Director of Public Prosecutions v Glen Jacobs (a pseudonym)[1]
[2020] VSCA 266
•13 October 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0194
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| GLEN JACOBS (a pseudonym)[1] | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the respondent and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | KAYE, NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 October 2020 |
| DATE OF JUDGMENT: | 13 October 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 266 |
| JUDGMENT APPEALED FROM: | DPP v Jacobs (a pseudonym) (Unreported, County Court of Victoria, Judge Lyon, 17 September 2020) |
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CRIMINAL LAW – Application to review decision by trial judge refusing certification under s 295 Criminal Procedure Act 2009 – Interlocutory appeal – Judge alone trial – Respondent previously charged with two counts of rape – Respondent acquitted on first charge at trial before jury – Retrial on second charge – Evidence – Admissibility of recorded evidence of complainant at first trial – Whether editing recorded evidence of complainant at first trial eliminates or substantially weakens prosecution case – Whether judge erred in permitting respondent to further cross-examine complainant – Prosecution case not eliminated or substantially weakened – Interests of justice permit further cross-examination of complainant before judge-alone – Application for review refused – Leave to appeal refused – Mraz v The Queen [No 2] (1956) 96 CLR 62, The Queen v Storey (1978) 140 CLR 364, DPP v Paulino (2017) 54 VR 109, Peterson (a pseudonym) v The Queen [2019] VSCA 12, applied – Criminal Procedure Act 2009 ss 295 and 296.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Harper with Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Dann QC with Ms G Connelly | Emma Turnbull Lawyers |
KAYE JA
NIALL JA
WEINBERG JA:
The respondent was charged, on indictment, with two counts of rape of the complainant, AR, on the evening of 24 April 2015. The offence, that was the subject of the second charge, was alleged to have occurred shortly after the offence that was the subject of the first charge. The respondent was acquitted, by the jury empanelled on his trial, of the first charge (‘charge 1’) but was convicted of the second charge (‘charge 2’).
The respondent was also the subject of three other trials involving charges of rape of three different complainants. He was convicted on some of the charges in two of those trials, and acquitted on all of the charges in the third trial. He successfully appealed to this Court against the verdicts in each of the trials that led to convictions on the ground that evidence had been incorrectly admitted in each trial, and his convictions, including on charge 2, were set aside.[2]
[2]Jacobs (a pseudonym) v The Queen [2019] VSCA 285.
That charge, which is now the subject of a fresh indictment, is due to be tried before a judge sitting alone in the County Court. In preliminary argument, counsel for the respondent objected to the admission of the recorded evidence of AR in the first trial. Counsel further submitted that, if such evidence were to be admitted, leave should be granted to the respondent to cross-examine AR on certain topics which had not been the subject of questioning of AR at the first trial. The judge ruled that the recorded evidence of AR should be admitted in the trial, but that it should be edited to exclude some of the evidence given by her in relation to the circumstances that were the subject of charge 1. The judge also granted counsel for the respondent leave to cross-examine AR on two specific topics.[3] His Honour granted a certificate to the prosecution under s 295(3) of the Criminal Procedure Act 2009 (‘the Act’) in respect of the decision to grant leave to further cross-examine AR, but declined a certificate in respect of the decision that the recorded evidence of AR be edited.
[3]DPP v Jacobs (a pseudonym) (Unreported, County Court of Victoria, Judge Lyon, 17 September 2020) (‘Ruling’).
The applicant, the Director of Public Prosecutions, now applies to this Court, under s 296 of the Act, for a review of the judge’s refusal to certify the decision to edit the recorded evidence of AR. The Director has also sought leave to appeal, under s 295 of the Act, against the judge’s decision to grant leave to further cross-examine AR.
Background circumstances
At the time of the events which were the subject of the two charges, the respondent was 28 years of age, and AR was 29 years of age. During the period leading up to the date of the alleged offences, the respondent and AR had communicated with each other through an online dating program, and they had met on two occasions, shortly before the date of the offending.
On 24 April 2015, the respondent and AR attended a bar together after AR had finished work for the day. They then went to the respondent’s apartment. Having watched a television program on a laptop in the respondent’s bedroom, they then became mutually intimate. In the course of doing so, the respondent, with the consent of AR, penetrated her vagina with his penis. After he had done so, AR told him to desist. The respondent, after a short delay, withdrew, and then apologised to AR. Those circumstances were the subject of charge 1 on which the respondent was acquitted. For convenience, we will refer to them in these reasons as ‘the first episode’.
After some conversation, AR agreed to remain in the apartment. She again lay down on the respondent’s bed. In due course, the respondent and AR resumed becoming mutually intimate. At one point, the respondent lay on top of AR. According to AR, she then told the respondent to stop. The respondent did not do so, and he inserted his penis into her vagina. She alleged that while he was doing so, he held her hands and wrists, and he used his body weight to pin her onto the bed. Those circumstances were the subject of charge 2, which is the charge on which the respondent is to be retried in the County Court. We will refer to these circumstances as ‘the second episode’.
AR then got dressed and left the apartment. In the following days, she and the respondent exchanged text messages, in which the respondent asserted that the incident had been a misunderstanding. AR did not report the matter to the police. However, she told some friends, and a fellow employee. The matter came to the attention of the police only after the respondent’s telephone had been examined as a result of a complaint against him made by a different complainant. As a result, the police contacted AR on 31 May 2015 and subsequently took a statement from her.
Summary of evidence of complainant AR
In her evidence, AR explained the circumstances in which she and the respondent had first met, and gave an account of the two occasions on which they had been together on 21 April and 22 April 2015. She then described in some detail what occurred after she and the respondent had travelled together to the respondent’s apartment on the evening of 24 April.
AR said that after they arrived at the apartment, she sat on a chair, the respondent sat on his bed, and they drank some alcohol and smoked cigarettes together. After about an hour, AR went and sat with the respondent on the bed. In doing so, she reclined against the wall. The respondent picked up his laptop, and, while they were sitting on the bed together, they watched a television program. AR told the respondent that she was tired and wanted to go home to sleep, but he persuaded her to remain and sleep in his apartment. They then turned around and faced each other, and the respondent kissed her. She returned his kiss and then the respondent began to touch her breasts. As he did so, he slid his hand down her dress and kissed her breasts. He then slid his hand up her dress and she told him to ‘just take it slow’. As they became more intimate, the respondent undressed her, with her consent. He also removed his own clothing and got on top of AR. As he did so, he continued to kiss her and he then inserted his penis into her vagina.
Up to that stage, there was no suggestion, in AR’s evidence, that she was not consenting to what was occurring. However, after the respondent had penetrated her, she said that she ‘became aware of what was happening’ and that she told him to stop. She said that the respondent ‘kept going … he didn’t stop’. She tried to push him off and told him to get off her. She was not able to say how long intercourse continued after she had asked him to desist, but she said that he ‘eventually’ removed his penis from her vagina. She then tried to cover herself with the sheets or duvet. She said to the respondent ‘What was that?’ and the respondent replied ‘I’m sorry, I didn’t realise, I think I’m drunk’.
AR then tried to get up from the bed, but the respondent pulled her back down onto it. He kept apologising to her, saying ‘I didn’t realise what I was doing’, and he asked AR to stay. At that stage, her clothing was on the floor. She was able to cover herself with the sheet but did not get dressed.
AR then said to him that she would remain, but that she wanted to sleep. She turned and faced the wall. The respondent asked her to look at him and he again apologised. She turned to look at the respondent, who was crying. He kissed AR, and she kissed him back. He continued to kiss her, and then started to touch, and kiss, her breasts again.
At that point, the respondent was lying next to AR. He then lay on top of her. When he did so, AR said ‘I don’t want to do this’. However, the respondent inserted his penis into her vagina. She tried to push him off, but he was holding onto her wrists or hands, and his weight was on her torso. Despite her protests, the respondent continued to have intercourse with her. Eventually, he removed his penis, and let go of her wrists. AR pushed him off her and started to get up. The respondent tried to grab her, but she pushed him away. However, she felt a push and she fell to the floor. The respondent then tried to prevent her from putting her clothes back on. Ultimately, she succeeded in doing so, and left the apartment.
About one week after the incident, a series of text messages passed between the respondent and AR. By a message dated 2 May, the respondent said that AR was ‘very confusing and I don’t know which part was real … The very romantic and amazing part or when you became so angry all of a sudden’. He said that he expected an apology from her. In turn, AR rejected the suggestion that she owed him an apology. She said that had been ‘the worst night of my life’.
In the text messages that followed, the respondent replied stating ‘… you got naked and asked me to have sex! And suddenly you woke up and got so angry! It doesn’t make any sense!’ The respondent said that he wanted to see AR again and did not want it to be ‘a one night stand’. In turn, AR sent a message to him, again rejecting the suggestion that she owed him an apology, and stating that the encounter had been ‘… the scariest night of my life and a wake-up call.’
The text messages that followed between AR and the respondent were much in the same vein. In them, AR made it plain that she resented the respondent’s conduct and that she was trying to forget what had happened. In turn, the respondent continued to assert that the sexual intercourse between them had been consensual and that he could not understand why her mood had suddenly changed so dramatically during that time.
In her evidence, AR said that after she had left the respondent’s premises in the early hours of 25 April, she sent a text message to her housemate, who did not respond because he was then in Daylesford. Later in the morning she sent him a further text stating that she ‘Was just in a bit of trouble, but I’m okay now’ and that ‘It was an awful night but it’s over now’.
Subsequently, as previously mentioned, AR was contacted by the informant on 31 May. After speaking to the informant, she sent a Facebook message to her friend, LB, in which she stated that she had been ‘seeing’ a man, and that on one evening when she went back to his place, he started getting ‘a bit frisky’. She said that she told him to stop, but he had not done so.
Counsel’s submissions to the trial judge
Before the commencement of the retrial of charge 2, counsel for the respondent objected to the admissibility of the recorded evidence of AR. He submitted that, if the evidence were played in its totality, it would deprive the respondent of the full benefit of his acquittal on charge 1. In addition, he contended that the cross-examination of AR at the first trial had been incomplete, and that he should be given leave to put further matters to the complainant in cross-examination.
In response, the prosecutor submitted that the evidence of the circumstances, which gave rise to charge 1, was relevant and admissible, as bearing upon the ongoing sequence of events that culminated in the offence that was the subject of charge 2. The prosecutor further submitted that it would render the complainant’s account of what had occurred on the night in question misleading and incomplete if the evidence concerning the events that were the subject of charge 1, were excluded.
The judge’s ruling
In a thorough and methodical ruling, the judge noted that it was not possible to determine whether the jury had acquitted the respondent on charge 1 because it was not satisfied that AR had not consented to penetration, or whether it was because the jury was not satisfied that he was aware of her lack of consent to penetration.
His Honour noted that, in relation to the first episode, AR gave ‘unequivocal evidence’ that she originally consented to undressing, to intimate and sexual touching, and initially, at least, to sexual intercourse.[4] Further, AR’s evidence was that after she told the respondent to stop, he withdrew penetration. She agreed that she had subsequently consented to the resumption of sexual touching. In that context, the judge considered that it would not be possible for the prosecution to rely on all of the evidence of AR as to the first act of penetration (that was the subject of charge 1), without ‘bringing back into focus the very matters on which [the respondent] was acquitted.’[5]
[4]Ruling [40].
[5]Ibid [43].
The judge considered that the acquittal of the respondent on charge 1, the evidence that AR subsequently consented to a resumption of sexual activity, and the fact that there was some period of time separating the two episodes, combined to preclude the circumstances of the first episode being used to draw an inference, against the respondent, in relation to the circumstances of the second episode.[6] The judge considered, that in order that the evidence of AR remain coherent, it was necessary to admit evidence of the first act of penetration (that was the subject of charge 1) and of the undisputed evidence that AR told the respondent to cease.[7] In effect, the judge ruled that the evidence of AR, subsequent to that point, concerning the remaining circumstances of charge 1, was inadmissible.
[6]Ibid [44].
[7]Ibid [46].
The second issue before the judge was the application by counsel for the respondent for leave to further cross-examine AR on four specific topics. The judge gave the respondent leave to cross-examine AR on two of those topics.
The first topic concerned discussions between the informant and AR on 31 May 2015, in which the informant told AR that the respondent was in gaol for sexual assaults, and that he had ‘done it to others’. The prosecution opposed the further cross-examination of AR on that topic, on the basis that in the first trial the defence had made a forensic decision not to cross-examine her in relation to it.
The judge noted that, as the first trial was before a jury, particular care would have been taken to prevent prejudicial material being adduced in evidence. As the present trial was to proceed before a judge alone, it was appropriate to revisit the decision made by the defence. His Honour noted that evidence as to motive or ‘taint’ relating to a witness is capable of substantially affecting the assessment of the credibility of the witness.[8] Thus, the matters on which the respondent sought to cross-examine AR were relevant and important. Accordingly, his Honour granted leave to cross-examine AR on her discussions with the informant.[9]
[8]Ibid [90].
[9]Ibid [91].
The second topic, on which leave was given to further cross-examine AR, concerned the content of a number of text messages that had passed between herself and the respondent from about 2 May 2015. Counsel sought leave to cross-examine AR in order to establish that her messages to the respondent concerned the second episode, and not the first, that AR understood his messages to her to be related to that episode, and that the text messages were inconsistent with AR’s version of the second episode.
The judge considered that the text messages would be of limited probative value, because they were merely retrospective reflections of the perceptions held by each party concerning the events in question. To the extent that those messages might relate to the first episode, they were not relevant.[10] However, there had not been any ‘particular’ cross-examination regarding the subject matter of the text messages, at the earlier trial. Accordingly, albeit with some reluctance, his Honour decided to permit limited cross-examination concerning the text messages as sought on behalf of the respondent.[11]
[10]Ibid [98]–[99].
[11]Ibid [101].
After the judge delivered that ruling, the prosecutor indicated that the Director wished to appeal the decision, and accordingly sought a certificate from the judge under s 295 of the Act. In a further ruling, his Honour declined to certify in respect of the decision that the evidence of AR be edited. He did not consider that the exclusion of that evidence would ‘substantially weaken’ the prosecution case. On the other hand, he provided a certificate in respect of the proposed appeal against the decision to permit further, limited, cross-examination of AR.
Grounds of application for review and grounds of appeal
As mentioned, the Director applies, pursuant to s 296 of the Act, to review the refusal by the judge to certify his decision that the evidence of AR concerning the first episode be edited. The Director also seeks leave to appeal against the decision of the judge permitting counsel for the respondent to cross-examine AR on the two topics specified.
It is convenient to consider, first, the application to review the refusal by the judge to certify his decision that aspects of the evidence of AR, relating to the first episode, be edited.
Judge’s ruling to exclude part of the evidence of the first episode — submissions
On the application to review the judge’s refusal to issue a certificate under s 296 of the Act, counsel for the Director submitted that his Honour’s decision to exclude part of the evidence of AR, relating to the first episode, would substantially weaken the prosecution case.
In particular, counsel for the Director contended that the exclusion of that evidence would deprive AR’s account of cogency, and would create a misleading narrative of ongoing consensual activity between AR and the respondent leading up to the alleged rape in the second episode. In that way, it was submitted, it would artificially bolster the defence case that the complainant had ‘snapped’ during the second episode, and would thus reduce the capacity of the text messages, that subsequently passed between the respondent and AR, to corroborate or support the evidence of AR.
Counsel further contended that the judge’s decision to permit evidence of the consensual aspect of the first act of penetration, but to exclude the evidence of AR regarding the non-consensual aspect of it, and the ensuing emotional exchanges between the parties, would adversely impact on the credibility of her evidence that she did not consent to the second sexual penetration. Counsel submitted that it would also affect the assessment of whether the respondent was aware that she was not, or might not be, consenting to that second sexual penetration.
In support of the proposed ground of appeal, counsel for the Director contended that the judge erred in concluding that AR’s consent to the respondent kissing her, and touching and kissing her breasts, in the lead up to the second episode, and the consensual commencement of the episode, rendered irrelevant her withdrawal of consent to penile vaginal penetration in the first episode, and the emotional exchange that ensued between them. Counsel submitted that the fact that AR consented to the resumption of some sexual activity did not mean that she thereby consented to the act of penetration that followed. Counsel therefore submitted that notwithstanding the circumstances in which the second episode commenced, the withdrawal of consent by AR, in the first episode, was relevant both to the question whether she consented to the second act of sexual penetration, and also to the respondent’s belief as to that matter.
Counsel for the Director further submitted that the evidence of AR of the withdrawal of her consent to sexual penetration, and the ongoing penetration of her by the respondent, in the first episode, would not deprive the respondent of the full benefit of his acquittal on charge 1. Further, it was submitted that the respondent’s emotional apologies to AR, after the first episode, would only deprive the respondent of the full benefit of the acquittal, if those apologies were used as admissions that he had a guilty relevant state of mind in respect of the first episode. It was submitted that the apologies are relevant, in respect of charge 2, to demonstrate the respondent’s awareness of AR’s withdrawal of consent after the first act of sexual penetration had ended, and her perception that he did not respond quickly enough to her direction to stop.
In response, counsel for the respondent submitted that the judge was correct to refuse certification in respect of the decision to edit part of the evidence of AR relating to the first episode. Counsel submitted that the exclusion of that part of the evidence of AR would not eliminate or substantially weaken the prosecution case, namely, that the offence, that is the subject of charge 2, constituted a forcible rape committed by the respondent in the face of unequivocal verbal and physical resistance by AR. In that respect, the evidence of AR is that the respondent sexually penetrated her notwithstanding that she told him repeatedly to stop, she yelled at him to get off her, and she tried to push him off, both with her legs and with whatever force she could muster. If that evidence were accepted, there would be no basis for the respondent to have held the mistaken belief that AR was consenting to the act of intercourse. In those circumstances, it was submitted, the exclusion of the edited portions of AR’s evidence, in respect of the first episode, could not eliminate or substantially weaken the prosecution case.
In respect of the merits of the proposed appeal, counsel for the respondent submitted that the judge was correct to distinguish the present case from the circumstances in The Queen v Storey.[12] In the present case, the evidence of AR concerning the first episode commenced with consensual sexual activity, which changed when she withdrew her consent and the respondent forcibly raped her. In that respect, the respondent had been acquitted of the charge of rape relating to the first episode.
[12](1978) 140 CLR 364; [1978] HCA 39 (‘Storey’).
It was submitted that it is not possible to isolate the basis upon which that verdict of acquittal had been reached. Further, the evidence was that the respondent and AR then returned to intimate consensual activity immediately before the act of rape that is the subject of charge 2. In those circumstances, it was submitted, the evidence of AR, on the basis of which the respondent was charged with rape arising from the first episode, could not be used by the prosecution to fix the respondent with knowledge that there would be no consent to any subsequent act of sexual penetration.
Counsel further noted that the judge did not consider that the exclusion of part of the evidence of AR concerning the first episode would cause the evidence of AR, relating to the circumstances of the second episode, to be presented on a misleading basis.
The judge’s ruling to edit evidence of the first episode — analysis
Section 295(3)(a) of the Act provides that a party may not seek leave to appeal an interlocutory decision concerning the admissibility of evidence unless the judge, who made the decision, certifies that the evidence, if ruled inadmissible, would ‘eliminate or substantially weaken the prosecution case’. Section 296 provides for the review by this Court of a decision of the judge to refuse to certify the decision. Section 296(4)(a) states that on a review the Court must itself consider whether, if the evidence is ruled inadmissible, it would eliminate or substantially weaken the prosecution case.
On a number of occasions, this Court has noted the strictness of the test, that the exclusion of the evidence must either eliminate or substantially weaken the prosecution case, and the Court has emphasised the rigour with which that test must be applied in determining whether a certificate should be granted. In Director of Public Prosecutions v Paulino,[13] Weinberg JA stated:
It is important to emphasise the significance of that distinction. It is worth repeating that, before certifying, a trial judge must be satisfied that the exclusion of the evidence would ‘eliminate or substantially weaken the prosecution case’. The word ‘eliminate’ has only one possible meaning. It connotes that there must be no case at all without that evidence. The alternative limb, namely ‘substantially weaken’, clearly involves questions of degree, and matters of discretion. The word ‘substantial’ is not a word with fixed meaning in all contexts. It is susceptible of ambiguity, and can conceal a lack of precision. On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis. Thus, ‘substantially weaken’, in the context in which that expression is used, suggests something not very far short of elimination, rather than merely significant, or important.
Before a trial judge certifies in relation to an evidentiary ruling, he or she must be satisfied that if the evidence is ruled inadmissible, its exclusion could realistically be expected to affect the outcome of the trial. In my view, having regard to the strong public policy reasons for discouraging interlocutory appeals in criminal matters in general, and particularly those involving nothing more than points of evidence, nothing short of a test approached with that degree of rigour will suffice.[14]
[13](2017) 54 VR 109; [2017] VSCA 38 (‘Paulino’).
[14]Paulino (2017) 54 VR 109, 112 [9]–[10]; [2017] VSCA 38 (emphasis in original) (citations omitted). See also ZL v The Queen [2010] VSCA 345, [18]–[20] (Nettle JA); Russell (a pseudonym) v The Queen [2016] VSCA 196, [28]–[34] (Maxwell P, Whelan and McLeish JJA); Peterson (a pseudonym) v The Queen (2019) 57 VR 521, 522–4 [6]–[9] (Maxwell P and Taylor AJA); [2019] VSCA 12 (‘Peterson’).
In Peterson, Maxwell P and Taylor AJA described the approach to be taken by this Court in considering an application to review the refusal of the judge to certify an interlocutory decision in the following terms:
An application to review a refusal to certify faces a greater hurdle than does an application for leave to appeal where certification has been granted.[15] As was emphasised in [Frazier (a pseudonym) v The Queen]:
this Court will ordinarily attach considerable weight to the judge’s decision regarding the applicable precondition.[16]
Applications under s 296 for leave to review a refusal to certify, like applications under s 295 for leave to appeal, are determined according to the principles outlined in House v The King.[17] Thus, in both ss 295 and 296 applications, this Court will intervene only if specific error is established or if the impugned decision — either the refusal to certify, where certification has not been granted, or the evidentiary ruling itself, where certification has been granted — was not reasonably open in the circumstances.
The jurisdiction to review a refusal by a trial judge to certify ‘is to be invoked responsibly and sparingly’.[18] It is axiomatic that evidence ruled admissible by a trial judge is probative of the prosecution case and that, accordingly, if it were excluded, it would weaken that case. But that is not nearly sufficient to meet the onerous test of ‘eliminate or substantially weaken’ in s 295(3) of the Act.
As explained by Weinberg JA in Paulino, those words have considerable work to do. And the trial judge will usually be in the best place to decide whether the test has been met. Where, as here, the judge decides that it has not been met, this Court will be slow to conclude that the decision was not reasonably open.[19]
[15]Lewis (a pseudonym) v The Queen [2018] VSCA 40, [42] (Ferguson CJ, Weinberg JA and Kidd AJA).
[16][2017] VSCA 370, [8] (Maxwell P and Kyrou JA) (‘Frazier’).
[17](1936) 55 CLR 499; [1936] HCA 40.
[18]Frazier [2017] VSCA 370, [36] (Maxwell P and Kyrou JA).
[19]Peterson (2019) 57 VR 521, 524 [10]–[13] (Maxwell P and Taylor AJA); [2019] VSCA 12.
In applying those principles to the present case, an analysis of the issues in the upcoming trial demonstrates that the decision by the judge, to exclude part of the evidence of AR relating to the first episode, would not, and could not, have the effect of either eliminating or substantially weakening the prosecution case.
The three key elements of the charge against the respondent, which the prosecution must prove, are, first, that the respondent penetrated AR, secondly, that AR did not consent to that penetration, and, thirdly, that at the relevant time the respondent was aware that AR was not, or might not be, consenting, or (alternatively) the respondent did not give any thought to whether AR was not or might not be consenting to penetration.
It is clear from the cross-examination of AR in the first trial (which will be a substantial part of the cross-examination of her in the forthcoming trial), the text messages that passed between the respondent and AR, and the final address of counsel for the respondent in the first trial, that there will be no issue that the respondent did penetrate AR in the second episode.
It is equally clear that there will be no issue that, at some stage in the second episode, AR refused her consent to the penetration. The critical issue will be whether the prosecution can prove beyond reasonable doubt that AR refused her consent before the respondent penetrated her, or whether (as maintained on behalf of the defence) the initial act of penetration was consensual, but that AR subsequently ‘snapped’ and ceased to consent, whereupon the respondent withdrew from penetration. In that context, the omission from the evidence of AR of the parts excluded by the judge would not eliminate, or substantially weaken, the probative value of the evidence given by AR that, before the respondent penetrated her vagina in the second episode, she both verbally and by her actions, refused her consent to him doing so.
At the risk of repetition, the judge has not excluded, from the account given by AR of the first episode, her evidence that after the respondent had penetrated her, she then refused to consent to ongoing intercourse with him. The omission of the evidence of AR, that the respondent then delayed in withdrawing his penis from her vagina, would not, and could not, affect the probative value of her evidence that subsequently, in the second episode, she refused consent before any penetration took place. Equally, the omission, from the account given by AR of the first episode, of her evidence that the respondent then apologised, would not affect the cogency or probative value of that aspect of AR’s evidence in respect of the second episode. Thus, the omission of the account given by AR of the excluded portions of her evidence does not, and could not, eliminate or substantially weaken the prosecution case that AR refused her consent, in the second episode, before penetration took place.
Equally, it is not possible to conceive how the omission of the excluded parts of the evidence of AR could or would affect the proof by the prosecution of the third element of the charge, namely, that the respondent was aware that AR was not, or might not be, consenting, or that he did not give any thought as to whether she was not or might not be consenting. The clear evidence of AR, in respect of the second episode, was that after she and the respondent had engaged in some intimacy, she made it clear by her words and actions that she did not consent when the respondent sought to progress that intimacy to sexual intercourse. Her evidence was that she told the respondent to stop, and that she said to him ‘I don’t want to do this.’ When the respondent disregarded her refusal of consent, she then physically resisted, trying to push him off her with her legs, and yelling at the respondent to get off her. In that context, it is not possible to understand how the omission of the excluded sections of the evidence of AR, relating to the first episode, could impact at all on the proof by the prosecution of that element of the charge.
In that respect, counsel for the Director submitted that the evidence as to what ensued in the first episode, after AR withdrew her consent, made it plain to the respondent that she did not wish to engage in further sexual intercourse with him. That may be so. However, in light of the terms in which AR has said that she refused to consent to the second act of sexual intercourse, the omission of the excluded parts of her evidence relating to the first episode could not undermine, or weaken, her evidence that in the second episode she made it plain to the respondent that she was not consenting to penetration.
For those reasons, the Director has failed to demonstrate that the ruling by the judge, to exclude particular portions of the evidence of AR relating to the first episode, would eliminate or substantially weaken the prosecution case.
That conclusion is fortified by an exchange which took place in the course of oral argument between counsel for the Director and Weinberg JA. In response to a question by his Honour, counsel acknowledged that if the ruling of the trial judge is not set aside, the prosecution would not withdraw the charge of rape, because, notwithstanding the absence of the excluded parts of AR’s evidence, the prosecution considered that it would have a reasonable prospect of gaining a conviction in the trial. That concession by counsel for the Director undermines the proposition that the judge’s decision to exclude some parts of the evidence of AR relating to the first episode, and the exchange that occurred between the respondent and AR subsequent to that episode, would eliminate or substantially weaken the prosecution case, in the sense discussed in Paulino. For those reasons, we would reject the application to review the decision of the judge to refuse to certify that decision.
As a result of that conclusion, it is not strictly necessary for us to consider the merits of the proposed application for leave to appeal against the decision of the judge to exclude those parts of the evidence of AR. However, in deference to the submissions advanced by the parties, it is appropriate for us to deal, briefly, with that issue.
For the purposes of the present application, it is not necessary to consider in detail the principles that apply to the question whether evidence, which might prove the commission by an accused person of an offence of which that accused has been acquitted in a previous proceeding, may be admitted in evidence in a trial of the same accused to prove a fact or element that is relevant to another offence charged against that accused. The fundamental principle is that in the second proceeding the previous verdict of an acquittal may not be called into question or controverted, and the accused must be given the full benefit of the acquittal of the charge in the previous proceeding.[20]
[20]See, eg, Sambasivam v The Queen [1950] AC 458, 479 (Lord Simonds, Lord MacDermott, Lord Reid, Sir John Beaumont and Sir Lionel Leach); Garrett v The Queen (1977) 139 CLR 437, 445 (Barwick CJ); [1977] HCA 67; Storey (1978) 140 CLR 364, 372 (Barwick CJ), 396 (Mason J), 424 (Aickin J); [1978] HCA 39; The Queen v Carroll (2002) 213 CLR 635, 648, [37], 650 [45] (Gleeson CJ and Hayne J), 663 [93] (Gaudron and Gummow JJ); [2002] HCA 55.
The effect of that principle, in a particular case, must depend on the facts and circumstances in the case. The starting point is that evidence concerning the commission by the accused of the previous offence, on which the accused has been acquitted, is not admissible in the subsequent proceeding to prove the guilt of the accused of that same offence.
A clear example of the application of that principle was in the decision of the High Court in Mraz v The Queen [No 2].[21] In that case, an element of the offence on which the accused was acquitted (murder) was the commission by the accused of another offence (rape) in the course of which he did an act which resulted in the death of the deceased. The Court held that the acquittal of the accused on that charge (murder) precluded the subsequent prosecution of him for the offence (rape) that was a necessary element of the commission of the offence of murder of which he had been acquitted.
[21](1956) 96 CLR 62; [1956] HCA 54 (‘Mraz [No 2]’).
In reaching that conclusion, the Court stated:
Under s 18 of the Crimes Act 1901–1951 (NSW) the crime of murder is committed if the act of the accused causing the death charged was done during or immediately after the commission by the accused of the crime of rape … The acquittal of murder therefore necessarily negatived the proposition that the applicant caused the death of the young woman during or immediately after the commission by the accused of the crime of rape. … On a subsequent indictment the Crown would be precluded upon any issue which could not be found consistently with a negative of the proposition.[22]
[22]Mraz [No 2] (1956) 96 CLR 62, 67–68 (Dixon CJ, Williams, Webb, Fullagar and Taylor JJ); [1956] HCA 54.
In Mraz [No 2], the application of that principle was relatively clear cut. In other cases, however, the circumstances may be such that the evidence of the commission of the offence, on which an accused has been acquitted, may be so inextricably connected with the evidence of the commission by that accused of a different offence for which he or she is on trial, that the exclusion of the evidence concerning the commission by the accused of the first offence (on which the accused was acquitted) would deprive the evidence of the commission of the second offence of coherence. In such a case, the courts have emphasised that where, in the second trial, the evidence is admitted as to the commission by the accused of the earlier offence on which the accused has been acquitted, it is important that the evidence, relating to the offence of which the accused has been acquitted, not be used in a way which might controvert or call in question the acquittal of the accused of the earlier offence.[23]
[23]Storey (1978) 140 CLR 364, 398 (Mason J), 424–5 (Aickin J); [1978] HCA 39; Washer v Western Australia (2007) 234 CLR 492, 506 (Gleeson CJ, Heydon and Crennan JJ); [2007] HCA 48.
In Storey, it was alleged that the accused had abducted the complainant from a railway station by force, taken her to a pavilion by a football field, and twice raped her there. The accused were each charged (inter alia) on one count of abducting the complainant by force with the intent to carnally know her, and two counts of rape. At their trial, they were acquitted by the jury of charges of abduction, but the jury could not agree on the rape charges. On their retrial, the complainant again gave evidence that on the night in question she was forcibly abducted from the railway station and then subsequently raped in the pavilion.
On appeal to the High Court, the evidence as to the abduction of the complainant was held to be admissible in the second trial because it was relevant to the question of her consent to the acts of sexual intercourse which subsequently took place in the pavilion. The Court considered that the account given by the complainant would be incomplete and artificial if her description of the events that took place at the railway station were either excluded or restricted. Thus Mason J stated:
There are some cases, and the present is one of them, in which the exclusion of a part of the testimony of a material witness in deference to the principle of res judicata would render the balance of the witness’ testimony so incomplete and artificial as to provoke dangerous speculation on the part of the jury. In such circumstances, provided that it works no injustice to the accused, it is preferable that the evidence of the witness should be led and precise instructions should be given to the jury as to the use to which that evidence can be put. In this case the adoption of this course will in all probability advantage the accused because it tends to suggest that the testimony of the witness to the extent to which it was relied on by the Crown to support an earlier charge may have been found to be unacceptable. At the same time, the Crown is not precluded from leading evidence which is relevant to the offence charged.[24]
[24]Storey (1978) 140 CLR 364, 397, see also 369 (Barwick CJ), 387–8 (Gibbs J), 424–5 (Aickin J), cf 408–9 (Jacobs J); [1978] HCA 39.
In applying those principles in the present case, the starting point, is that if the evidence of AR, that is excluded by the ruling of the trial judge, were led in the trial, it would call into question — and indeed contradict — the verdict of the jury acquitting the respondent on the charge of rape arising from the first episode. The evidence of AR that, after she asked the respondent to cease penetration, he continued to do so, and that he only withdrew ‘eventually’, was the specific basis of the prosecution case, in respect of the first charge, that the respondent thereby raped AR. If that evidence were adduced in the forthcoming trial, it would quite clearly contradict the jury’s verdict. Further, in the previous trial, the prosecution relied on the apologies which the respondent made to AR, after the first episode, and before the commencement of the second episode, as admissions of guilt by him of the offence that was the subject in the first charge. As such, they were a part of the prosecution case concerning the guilt of the respondent on the charge of which he was found not guilty.
Counsel for the Director has submitted that the prosecution now seeks to rely on those aspects of the evidence of AR, in respect of the second charge, for a different purpose. It is submitted that those aspects of the evidence of AR are relevant to support the prosecution case that the respondent was aware that AR did not wish to participate in sexual intercourse with him after the first episode, notwithstanding that she was willing to engage in some sexual intimacy falling short of penetration.
There are two answers to that submission. First, the evidence of AR was that after the first episode, she engaged in further consensual sexual intimacy with the respondent. In that way, the probative value of the evidence of the earlier withdrawal of consent by AR, and the apologies by the respondent, would be quite limited in respect of the question whether, subsequently, AR consented to sexual intercourse in the second episode.
Secondly, the exclusion of the evidence of AR concerning the delay between the withdrawal of her consent, and the cessation of penetration in the first episode, and the respondent’s subsequent apologies, is not necessary to ensure that the account given by AR remains coherent and complete.
As we have discussed, the evidence of AR in relation to the second episode was that after the resumption of consensual intimacy between them, she made it clear to the respondent, both by her words and by her actions, that she did not wish to engage in sexual intercourse with him before he sought to, and did, penetrate her. The evidence of AR, to that effect, is not rendered confusing or disjointed as a consequence of the ruling by the judge excluding parts of the evidence relating to the first episode. Nor does it deprive the account given by AR, of the second episode, of sufficient context to enable the Court (in this case, the judge sitting alone) to understand the content of her evidence as to her refusal to consent to penetration, in the second episode.
For these reasons, the judge’s ruling, to exclude specific sections of AR’s recorded evidence, was correct.
Application for leave to appeal — decision by trial judge to grant leave to cross-examine the complainant
We turn, then, to the application for leave to appeal against the decision of the trial judge to permit counsel for the respondent to cross-examine AR on two further topics, namely, the conversations between herself and the informant on 31 May 2015, and the text messages that passed between her and the respondent on 2 May 2015, and following.
Counsel for the Director commenced by noting that in Bauer (a pseudonym) [No 2] v The Queen[25] this Court stated that part of the raison d’être of s 381 and s 385 of the Act is to alleviate the stress and trauma that may be occasioned to a complainant by being required to give evidence on more than one occasion, specifically in the event that a trial of the proceeding has miscarried. Counsel for the Director noted that in the first trial, experienced senior counsel for the respondent had made a forensic decision not to cross-examine AR concerning her discussion with the informant in which AR was told that the respondent was in gaol for having sexually assaulting other women. Counsel for the Director submitted that the fact that the upcoming trial would be held before a judge alone, and not a jury, is an insufficient basis to entitle counsel for the respondent to revisit that decision. In essence, counsel submitted, the introduction of judge alone trials in Victoria could not justify the recalling of a complainant for further cross-examination, and the judge’s decision to permit that course in this case was erroneous.
[25][2017] VSCA 176, [35] (Priest, Kyrou and Kaye JJA).
Counsel for the Director further submitted that the judge erred in finding that the subject matter of the text messages, that had passed between AR and the respondent, had not been the subject of particular cross-examination in the first trial. In fact, in the first trial, counsel for the respondent had engaged in some cross-examination of AR regarding the content of those messages. It was submitted that the desire to cross-examine AR further in relation to the text messages was not, of itself, an appropriate basis for the judge to have given leave to do so.
In reply, counsel for the respondent submitted that the judge was correct to conclude that it was in the interests of justice to grant limited leave to further cross-examine AR concerning the two designated topics. In particular, counsel submitted that it would be unjust for the respondent to be precluded from cross-examining the complainant as to the discussions she had had with the informant on 31 May, when the informant told her that the respondent had ‘done this to others’, that he had been arrested, and that he was in gaol for sexual assault.
Counsel for the respondent noted that at the time application was made for the trial to proceed before a judge alone, it had been contended on behalf of the respondent that that course should be adopted for a number of reasons. One of those reasons was that it would enable AR to be further cross-examined on that topic.
Significantly, at the hearing of that application for a judge alone trial, counsel for the prosecution had conceded that the desire to further cross-examine AR on that subject was an appropriate matter to take into account in determining whether the trial should proceed before a judge alone. Accordingly, it was submitted, the prosecution was now acting unfairly by opposing such cross-examination.
Counsel for the respondent submitted that there had been a sound forensic reason for defence counsel in the first trial not to have cross-examined AR, before the jury, concerning the conversation which she had with the informant. Indeed, it would have been sheer folly to have done so. It was submitted that the prosecution now sought to hold the respondent to an appropriate forensic choice that had been made in a very different context.
Counsel for the respondent submitted that the proposed cross-examination would be directed to an important issue in the trial, namely, the circumstances in which the complainant came to speak to the informant, and to make a statement to the police complaining about the respondent’s conduct.
Notably, the conversation between the informant and the complainant took place on the same day, and shortly before, the complainant told her friend, LB, about what the respondent had done. The evidence that she communicated with LB after she had spoken to the informant would, it was submitted, materially affect the weight to be given to the complaint that she made to LB, and weaken its force as evidence of consistency of the account given by AR.
Counsel further submitted that the judge had been correct to grant leave to cross-examine AR concerning the content of the text messages that had passed between herself and the respondent. Counsel noted that the prosecution intended to contend, at the trial, that the text messages related to the first episode, and not to the second episode. In that context, it was submitted, it was important to the defence to seek to demonstrate that the text messages in fact related to the second episode, and, as such, were inconsistent with the account given by AR as to the circumstances of that incident. Counsel contended that, in the absence of such cross-examination, the evidence concerning the content and import of the text messages would be incomplete.
In our view, the judge was plainly correct to conclude that it was in the interests of justice to grant leave to cross-examine AR concerning the conversation which she had with the informant, in which the informant told her that the respondent had ‘done this to others’, that he had been arrested, and that he was then in gaol for sexual assault.
That decision was correct for two principal reasons. First, on the retrial of the charge concerning the second episode, the respondent applied to the Court for a trial by judge alone. That course was not opposed by the prosecution. In his ruling acceding to the application,[26] Judge Gamble noted that the respondent relied on four principal factors in support of the submission that it was in the interests of justice that the case be tried by a judge alone. The fourth of those factors was that the respondent would suffer a forensic disadvantage if the trial were to proceed before a jury, because he would, again, be forensically ‘hamstrung’ from seeking to undermine the complaints made by AR to LB by cross-examining AR concerning her conversation with the informant.[27]
[26]DPP v Jacobs (a pseudonym) [2020] VCC 1251.
[27]Ibid [40], [45].
Judge Gamble noted that the prosecutor conceded that each of the four factors, relied on by the respondent, were relevant to the exercise of the Court’s discretion.[28] In determining that it was in the interests of justice that an order should be made for a judge alone trial, the judge accepted that each such factor, including that of forensic disadvantage, weighed in favour of the making of such an order. In particular, the judge accepted that the forensic disadvantage point was a relevant consideration, because a trial before a judge alone would afford the defence the opportunity to fully test the value of the complaint evidence, whereas if the trial proceeded before a jury, that opportunity would not realistically exist.[29]
[28]Ibid [48].
[29]Ibid [63].
In those circumstances, it is clear that one of the reasons why the respondent sought, and was granted, a trial before a judge alone, was so that his counsel would have the opportunity to cross-examine AR concerning the content of the conversation which she had with the informant before she made a complaint to LB, and before she made a written statement to the police in the matter. It is particularly relevant that, in the application before the judge, the prosecution then accepted that that consideration was relevant for the purposes of determining whether the case should proceed before a judge sitting alone. In those circumstances, it is a matter of some concern that the prosecution has now sought to resile from the position that it adopted before Judge Gamble. In our view, it would be entirely unfair to the respondent if — as the prosecution now contends — his counsel were precluded from cross-examining AR concerning the conversation that she had with the informant.
Further, we agree with the submission by counsel for the respondent that it would have been complete folly for counsel acting for the respondent, in the trial before the jury, to have embarked on such cross-examination on that topic. Indeed, in the course of oral submissions, the members of the Court expressed the view that it would have been nothing short of ‘lunacy’ for defence counsel to have embarked on such cross-examination of the complainant before the jury.
In reality, there was no ‘forensic choice’ available to counsel for the defence at the trial before the jury. While ordinarily the Courts expect, and are confident, that juries adhere conscientiously to directions by a trial judge to ignore or disregard prejudicial material, it would be quite unrealistic to contemplate that a jury, in a case such as this, could have disregarded evidence elicited in cross-examination that the respondent had engaged in the type of conduct, complained of by AR, on other occasions, and that he had been arrested, and was in gaol, in respect of such offences. On the other hand, it is understandable that counsel would expect that a judge, accustomed to exercise intellectual rigour, would be able to disregard the prejudicial effect of such evidence, and to focus on the relevance of it, in a trial before the judge alone.
The evidence of the content of the conversation between the informant and AR potentially has significant relevance in the context of the trial. Apart from the text that AR sent to her housemate in the early hours of 25 April, she did not make any further complaint to anyone else concerning the respondent’s conduct until after she had spoken to the informant. In that context, it is particularly relevant that AR’s complaint to her friend LB followed within a short time of her having spoken to the informant, and been informed of the respondent’s background and history of other similar offending.
Standing alone, the evidence of AR’s complaint to LB could have some significance in supporting the consistency and credibility of the account given by AR. Basic principles of procedural fairness require that counsel for the respondent be given the opportunity properly to explore the circumstances in which the complainant came to make that complaint to her friend. It would be quite unjust that, having been granted a trial before a judge sitting alone, the respondent should be deprived of the opportunity to address that issue by reference to evidence which would be relevant and important in respect of it. In those circumstances, we are well persuaded that it is in the interests of justice that the judge permit counsel for the respondent to cross-examine AR concerning the conversation which she had with the informant.
We are also of the view that the judge was correct to conclude that it is in the interests of justice that counsel for the respondent have leave to cross-examine AR concerning the content and effect of the text messages which passed between herself and the respondent on 2 May and following. At the trial before the jury, there was only limited cross-examination of AR concerning those text messages. In the upcoming trial, counsel for the respondent wishes to contend that those messages referred to the circumstances of the second episode, and not the first. Accordingly, it would be argued that the content of some of the messages was inconsistent, in key respects, with the account given by AR, in her evidence, concerning the circumstances in which the second episode occurred.
In those circumstances, it is clear that the topic, which counsel seeks to address in further cross-examination of AR, may be of some importance in the assessment by the judge of the evidence given by AR concerning the second episode, which is the basis of the charge against the respondent. A number of the assertions, contained in the messages sent by the respondent to AR, are difficult to reconcile with the account given by AR of the manner in which the second episode occurred. Further, there is substance in the submission by counsel for the respondent that some of the responses, contained in the texts sent by AR to the respondent, are difficult to reconcile with the version of the events concerning the second episode given by her in her recorded evidence. In order that counsel be able to advance a submission to that effect, at trial, it will be necessary, first, to cross-examine AR in compliance with the rule in Browne v Dunn.[30] Fairness to the respondent, and to AR, would require that counsel be permitted to undertake that cross-examination.
[30](1893) 6 R 67.
As we have discussed, the central issue, relating to the second episode, is whether AR refused consent before penetration occurred, or whether, after consensual sexual intercourse had commenced, she withdrew her consent to it continuing.
In that respect, in the first trial, counsel acting for the respondent placed particular emphasis on the texts sent by the respondent to AR on 2 May in which (he maintained) that after he had had sexual intercourse with her for ’10 minutes’, she had suddenly become angry, for no apparent reason. In his final address to the jury, counsel for the respondent submitted:
… if you accept that what happened is as [the respondent] described it, in that exchange of texts on 2 May, would that cause you to doubt what had happened, and then if you accept that sex continued for something in the order of 10 minutes, it doesn’t have to be as long as that, I suppose, sex continued for a period before the complainant suddenly snapped to, thereafter [the respondent] withdrew, you would necessarily have a doubt about the complainant’s account.
In that way, the issue, on which counsel for the respondent was given leave to cross-examine AR, may be of particular importance in the trial. In determining whether to grant leave to cross-examine AR in accordance with s 385(2)(c), it is of course necessary to give appropriate weight to the underlying philosophy of Division 7, namely, to spare a complainant the stress and trauma of undergoing cross-examination, for a second time, in the event of a retrial. That consideration is a matter which must be weighed against the relevance and importance of the cross-examination in respect of which leave is sought.
In the present case, for the reasons outlined, we consider that the judge was correct to conclude that the relevance and importance of the point, on which further cross-examination was sought to be undertaken, was such that it was in the interests of justice that counsel for the respondent be permitted to undertake further cross-examination, concerning the two topics specified by the judge.
For those reasons, we are not persuaded that the judge erred in granting leave to cross-examine AR on the two designated topics. Accordingly, the application for leave to appeal against that decision should be refused.
Summary of conclusions
For the foregoing reasons, we have reached the following conclusions:
1.The application of the Director to review the refusal of the judge to certify the decision to edit sections of the evidence of AR relating to the first episode should be refused.
2.The application for leave to appeal against the decision of the judge to give leave to counsel for the respondent to further cross-examine AR should also be refused.
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