Damien Aubrey Platt v The Queen
[2020] VSCA 130
•21 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0118
S APCR 2019 0108
| DAMIEN AUBREY PLATT | Applicant |
| v | |
| THE QUEEN | Respondent |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DAMIEN AUBREY PLATT | Respondent |
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| JUDGES: | PRIEST, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2020 |
| DATE OF JUDGMENT: | 21 May 2020 |
| DATE OF REASONS: | 22 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 130 |
| JUDGMENT APPEALED FROM: | DPP v Platt (unreported, County Court of Victoria, 13 February 2019, Judge Gucciardo (Conviction)) |
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CRIMINAL LAW — Appeal — Conviction — Rape — Applicant gave evidence at trial — Trial judge’s directions on applicant’s evidence apt to reverse onus of proof — Whether trial judge erred in failing to permit cross-examination on sexual relationship — Whether wrong directions on consent and belief in consent — Whether judge erred in failing to give directions on complainant’s absence of motive to lie — Whether verdict unsafe and unsatisfactory — Appeal allowed — New trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kissane QC with Mr B Johnston | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Applicant/Respondent | Ms N Karapanagiotidis (Conviction); Mr J Dickinson QC with Ms N Karapanagiotidis (DPP appeal) | Leanne Warren & Associates |
PRIEST JA
BEACH JA
McLEISH JA:
Overview
An indictment filed in the County Court alleged that Damien Aubrey Platt (for convenience, ‘the applicant’) had raped ‘HRS’ on two occasions between 1 November and 31 December 2012 (Rape[1] – charges 1 and 2).
[1]Crimes Act 1858, s 38(1) (as amended by the Crimes Amendment (Rape) Act 2007). The maximum penalty is 25 years’ imprisonment.
After a trial in which the applicant gave evidence in his own defence, on 13 February 2019 the jury empanelled to try him found the applicant guilty of both charges.[2]
[2]On 2 May 2019, following a plea conducted on 1 April 2019, the trial judge sentenced the applicant to three years’ imprisonment on each charge. The judge ordered that 18 months of the sentence on charge 1 be served cumulatively with the sentence on charge 2, leading to a total effective sentence of four years and six months’ imprisonment.
The applicant sought leave to appeal against his conviction, relying on five grounds of appeal, each accompanied by detailed particulars, as follows:
1. The learned trial judge erred in failing to rule on the applicant’s section 342 [of the Criminal Procedure Act 2009] application and/or in not permitting the applicant to cross examine the complainant as to the previous ‘unconventional’ aspects of her sexual relationship with the applicant.
1. An application was made pursuant to s 342 of the Criminal Procedure Act to cross examine the complainant as to her previous sexual relationship with the applicant.
2. The application was not formally ruled upon.
3. The prosecution lead [scil, led] evidence as to the previous sexual relationship, including evidence of violence and the applicant was prevented from cross examining the complainant about this.
4. The previous sexual relationship was relevant as it had the potential to undermine the complainant’s account and support the applicant’s version of events.
2. The learned trial judge erred in failing to direct the jury on consent and/or the applicant’s belief in consent.
1. The applicant disputed that the alleged acts of rape occurred.
2. The facts however were capable of founding an inference that, if the acts were found to have occurred, the applicant believed the complainant was consenting.
3. The learned trial judge did not give the jury a full direction in relation to consent or the applicant’s belief in consent.
4. Such a direction was not sought on behalf of the applicant however it should have been given pursuant to s 16 of the Jury Directions Act 2015.
3. The conviction on both counts was unsafe and unsatisfactory.
1. The conviction on both counts was unsafe and unsatisfactory for the following reasons:
a. The evidence of the alleged offences came from the complainant alone.
b. On the complainant’s own admission she was heavily using illicit drugs at the time of the alleged offending.
c. There was no contemporaneous complaint.
d. There was evidence of a substantially delayed complaint which was inconsistent with the complainants account.
e. The accused man gave evidence during which he denied the events.
f. The complainant continued the relationship in the days and weeks that followed the alleged rapes.
4. The learned trial judge erroneously directed the jury as to the burden of proof and/or directed the jury to convict the applicant if they rejected his evidence or if it failed to raise a reasonable doubt.
1. The learned trial judge erroneously directed the jury that, ‘if, after listening to [the applicant’s] evidence, you reject it and put it aside and it does not in any way raise a reasonable doubt, then you will have been satisfied beyond that reasonable doubt that he is guilty’.
2. The error is productive of a miscarriage of justice as it had the effect of reversing the onus of proof and/or it amounted to a direction that the jury should convict the applicant if they rejected his evidence.
3. The applicant’s evidence was of central importance in the trial.
4. The case against the applicant was a ‘word on word’ case, with a clear conflict between the evidence of the complainant and the sworn evidence of the applicant.
5. The misdirection appeared at the end of the specific direction as to how the jury should approach the applicant’s evidence.
6. Any further directions as to the onus of proof were not capable of curing this error.
5. The learned trial judge failed to direct the jury as to the lack of motive of the complainant.
1. The applicant sought no specific motive to lie direction.
2. The learned trial indicated that the applicant was entitled to the direction.
3. The learned trial judge however failed to give the direction to the jury and in the circumstances of this case, such a failure was productive of a miscarriage of justice.
For the reasons that follow, we consider that ground 4 must succeed, and the convictions must be set aside. We made orders to that effect after the hearing.
Given our conclusions concerning conviction, we need not consider the applicant’s application for leave to appeal against sentence, or the appeal by the Director of Public Prosecutions against the applicant’s sentence (initiated by a Notice dated 28 May 2019).
The evidence
So as to understand the relevant issues, it is necessary to refer briefly to the evidence in the trial.
HRS gave evidence that she was aged 17 years when she met the applicant. Three years later, ‘around September’ of 2012, they became ‘more than friends’. They used marijuana (including synthetic cannabis) together, and there was a ‘sexual side to the relationship’.
The prosecutor led from HRS that the applicant would use a serrated knife on her during sexual intercourse. HRS said the applicant would normally use it on her back. He would not cut her deep enough to make her bleed ‘but to leave a mark’. During these episodes, the applicant would ‘say dirty talk’, calling her ‘a slut and things like that’. She freely agreed to these things. HRS also said that she freely agreed to the applicant pulling her hair and strangling her during sex.
We pause to note that, since on her own account HRS freely agreed to the activities, the relevance to any fact in issue of the applicant’s use of a knife, ‘dirty talk’, hair pulling or strangulation, eludes us. As far as we can see, the evidence of these consensual activities could do no more than suggest that the applicant was habituated to what some jurors might regard as deviant sexual practices. It was not part of the prosecution case that the applicant had indulged in such activities to vitiate consent.
Once more taking up the narrative, HRS said that in November 2012 the applicant went interstate. When he came back, he told her that he had had sex with his ‘old girlfriend’. HRS was angry about it (but not ‘furious’). She told the applicant that it upset her.
HRS gave evidence that on an occasion in November 2012, she and the applicant were home alone in the lounge room and she told him that she ‘didn’t want to do anything of a sexual nature’. HRS said that she told the applicant that she was ‘unwell’, had an infection in her vagina and did not want ‘to do anything sexual’. Her evidence continued:
[PROSECUTOR]: What was his response?---Her said no, it’s all right, we’ll be right, and he proceeded to take off my pants.
Were you doing anything to stop him doing that?---Yeah, at first I was. I was, like, pushing him away and telling him I didn’t really want to do it.
And what happened?---He wouldn’t take no for an answer and he kept fighting me and I eventually just gave in and just let him do it.
What did he actually do?---He performed oral sex on me with his tongue.
Can you elaborate on that? Where did his tongue go?---On my vagina.
You say on your vagina?---In my vagina, yeah.
Do you say there was actual penetration of your vagina?---Yes.
For how long did that take place?---Maybe a couple of minutes or so.
Were you freely agreeing to that sexual penetration that took place?---Well, I didn’t want it to happen at all but he was very persistent and he wouldn’t take no for an answer so in the end I just let him do it.
Did you believe you could do anything more to stop him from doing that?---Not really, no.
What happened after that?
HIS HONOUR: What did you say? You said he wouldn’t take no for an answer. Did you actually say anything?---I said I don’t want to do this and I kept saying no, I don’t want to do this.
When you say you kept saying it were you keeping saying it when it was happening?---Until he started, when he started, like, actually performing oral on me is when I just gave up and stopped saying anything.
So at that time did you want him to do that to you?---No, I didn’t want him to do it.
These events were the foundation of the first charge.
HRS said that the incident of oral sex occurred in the afternoon. The applicant stayed on. When she went to bed that night the applicant was playing video games with her brother. She gave the following evidence of what then occurred:
[PROSECUTOR]: What room did you go to, just so we’re clear?---I went to my bedroom and so I went to bed to go to sleep, and then later that night or early hours of the morning I woke up to him having sex with me.
Just so we’re clear, were you asleep?---Yes.
You woke up you say with him having sex?---Yeah.
What position were you in?---He was, like, I was on my side and he was, like, spooning me.
With his spooning was it behind you or in front of you?---Behind me.
How was he having sex with you, what actual acts were performed?---He put his penis in my vagina.
HIS HONOUR: Did he do that when you were awake or asleep?---When I was asleep, and then I woke up to him doing it.
[PROSECUTOR]: When you went to sleep were you clothed at all?---Yeah. I had just jammies on, jammie pants and undies.
Is that just the lower part of your body or was your upper body also covered?---No, I had, I would have had, like, a T-shirt on or a singlet.
When you say jammie pants, are they full length pants or shorts, or what type of garment were they?---I’m pretty sure they were, like, just shorts, jammie shorts.
When you went to sleep you were wearing them I think is your evidence, is that right?---Yes, I was wearing them.
When you woke up to him having sex what position if any were your pants in or on?---They were still on but, like, just above my knees.
Did you remove them in any way or move them down to your knees?---I didn’t touch my, didn’t touch my pants.
So in terms of how they came to be at your knees you can’t explain that?---No. He would have, he would have taken them off, like, he would have pulled them down to have sex with me.
When you woke up and realised what was happening what did you do?---I didn’t do anything. I just lay there and waited for it to end.
Did you do or say anything preceding that penetration by him as you’ve described?---I didn’t do or say anything.
To agree to that?---Well, I didn’t agree to him having sex with me, no. I just didn’t say anything because I knew what he was like and I knew that he wouldn’t take no for an answer and I thought if I said anything it would just end up being worse.
How long did that penetration of your vagina with his penis take place for approximately?---I don’t know, it felt like a long time but maybe ten, ten minutes or something.
What happened when it finished?---Nothing really happened.
Did you go back to sleep, did you go somewhere else?---No, I just stayed in bed. I think I just, you know, just pulled my pants up.
What about Mr Platt, what did he do, did he stay there or did he leave?---He stayed there.
After that incident did your relationship continue or did it end?---No, it continued.
For how long?---Not much longer. Things started getting pretty bad between us. We started arguing a lot and he was just treating me poorly and I was just realising what kind of person he was and - - -
Did you end up having an argument that involved some physicality, if I can use that expression?---Yes, we did. We had a big argument and he grabbed me by the shirt and he pushed me with force and then he went out to the back garage, that’s where we would smoke then, and I followed him out there and I told him that I wanted him to leave. And he threw a glass bong at me and other stuff that was on the table, and then he left.
After that occasion did you see him again?---No. That was basically the end of our relationship. He did message me a few times. He did message me saying cuddle night soon, and I said not a good idea.
The incident of penile-vaginal penetration was the foundation of the second charge. We pause once more, however, to observe that we are unable to say what the relevance was of the evidence that: the applicant treated HRS ‘poorly’; she realised ‘what kind of person he was’; he grabbed her by her shirt; and he threw a bong at her. That evidence seems merely to reflect poorly on the applicant’s character.
Georgia Hatcher is related to HRS and also knew the applicant. She gave evidence that in 2012 HRS told her that she was ‘scared of [the applicant] and that she wasn’t allowed to wear certain clothes and things like that’. Ms Hatcher gave evidence that HRS ‘had said that she would wake up with him inside her and that he would be hurting her and that she’d asked him to stop and he wouldn’t do it so she’d stopped … trying to resist it and just let him do it after that’. She also gave the following evidence:
[PROSECUTOR]: Can you be more specific about that? What did she say?---I think I’m pretty sure she told me that she had been anally raped, and both of them on separate occasions had told me that when they had broken up I think he had thrown a bong at her.
Detective Senior Constable Mark Howard gave evidence that he took a statement from HRS on 31 July 2015. He arrested the applicant on Friday, 7 August 2015, and conducted a record of interview with him. The recorded interview, Exhibit A, was played to the jury.
In the course of the interview the applicant said that his and HRS’s relationship was ‘good’, although it ‘was really unhealthy’ because they ‘did nothing but smoke weed all day for … the three weeks that [they] were seeing each other’. The applicant said that the sex with HRS ‘was good because she’s pretty hot’. He told police: ‘… we were just high all the time, like we just got high, had sex and watched TV shows. It was a good three weeks’. So far as sex with HRS was concerned, the applicant said they ‘didn’t do anything out of the normal’. They sometimes used a ‘butter knife’ during sex — he would hold it to her throat — but HRS was not into ‘choking or anything like that’. He said that he strangled her ‘because she wanted me to’. The applicant said he could not remember anything like the incident founding the first charge happening, and he denied that he had penetrated HRS when she was asleep. He denied ever being violent, and could not remember throwing a bong.
As we have said, the applicant gave evidence in his defence. He said he was in a relationship with HRS for five weeks in November and December 2012 (although for two of those weeks he was in Adelaide). They smoked cannabis (including synthetic cannabis) a lot, the effects of which the applicant described in some detail. The applicant’s evidence was that their sexual relationship was ‘definitely not entirely conventional’. One of their ‘fantasies’ that they put into practice at her suggestion involved using a knife during sex. HRS also had told him that ‘she had a fantasy where [he] would come into the room while she was asleep and have intercourse with her’, but that did not happen. The applicant gave evidence that there was never an occasion when HRS said that she could not have sex because of an infection. He never sexually penetrated HRS when she was asleep, and there was never an occasion when he had sex with HRS believing that she was not consenting.
Conviction ground 4: Directions on the burden of proof
It is convenient to commence with ground 4, since it is plain that it must succeed.
In the course of his charge, when dealing with the applicant’s evidence, the judge directed the jury as follows:
Finally, if you reject [the applicant’s] evidence, that is you find that he was not telling the truth on oath, that does not necessarily mean you find him guilty just because of that. Instead, if you reject his evidence, put it to one side and ask the appropriate question, whether the prosecution has proved his guilt beyond reasonable doubt on the basis of the evidence you accept. In other words, members of the jury, your verdict should be founded on the evidence you accept rather than on the evidence that you reject.
Because there is a clear conflict between the evidence of the prosecution and that of the defence, I repeat, it is not necessary to accept [the applicant’s] evidence in order to find him not guilty. In keeping with the requirement that the prosecution must prove the case, you must acquit him if his evidence gives rise to a reasonable doubt. If, after listening to that evidence, you reject it and put it aside and it does not in any way raise a reasonable doubt, then you will have been satisfied beyond that reasonable doubt that he is guilty.[3]
[3]Given the importance of this passage to the resolution of the present application, we asked the Registrar to seek a report from the trial judge. (See CPA, s 316; and Supreme Court (Criminal Procedure) Rules 2017, r 2.42). In a report to the Court, dated 20 May 2020, the trial judge said (among other things):
I am confident that this is a mis-transcription of what I said to the jury. The respondent’s submissions identify that the recording of the charge revealed at least one error in transcription in this passage.
I am scrupulously careful to accurately direct the jury as to this aspect and am in no doubt, particularly in a case where the accused has given evidence on oath, that this passage has not been properly transcribed.
Unhappily, his Honour’s confidence was misplaced. The Court obtained an audio and video recording of the charge. It is clear that the transcript is accurate, and records word for word what the judge said.
The respondent’s counsel conceded that the italicised portion of the directions extracted immediately above are erroneous. Counsel for the respondent submitted, however, that the error was not productive of a miscarriage of justice because the charge taken as a whole made it sufficiently clear to the jury that the burden of proof rested upon the prosecution. It was submitted that the total effect of the directions could not have failed to convey that, if the jury did not accept the evidence of the applicant, in order to find him guilty, the jury still needed to be satisfied that the prosecution had proved his guilt beyond reasonable doubt. Further, although defence counsel took exception to another part of the charge, he took no exception to the erroneous direction. This demonstrates, so it was submitted, that defence counsel was of the opinion that no correction was necessary when the charge was considered as a whole.
Although counsel for the respondent were correct to concede that the impugned passage of the charge was infected with error, their contention that it was not productive of a miscarriage of justice cannot be accepted.
There are at least three serious problems with what the judge said. First, the direction was apt to suggest to the jury that failure positively to believe the applicant meant that his evidence was not capable of raising a reasonable doubt in their collective mind. Secondly, by in effect instructing the jury that they could convict if the applicant’s evidence ‘does not in any way raise a reasonable doubt’, the direction tended to reverse the onus of proof. Thirdly, and very importantly, to instruct the jury that, if they rejected the applicant’s evidence, they ‘will have been satisfied beyond that reasonable doubt that he is guilty’ is simply — and seriously — wrong. Even were the jury to reject all of what the applicant said, they could not convict unless the evidence of HRS satisfied them beyond reasonable doubt of the applicant’s guilt.
In an oft-cited passage from Liberato,[4] Brennan J observed:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
[4]Liberato v The Queen (1985) 159 CLR 507, 515.
To tell the jury that, if they rejected the applicant’s evidence, they would be satisfied of guilt, was to reverse the onus of proof. So much was a fundamental error.[5] In our view, it is an error of such a fundamental nature that it cannot be saved by the adequate directions which preceded it. We find it impossible to say that the jury could not have been misled. Indeed, we think it likely that the jury would have been left with the impression that once they rejected the applicant’s account they were entitled to convict.
[5]Directions on the burden of proof are part of the general directions which, by virtue of s 10, are exempted from the operation of Part 3 of the Jury Directions Act 2015.
In these circumstances, it cannot be said that there has been other than a substantial miscarriage of justice. Absent the error, conviction could not be said to have been inevitable.
Conviction ground 1: Failure to rule on s 342 application
Ground 1, which asserts that the trial judge erred in failing to rule on an application by the applicant under s 342 of the Criminal Procedure Act 2009 (‘CPA’), and in not permitting the applicant to cross-examine HRS as to the previous ‘unconventional’ aspects of her sexual relationship with the applicant, is without substance.
The prosecution had, by a Notice dated 20 December 2018, given notice pursuant to ss 342 and 344 of the CPA[6] seeking ‘leave to admit evidence of the sexual activities of the complainant, [HRS]’. The evidence sought to be admitted was ‘that the accused and the complainant were in a sexual relationship between September and December 2012 and the nature of that sexual relationship’, and made reference to paragraphs 8 to 11 of HRS’s statement.
[6]Section 342 provides:
342 Restriction on questions and evidence concerning complainant’s sexual activities
The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.
Section 344 is a notice provision.
Although from pre-empanelment discussion between the judge and defence counsel it appears that no formal written notice under s 342 had been filed by the applicant’s legal practitioners (apparently through oversight connected to a change in the applicant’s legal representation), the Defence Response to the Prosecution Opening had set out that: ‘There will be application to cross examine [HRS] as to prior sexual history’. Nothing turns on the failure to file a formal notice.
Paragraph 8 of HRS’s statement, made 31 July 2015, described the first time that she had penile-vaginal sex with the applicant. She said: ‘I would say that sex was consensual but he was just really persistent’. In paragraph 9, HRS said that the applicant was a ‘real manipulator’. She said that they ‘were casually seeing each other but [she] didn’t want it to be a full label like boyfriend and girlfriend’, although the applicant ‘wanted the boyfriend girlfriend tag’. HRS said that they ‘would have sex on and off’.
Of perhaps more moment, in paragraph 10 of her statement, HRS said that she would not have called their sex life ‘normal’. She said that the applicant ‘would have a real power play kind of thing’. He would cut her back with a knife while they had sex. It ‘was just enough to break the skin’, and ‘enough for it to bleed’. She would not tell him to stop. She said, ‘When he was doing this he would start the dirty talk’, including calling her ‘a slut and other dirty things’. And in paragraph 11, HRS said that the applicant ‘would also pull [her] hair and grab [her] around the throat and strangle [her] during sex’. It was not ‘really hard’ and she would not ‘black out or anything like that’. It was ‘really violent kind of sex’. HRS said that she ‘did like it a little bit but felt ashamed for liking it’.
In pre-empanelment discussion of the prosecution’s application to adduce the material in paragraphs 8 to 11 of the statement, the prosecutor submitted that the material is ‘contextual relationship type evidence’. The two charges ‘don’t just arise in a vacuum, they have a history’, and the ‘material is I suppose part of the narrative is one way of describing it’.
The judge observed that — apart from the knife — the other matters might fall ‘within the spectrum of sexual activity’, and that, ‘A lot of people might consider them acceptable’. He then said:
All right. If I don’t hear an argument about it then I just want to be informed as to the parameters of this evidence-in-chief as I would like to have an understanding of the parameters of the cross-examination. If the cross-examination is going to be either to test those matters in those paragraphs or, for that matter, to go beyond into other areas of sexual activity which was said to be consensual but perhaps somewhat at one end of the sexual spectrum of behaviour then so be it. … As long as the parties agree that that is relevant and contextual in order to describe the relationship.
Importantly, there was the following exchange between the judge and defence counsel:
[DEFENCE COUNSEL]: The position, your Honour, is this. That, as I’m instructed in the matter, there were aspects of their relationship that were – if I could adopt your Honour’s general description – towards an end of the spectrum of sexual behaviour. I understand the basis for the Crown seeking to put in the uncharged acts and I don’t resist any of that, but I just want to - - -
HIS HONOUR: What uncharged acts?
[DEFENCE COUNSEL]: The choking.
HIS HONOUR: They’re not uncharged acts are they?
[DEFENCE COUNSEL]: Yes, they are. The knife is not one of the charged acts. The charged acts - - -
HIS HONOUR: I know. Why is it a chargeable act if it’s consensual?
[DEFENCE COUNSEL]: Yes, I’m sorry, yes. Other sexual activity is what I meant to say, your Honour.
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: The Crown seek to lead that evidence, we don’t resist it.
HIS HONOUR: I mean, it’s not even other misconduct evidence I don’t think.
[DEFENCE COUNSEL]: No, it’s just part of the context of the relationship.
HIS HONOUR: That’s right. But I’m curious because how does this fit into what is, as I understood, essentially an argument about consent? I mean, there may be an extra bit to it, that is, there an aspect of the factual matrix which goes to her consenting while she’s asleep, which falls under that deeming provision, if we want to call them that.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: But generally speaking it has to do with the issues pertaining to consent. How does the fact that she’s consented a lot of times or a number of other times, even if that was to sexual activity which was at a particular end of a spectrum of sexual activity, how is that of any purpose when I’m bound to inform the jury that the fact that she has consented throughout all that time and even to activity at a particular aspect of sexual activity? It doesn’t really aid the point does it?
[DEFENCE COUNSEL]: It may, your Honour.
When regard is had to these passages it is plain that the judge offered the parties an opportunity to debate the admissibility of the evidence to be elicited based on paragraphs 8 to 11 of HRS’s statement, but that neither party sought to do so. Moreover, although the judge seems to have expressed some scepticism as to the relevance of the evidence — as we have said, its relevance eludes us — he would permit the evidence to be led, ‘As long as the parties agree that that is relevant and contextual in order to describe the relationship’. Plainly, as the evidence-in-chief and cross-examination of HRS demonstrates, the parties did agree.
In light of the foregoing, it is abundantly clear, first, that counsel for the applicant at trial did not seek a specific ruling under s 342 of the CPA; and, secondly, that the applicant’s counsel was given free rein to cross-examine HRS as to the previous ‘unconventional’ aspects of her sexual relationship with the applicant as described in her statement.
Ground 1 is wholly without merit.
Conviction ground 2: Failure to direct on consent
Ground 2 asserts a failure by the judge to direct the jury on consent or the applicant’s belief in consent. It is plain, however, that the judge did give directions on each of those matters, albeit they were limited due to the nature of the facts in issue.
The applicant’s evidence was that there was never an occasion when HRS said that she could not have sex because of an infection. He said that he had never sexually penetrated HRS when she was asleep, and denied that he had sex with HRS believing that she was not consenting.
Prior to the charge, the judge and counsel took part in the exercise required by ss 11 and 12 of the Jury Directions Act 2015. Counsel for the applicant sought directions on the applicant’s evidence; forensic disadvantage; unreliable evidence; prior inconsistent statements; and complaint evidence. He did not seek any particular directions concerning consent, or the applicant’s belief in consent. The prosecutor submitted that he was not sure a ‘consent direction’ need be given, when in cross-examination of HRS it ‘was put these things didn’t happen’.
In the course of his charge, the judge gave the jury written checklists, setting out the elements of rape. The judge then orally took the jury through those elements. Among other directions, he told the jury the following:
You should have one that is headed Charge 1 and one that is headed Charge 2. Let us start with Charge 1. The elements will be the same. To prove the crime of rape, members of the jury, the prosecution must prove the following four elements that I have set out at the top or on the front page of that handout.
The four elements which the prosecution must prove beyond reasonable doubt are: (1) That the [applicant] sexually penetrated [HRS] in the way alleged and (2) That [the applicant] intended to sexually penetrate [HRS] and (3) That she did not consent to the sexual penetration, and then (4) That he had one of these three states of mind alternatively. Either he was aware she was not consenting, he was aware that she might not be consenting, or he was not giving any thought to whether she was not consenting or might not be consenting.
The judge then went on to expand on the concept of consent. And, when dealing with the applicant’s state of mind, by reference to one of the checklists the judge said that
where there is a reference to that she was not consenting in his awareness or might not be consenting, I should tell you that that, ‘might not’, is not based on probability but possibility. So that it was possible that she might not be consenting, not in his own mind, that it was probable but, members of the jury, let us be absolutely clear that your task, the issue in this trial is not whether [HRS] was consenting at the time of particularisation.
Most significantly, the judge went on to instruct the jury that the
real dispute here, the real issue between prosecution and defence, is in relation to Element 1, the first element. That is the act that was committed, the defence is it did not happen. There were no arguments raised to you about whether she was consenting and whether he was aware or had a state of mind as to that consent or not. Both as to Charge 1 and 2, that is the defence.
Counsel had been provided with the jury checklists prior to the charge and had made no criticism of their content. Moreover, the applicant’s counsel took no exception to the directions in the charge concerning consent or the applicant’s belief in consent. Given that the ‘defence’ on each charge was that the alleged sexual activity did not occur — that being the principal fact in issue — one may readily understand why no exception was taken.
In our view, given the battleground on which the trial was fought, the complaints advanced under cover of ground 2 are unrealistic.
Ground 2 cannot be upheld.
Conviction ground 5: Failure to direct on lack of motive
Ground 5 complains that the judge failed to direct the jury ‘as to the lack of motive of the complainant’.
In support of this ground, counsel for the applicant submitted that the defence did not assert at trial that HRS had any particular motive to lie. At the close of the evidence, in discussing necessary jury directions, the applicant’s counsel submitted:
There’s no specific motive to lie. It’s going to be identified that none has been put to the complainant. I can’t identify one, but in my submission, Your Honour, you need to give the standard direction in those circumstances.
The judge indicated that he would give such a direction, yet none was forthcoming in the charge.
By virtue of s 44M(1) of the Jury Directions Act 2015, except as provided by the Act, ‘a trial judge is not required or permitted to direct the jury on the issue of whether a witness for the prosecution has a motive to lie’. Section 44L(2) provides that in giving a direction on a prosecution witness’s motive to lie the trial judge must explain ‘the prosecution’s obligation to prove that the accused is guilty’, and ‘that the accused does not have to prove that the witness had a motive to lie’.
The applicant’s counsel in this Court submitted that it is well established that a complainant’s account gains no legitimate credibility from the absence of evidence of a motive to lie.[7] It was submitted that a direction was needed because this was a case of word against word, the prosecution case depending on the jury’s acceptance of HRS’s evidence. A direction was therefore necessary to ensure that a failure to identify a motive on behalf of the complainant did not operate to bolster or enhance the credibility of her account.
[7]Palmer v The Queen (1998) 193 CLR 1, 9 [9]. And see the Notes to s 44M of the Jury Directions Act 2015.
In his address to the jury, the applicant’s trial counsel concentrated on the notion that HRS had ‘reconstructed memories, either from bits of memory she’s got or just absolutely’, so as to make herself ‘less blameless’ and to shift blame. Counsel argued that HRS may have ‘twisted or corrupted memories’, and that ‘it might be with [HRS] that she’s actually being dishonest about some of her memories’. It was also argued that the complainant’s ‘account’ is ‘from someone whose state of mind was affected at the time and subsequently by heavy drug use’. As to a possible motive that HRS might have to lie, counsel made a brief submission:
You might have had the misfortune of coming across someone sometimes who simply lies for the sake of lying. Is it possible that [HRS] is such a person? You don’t know much about her. Might she be? That’s one of the possibilities you’ll have to deal with.
In his charge, the judge gave directions the jury as to the potential unreliability of evidence of a witness who was drug-affected or suffering from insomnia. He instructed the jury that delay may have had an adverse impact on the memory of the complainant as ‘human recollection is frequently erroneous and liable to distortion’. The trial judge also told the jury to consider ‘the possibility that [HRS] honestly believes what she is saying, but is mistaken due to the distortion in her memory’.
One can well appreciate why, in light of the judge’s directions concerning the complainant’s memory, experienced trial counsel might refrain from asking the judge to direct on the absence of any evidence to suggest that the complainant had a motive to lie. In the atmosphere of the trial, counsel may have deemed it more advantageous to his client to have the jury’s focus directed towards the potential unreliability of the complainant’s memory flowing from drug use and delay, rather than have the jury’s focus turned to the absence of a motive to lie. Indeed, from a perspective somewhat removed from the trial, it strikes us that, rather than benefitting the applicant, a direction of the kind now said to be necessary may well have redounded to his prejudice.
We cannot see that any substantial miscarriage of justice has flown from the judge’s failure to give the anticipated direction. Thus, we would not uphold ground 5.
Conviction ground 3: An unsafe and unsatisfactory verdict?
Finally, with respect to the complaint in ground 3 that the verdicts are unsafe and unsatisfactory, in our view it was open to a properly instructed jury on each charge to be satisfied of the applicant’s guilt beyond reasonable doubt.
Counsel for the applicant in this Court submitted that the verdict is unsafe and unsatisfactory because:
· first, the evidence supporting the charges came from HRS alone;
· secondly, on the complainant’s own admission she was at the relevant time a heavy user of illicit drugs;
· thirdly, there was no contemporaneous complaint;
· fourthly, the content of the substantially delayed complaint to Georgia Hatcher varied in important respects from the complainant’s account;
· fifthly, the applicant gave evidence denying that the relevant incidents occurred; and
· sixthly, HRS continued in the relationship despite allegedly having been raped.
Each of the matters relied upon, however, were matters that a properly instructed jury were capable of adequately evaluating.
As the respondent’s counsel pointed out, it is not unusual that the evidence of a sexual offence derive solely from a complainant. That alone cannot render a verdict unsafe and unsatisfactory. So, too, a lack of contemporaneous complaint is not an unusual feature of cases of this type. In any event, HRS gave evidence as to the difficulties in her life at the time which might explain why she did not complain; and she also explained why she continued to see the applicant for a short time after the offences occurred. Finally, the respondent’s counsel submitted that the applicant did not give ‘compelling or powerful’ evidence.
By virtue of s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), 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 is as formulated by Mason CJ, Deane, Dawson and Toohey JJ in M.[8] Thus, ‘the question which the court must ask itself is whether it 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’.[9] 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.[10] Generally, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced.[11] In Libke, Hayne J said that ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[12] Some of the cases appear to show that this statement from Libke is apt to be misunderstood. But as is clear enough from Pell,[13] Libke did not depart from M. Properly understood, Libke neither constitutes a gloss on the M test, nor substitutes for it.
[8]M v The Queen (1994) 181 CLR 487 (‘M’).
[9]Ibid 493.
[10]M, 492–4; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[11]M, 494.
[12]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J) (‘Libke’) (emphasis in the original).
[13]Pell v The Queen (2020) 94 ALJR 394, 403 [44]–[45] (‘Pell’).
In making an independent assessment of the evidence, the Court has the transcript with which to work. We have not seen or heard the evidence either of HRS or the applicant.[14] In this case, HRS gave clear evidence that on separate occasions her vagina was penetrated (without her consent) by the applicant with his tongue and penis. On the other hand, the applicant gave evidence that these events never happened. Paying due regard to her drug use, her delayed complaint and her remaining in a relationship with the applicant despite being raped, there does not appear to have been anything strikingly improbable about the complainant’s evidence, or which so diminished her credibility and reliability that no reasonable tribunal of fact could have acted upon it. All of the matters advanced by the applicant’s counsel as rendering the verdicts unsafe and unsatisfactory were capable of proper evaluation by a reasonable jury (on the assumption that they were properly instructed).
[14]See Pell, 401 [36].
There was nothing in this case which should have compelled the jury to have a reasonable doubt as to the applicant’s guilt on either charge. It was open to the jury to have accepted the complainant’s evidence to the criminal standard, whilst rejecting the applicant’s evidence (or failing to have a reasonable doubt about guilt as a result of it).
In these circumstances, the third ground cannot be upheld.
Conclusion
For these reasons, at the conclusion of oral argument we granted leave to appeal against conviction on ground 4, and allowed the appeal. The convictions were set aside, and a new trial ordered.
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