request for a medical examination, and that the complainant brought up the topic of divorce. The witness told the complainant to see a solicitor.
Detective Senior Constable Alice Kloester stated that she was the informant. She spoke to the complainant about undergoing a forensic medical examination and providing a statement. The complainant declined the medical examination but ultimately agreed to make a statement. She conveyed the complainant’s clothing for DNA testing. In cross-examination, she accepted that the applicant had no prior criminal history.
The applicant’s evidence at trial
The applicant gave evidence at trial and denied the allegation of rape. He maintained this denial under cross-examination by the prosecutor.
In examination-in-chief, the applicant gave evidence that in the lead up to
9 November 2016, he and the complainant both slept together in the master bedroom upstairs. He acknowledged, however, that occasionally, one of them would sleep in the spare bedroom downstairs. Their son slept downstairs. The applicant divided his time between Australia and China, as he had a business in that country.
The applicant denied having ever previously turned off the electricity and/or water at the house after arguing with the complainant. He insisted that he had only done so previously in order to effect household repairs.
On 4 October 2016, he said that he found two pieces of folded paper (the martial fortunes) in the master bedroom which he thought indicated that the complainant was having an affair. When he confronted the complainant about these pieces of paper, she denied having an affair.
On 9 November 2016, the applicant gave evidence that he and the complainant had consensual sexual intercourse in the morning, after which he admitted to her that he had suspicions that she was having an affair with another man. She said she would have tea with him in the afternoon. He then took his son to school and returned home. The complainant was not in the house. He purchased two new mobile phones that afternoon, one for himself and the other for the complainant. The complainant came home at around 5:00 pm with their son, and brought with her some new tatami mats. These mats were placed in the master bedroom. The applicant gave the complainant her new mobile phone and explained that it was a gift because he was going to China for a few days. She thanked him for the mobile phone and placed it on the bedside table in the master bedroom.
The applicant said that he and the complainant ate dinner, and he went to sleep in the master bedroom at around 6:30 pm. The complainant entered the master bedroom at around 9:00 pm. The applicant asked her if she wanted to have sex again, to which she replied, ‘Hurry up, [their son] is still awake. I’m going downstairs to check on him.’ She took off her pants and underwear, and he undressed as well. She kept her top on and crossed her arms in front of her chest. He positioned himself between her legs, and they had intercourse for around three minutes, before he ejaculated.
The applicant said that afterwards, he asked the complainant if another man had called her that afternoon because she had not returned home in time for tea. He asked to see her mobile phone. She put the mobile phone against her body and covered it with her top. The applicant approached her and unsuccessfully tried to retrieve her mobile phone from under her top by reaching around her body. He accused the complainant of having an affair and became angry. He took a knife from the kitchen and cut up the tatami mats. He then went into the bathroom. The complainant followed him into the bathroom and they had another argument. He said to her, ‘… you cheated on me so we cannot be together anymore and because it was you who cheated on me, you are not going to get any money from me.’ In his efforts to avoid her while they were both in the bathroom, some of her glass jars of cosmetics fell to the floor and broke. He went back to the master bedroom. Soon after, he heard the front door and main gate close as the complainant left the house. He tried calling her many times, and drove around for 15 minutes to try and find her. He returned home and cleaned up the slashed tatami mats. He later left the house again on foot in search for the complainant. At around 2:30 am, police attended the house.
In cross-examination, the applicant denied:
·having turned off the electricity or water when he was angry with the complainant;
·having demanded to see the complainant’s mobile phone prior to 9 November 2016;
·having slept in separate bedrooms; and
·having purchased a new mobile phone for the complainant, in order to control who she contacted.
The applicant also said, in cross-examination, that, on 9 November 2016, he was not concerned that the complainant was having an affair. After having had intercourse that evening — which he maintained was consensual — the applicant said that he had asked, ‘in a friendly tone’, whether the complainant had been with another man that afternoon. He denied having been angry with the complainant that day; and claimed that he only became angry when she refused to give him her mobile phone. He admitted that he cut up the tatami mats, but denied having deliberately smashed the jars of cosmetics while in the bathroom. He admitted, however, that he had tidied up the tatami mats, and the broken glass from the smashed jars, prior to the arrival of the police at the house.
Ground 1 — Unsafe and unsatisfactory verdict
Ground 1 contends, in effect, that the conviction is unsafe or unsatisfactory. Section 276(1)(a) of the Criminal Procedure Act 2009 provides that this Court must allow an appeal against conviction if the jury’s verdict is ‘unreasonable or cannot be supported having regard to the evidence’. The test to be applied under that statutory limb was formulated by Mason CJ, Deane, Dawson and Toohey JJ in
M v The Queen.[3] The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.[4] The question to be asked is whether the Court ‘thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[5] In Libke v The Queen,[6] Hayne J, on this question, phrased the test alternatively as ‘whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[7] However, the test remains as stated in M.
[3](1994) 181 CLR 478 (‘M’). See also Pell v The Queen [2020] HCA 12, [43]–[44], where the High Court made it clear that this is still the test to be applied when considering this ground of appeal.
[4]Ibid 492–4; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66].
[5]M (1994) 181 CLR 478, 493.
[6](2007) 230 CLR 559.
[7]Ibid 596–7 [113] (emphasis in original).
Ground 1 was argued on a very narrow basis. The applicant contended that the complainant’s account of the physical act of intercourse was either physically impossible or, at the least, so highly improbable as to compel a reasonable doubt.
We have set out the complainant’s account of the actual mechanics of the act of intercourse at paragraph 8 of these reasons. The applicant’s account of what took place was, of course, very different, and is set out at paragraph 26.
Senior counsel for the applicant frankly accepted that this ground was not amenable to much elucidation. Our rejection of it can be similarly pithy. There is nothing in the mechanics of the impugned act, as described, that renders it impossible, or even highly improbable. The complainant stated that she was held down by the applicant’s left arm, while he pulled her pants and underwear down, using his right hand. He then unzipped his trousers, and penetrated her.
This ‘impossibility/high improbability’ argument was put to the jury by senior counsel in his final address at trial. The jury rejected it. We consider that they were entitled to do so. In our view, there was nothing in the complainant’s account that compelled the jury to have a reasonable doubt about the applicant’s guilt. From a physical perspective, it was, we consider, unremarkable.
The jury were also entitled, in evaluating the complainant’s account, to consider the evidence of the elderly neighbour[8] and those police who spoke to the complainant shortly after the event.[9]
[8]See paragraph 16 of these reasons.
[9]See paragraphs 17, 19 and 20 of these reasons.
We have considered all of the evidence that was before the jury. We have made our own independent assessment of that evidence, though giving full weight to the jury’s advantage in having seen and heard the witnesses who gave that evidence.[10] In our view, it was well open to the jury to accept, as credible and reliable, the account given by the complainant. We, ourselves, do not entertain a doubt as to the applicant’s guilt.
[10]With the exception of the elderly neighbour whose statement was read to the jury.
This ground must be rejected.
Ground 3 — Fresh evidence
Under ground 3, the applicant submitted that there was available fresh evidence which, had it been led at the trial, would have likely resulted in his acquittal. The evidence upon which this ground is based is a document, properly described as a ‘power of attorney’ signed by the complainant, which purportedly authorises Zheng Tongtao, a lawyer with a Chinese law firm, to act on her behalf in a ‘divorce dispute’ between the complainant and the applicant. The document is dated 2 November 2016, one week before the alleged rape is said to have occurred. The original power of attorney is in Chinese, and a certified translation is part of the proposed tender.
The settled test for the receipt of fresh evidence on appeal was set out by Winneke P in R v AHK:[11]
The fundamental question for the Court, in each such case, is whether it perceives that a miscarriage of justice has occurred. In answering this question, authorities binding on this Court have laid down three general considerations which should guide the Court in coming to its conclusion. The first of these, although it is not an inflexible rule, is that the conviction will not usually be set aside if the evidence relied on could, with reasonable diligence, have been produced by the accused at his trial. The second and third considerations, which are inter-related, are that the ‘fresh evidence’ is apparently credible or plausible or, at least, capable of belief and, in the view of the Court, is sufficiently relevant and cogent in the sense that, if considered in combination with the evidence already given at the trial, the Court considers that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’.[12]
[11][2001] VSCA 220 (‘AHK’).
[12]Ibid [8] (citations omitted). See also Weng v The Queen (2013) 279 FLR 119, 126 [29].
For present purposes, we are prepared to accept that the power of attorney could not, with reasonable diligence, have been procured by the applicant for use at his trial.
The existence of the document emerged in this way. The applicant engaged a Chinese lawyer to act in family law proceedings in the Chinese courts. The power of attorney was disclosed during an inspection of the court file, which did not occur until 30 November 2018, after the trial was over.[13]
[13]Affidavit of David Barrese (the applicant’s solicitor) dated 2 August 2019; Affidavit of the complainant dated 25 August 2019.
In his amended written case, senior counsel for the applicant explained the relevance of the power of attorney (described as a ‘letter of authority’) as follows:
45. It is submitted that the document is highly relevant to the defence run by the applicant at trial. It was put to the complainant at trial that her allegations of rape were lies, made up by her to facilitate a divorce from the applicant and obtain as much of the marital assets as possible. (The morning after the alleged rape, on the 9th of November 2016, the complainant transferred over a million dollars out of the applicant’s bank account.)
46. The letter of authority is prima facie evidence that the complainant engaged an agent in family court proceedings in China a week prior to the alleged incident on 9 November 2016, founding a strong argument that she was preparing to separate from the applicant at least a week prior to the incident, and pre‐meditating a complaint to the police to facilitate that separation.
47. Throughout the criminal and family court proceedings the complainant has maintained that she first sought legal advice regarding separation on 10 November 2016. This document, on its face, makes that claim a lie.
48. This evidence then, goes directly to the complainant’s credibility, and to her motive to lie.
49. It is submitted that the evidence is so relevant and cogent that if the jury had heard it, in combination with the other evidence at trial, there is a significant possibility that the jury would have acquitted the applicant.
We should observe immediately that there was no warrant for the assertion in paragraphs 47 and 48 of the amended written case above. There was never any evidence at the criminal trial that the complainant had ever said that she first sought legal advice regarding separation on 10 November 2016. Further, no evidence has been placed before us, nor is it now contended, that the complainant ever maintained that allegation in the recent family court proceedings. Thus, there is no evidence to support the assertion that the complainant lied about when she first sought legal advice regarding her separation or divorce. When pressed about where evidence of the claim that the complainant had lied about this matter could be found, senior counsel for the applicant was apologetic, and said that he was unable to assist the Court. He, at once, withdrew the allegation that the complainant had lied on this issue.
What then is left of the supposed relevance and cogency of the fact that, about a week before 9 November 2016, the applicant consulted Chinese solicitors about a separation?
In cross-examination or alternatively, in his final address, senior counsel for the applicant, amongst other things, suggested the following:
·that the marriage was in trouble;
·that the complainant had falsely stated that the applicant had turned off the water and electricity in order to punish the complainant;
·that the complainant had visited her father in China, in company with another man, in order to have a marital fortune reading;
·that the complainant, after having consensual intercourse with the applicant on the morning of 9 November 2016, broke an arrangement to return home at around lunch time. Instead, she had intercourse that afternoon with another man;
·that the complainant refused to be examined by a doctor organised by police because such an examination would have disclosed that she had recently engaged in extra-marital intercourse;
·that DNA found on the complainant’s underwear belonged to two unknown persons;
·
that after having had consensual intercourse on the evening of
9 November 2016, the applicant said to the complainant, ‘you definitely cheated on me this afternoon’ and ‘you cheated on me, we’re done, because it’s your fault we get divorced. You will not get any money from me’;
·that within hours of making her complaint to police, the complainant consulted solicitors, and transferred $1.09 million from the applicant’s bank account;
·that the complainant was distressed when she spoke to Leading Senior Constable Thomason because she was facing the prospect of being financially cut off by the applicant, and/or the possibility that her conduct had put an end to her marriage; and
·that she dived ‘straight into [the applicant’s bank] account like a seagull into a hot chip’.
Towards the end of his final address, senior counsel for the applicant said:
Now, it is impossible in this life, ladies and gentlemen, to read the mind of another person but you cannot, I would suggest to you, ignore the fact that [the complainant] had a motive, maybe even more than one motive or more than one reason, to make up this allegation to allege that an incident of consensual marital intercourse was rape, which of course it wasn’t.
Likewise, towards the end of his extensive cross-examination of the complainant, senior counsel put the following to her:
… through internet banking, you transferred over $1 million from [the applicant’s bank] account into your account?
That question was immediately followed by:
I suggest to you … that your allegation of rape is false, is untrue?
It was submitted, on behalf of the applicant, that if he had been able to adduce evidence that the complainant had consulted a solicitor on 2 November 2016, it would have founded ‘a strong argument that she was preparing to separate from the applicant at least a week prior to the incident, and premeditating a complaint to the police to facilitate that separation’.[14]
[14]Our emphasis.
We are unable to accept that submission. Whilst we do accept that the fresh evidence would provide support for the proposition that, a week or so before the alleged offending, the complainant was contemplating separating from the applicant, we think that that is as far as it goes. It is clear from the evidence adduced by both parties at trial that the marriage was in substantial difficulty well before
9 November 2016. Against the background of that evidence, the fact that the complainant consulted a family lawyer is, in our view, unremarkable. It is what sometimes happens when marriages break down. In our view, it adds little to the body of evidence adduced at trial as background to the impugned incident. Whether considered alone, or in combination with other evidence, it does not support an inference of a premeditated false complaint, designed to facilitate the separation or divorce, and to strengthen the complainant’s capacity to gain financial benefit from the breakup of the marriage.
Further, we are of the view that the proposed hypothesis of a ‘premeditated complaint to police to facilitate the separation’ is inconsistent with the applicant’s evidence at trial. He said in evidence-in-chief that after the consensual act of sexual intercourse on the evening of 9 November 2016, the following exchange occurred between the couple:
COUNSEL: Now what did [the complainant] do?
APPLICANT: Then she squeezed my arm with her hand, caused me pain.
COUNSEL: Now when she did that, what did you say to her?
APPLICANT: I said, ‘You must have an affair this afternoon.’
COUNSEL: Now what was your mood then?
APPLCIANT: Very angry.
COUNSEL: Now what did you do then?
APPLICANT: I said to her, ‘Oh you must – you must … have cheated on me.’
COUNSEL: And then what did you do?
APPLCIANT: Um I said, ‘You just … made up an excuse that you are going to the tea class, you must have had a date with another guy.’
A short time later, the applicant said there was the following exchange:
COUNSEL: Did you say something to [the complainant] in the bathroom?
APPLICANT: We had a bit [of an] argument.
COUNSEL: What did you say to her in that argument?
APPLICANT: I said to her, ‘Oh you cheated on me so we cannot be together anymore and because it was you who cheated on me, you are not going to get any money from me.’
If, indeed, it was the applicant’s case at trial[15] that this argument, which took place after consensual intercourse on the evening of 9 November 2016, led to the complainant falsely alleging rape, and acting expeditiously to remove over
$1 million from the applicant, then the ‘fresh’ evidence of what occurred in China one week earlier had no bearing on the falsity or otherwise of the rape allegation itself.
[15]At trial, the alleged motivation for making a false complaint of rape was never put to the complainant in terms. It was merely hinted at. In this application for leave to appeal, senior counsel for the respondent aptly called in aid the English poet, Alexander Pope, who in the ‘Epistle to Dr Arbuthnot’ (1735) wrote that Atticus was ‘willing to wound, yet afraid to strike’.
We consider that the applicant has not established that the fresh evidence was of such cogency as to make good the claim that, in its absence, he suffered a substantial miscarriage of justice.
In our view, the applicant has failed to establish that had the proposed ‘fresh’ evidence been led at trial, and been considered along with all the other evidence, there is a ‘significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge[s]’.[16] Put another way, the proposed fresh evidence does not add, significantly, to the body of evidence already adduced at trial, and does not, therefore, meet the requirements for success upon this ground of appeal.
[16]AHK [2001] VSCA 220, [8] (Winneke P).
It follows that this ground must be rejected.
Conclusion
The application for leave to appeal against conviction must be refused.
---
5
0