Gaunt v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0179

NIGEL GAUNT	Applicant
v
THE KING	Respondent

---

JUDGES:	BEACH, KENNEDY and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2024
DATE OF JUDGMENT:	12 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 311
JUDGMENT APPEALED FROM:	DPP v Gaunt [2023] VCC 850 (Judge Chambers)

---

CRIMINAL LAW – Application for extension of time to seek leave to appeal against conviction – Rape – Where judge gave a direction about applicant’s admission to ‘inappropriate’ conduct – Where no further direction sought by counsel – Whether judge should have given a further direction on basis that evidence constituted ‘other misconduct evidence’ – No substantial and compelling reasons to give any further direction – Whether judge properly directed jury that they could take the applicant’s intoxicated state into account – Judge’s direction adequately referred to intoxication and related it to whether applicant had belief in consent – Application for extension of time refused.

Jury Directions Act 2015 ss 12, 15, 16, 26, 27 and 29; Crimes Act 1958 ss 37 and 37AA, as at 17 December 2008.

Madafferi v The Queen [2017] VSCA 302; Dunn (a pseudonym) v The Queen [2017] VSCA 371; O’Leary v The King (1946) 73 CLR 566; R v Adam (1999) 106 A Crim R 510, applied; Quinn (a pseudonym) v The Queen (2018) 272 A Crim R 146; Khan v The Queen [2011] VSCA 286, distinguished.

---

Counsel
Applicant:		Mr DA Dann KC with Mr PJ Smallwood
Respondent:		Mr RL Gibson KC
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
ORR JA:

In January 2009, the applicant met up with his partner, Ms Tori Jarrett,[1] as well her friend, Ms Marie Sparks,[2] at a hotel in the Albert Park area. After spending some time at the hotel, the three went to the applicant’s home, nearby. Ms Sparks alleges that the applicant then raped her in a spare room of the applicant’s home at a time when Ms Jarrett was also present in the house.
[1]A pseudonym.
[2]A pseudonym.
Although Ms Sparks made complaint to some of her friends shortly after the alleged rape, she did not report the matter to police until March 2019. She then conducted a recorded pretext call with the applicant on 3 April 2019.
The applicant made a ‘no comment’ record of interview in September 2019. He was subsequently charged with one count of rape in March 2020, and underwent a trial in the County Court in April 2023. Both Ms Sparks and Ms Jarrett gave evidence at the trial, and the pretext call was admitted into evidence without objection.
On 28 April 2023, the applicant was convicted of rape by jury verdict. He was subsequently sentenced on 26 May 2023 to 5 years’ imprisonment, with a non-parole period of 3 years’ imprisonment.
The applicant now seeks an extension of time to seek leave to appeal the conviction.[3] In particular, the applicant claims that the judge failed to give appropriate directions, having regard to certain statements he made in the pretext call to the effect that he had engaged in ‘inappropriate’ conduct; and that he was intoxicated.
[3]The applicant was granted leave to abandon an application for an extension of time to seek leave to appeal the sentence following a warning being given under s 281(3) of the Criminal Procedure Act 2009.
The application for leave to appeal advances the following proposed grounds:
(1)the trial miscarried in that the jury were not directed that they could take the applicant’s intoxicated state into account, when considering whether he had a belief in consent;
(2)the trial miscarried in circumstances where the trial judge did not provide the jury with any form of ‘other misconduct’ direction.
For the following reasons, the application for an extension of time will be refused.

Extension of time

The application for extension of time was made on 5 October 2023 and was more than three months out of time. The applicant’s explanation for this delay was that there was a change of both counsel and instructing solicitors which required time for familiarisation with the relevant materials.
The principles relating to the court’s discretion whether to grant an extension of time were summarised by this court in Madafferi v The Queen in the following terms:
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay — and the reasons for it — and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[4]
[4][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations omitted).
It has been unnecessary to consider the reasons proffered for the delay in any depth. Given that, for reasons which follow, the proposed grounds are without merit, it would be futile to grant the extension of time sought by the applicant.

Evidence at trial

The central witnesses called by the prosecution were Ms Sparks and Ms Jarrett. The prosecution also called friends of Ms Sparks, whom Ms Sparks spoke to about the alleged offence shortly after the time of the offending, as well as the informant. The recording of the pretext call was also played and the jury was provided with a transcript of the call.
The applicant did not give evidence. However, a number of his friends and colleagues gave evidence as to his character. His wife also gave evidence.
At an early stage, senior counsel for the applicant identified that the key issues were whether the applicant penetrated Ms Sparks’s vagina with his penis and also the applicant’s belief as to Ms Sparks’s consent. The closing address focused particular attention on the penetration element.
Given the relatively confined terms of the proposed grounds, it is only necessary to summarise the key parts of the evidence of Ms Sparks and Ms Jarrett, as well as the pretext call.
The evidence of Ms Sparks was that on 25 January 2009 she joined Ms Jarrett and the applicant for dinner and drinks at a pub. At around 11 pm, the applicant and Ms Jarrett suggested that Ms Sparks go back to the applicant’s home with them, which she did.
Ms Sparks’s evidence was that both the applicant and Ms Jarrett suggested that Ms Sparks sleep in bed with them so that they could comfort her as she was upset about the recent loss of a pet. Ms Sparks was uncomfortable with this proposal, but the applicant offered her some pyjamas and said he would sleep on the furthest side of the bed with Ms Jarrett in between. After the three got into bed, Ms Sparks began to feel uncomfortable, because there was ‘something happening’, although she could not now recall what that was. She jumped out of bed and said that she wanted to go home. However, the applicant and Ms Jarrett suggested she go to sleep in the front spare room, which she then did.
Ms Sparks stated that she was awoken by being kissed on the lips. After she realised that it was the applicant, she told him to ‘go away’, and rolled to her side. He said: ‘it’s okay. [Tori] knows’. The applicant then put his hands under the doona, grabbed her by her hip and rolled her onto her back. Meanwhile, Ms Sparks was saying ‘[s]top, no, go away’ the ‘whole time’. She said that the applicant was pulling her pants down while his face was on top of hers and she was on her back. She tried to push his hand away and told him to stop and he then ‘grabbed [her] hand and pulled one hand back’. He pulled her pants down and used his legs to open her legs, and she felt his penis go into her vagina. He thrust in and out while she was screaming for him to stop. She was continuing to tell the applicant to stop, when Ms Jarrett entered the room and began screaming at the applicant. Ms Jarrett told the applicant to ‘[g]et off her’ and said he was ‘raping her’. She was not sure whether Ms Jarrett pulled the applicant off her, or whether the applicant just ran away. She and Ms Jarrett then caught a taxi to Ms Sparks’s house and both stayed the night there.
Ms Sparks’s evidence was that she complained to a friend the next morning and three other friends shortly after.
Ms Jarrett gave evidence that on 25 January 2009 she attended a hotel in Albert Park with Ms Sparks and some others, at about 8 pm. She said that the applicant arrived and met her there. Her evidence was that she (alone) invited Ms Sparks to the house. Once at the house she also asked if Ms Sparks wished to stay, and then Ms Sparks asked if the applicant could provide her with pyjamas, which he did. They all then proceeded to get into bed and there was a bit of giggling and laughing. At some point, after some conversation, the applicant began to touch Ms Jarrett sexually, and Ms Sparks jumped out of the bed, saying ‘I’ll leave you two lovebirds to it’. Ms Jarrett suggested that Ms Sparks stay in the front spare room and Ms Sparks thereupon left and went into that spare room.
Ms Jarrett’s evidence was that after Ms Sparks left the bedroom, she and the applicant had consensual sexual intercourse, during which she climaxed, although the applicant did not ejaculate. The applicant got out of the bed with an erect penis and went to the ensuite, where he remained for around 15 minutes. By the time he came out of the ensuite, she was falling asleep. The applicant then walked to the bedroom door. At this point she asked the applicant where he was going and he told her to go back to sleep before leaving the room.
Ms Jarrett said that she was awoken by ‘murmuring noises’ and the sound of three ‘loud noes’. She went to the spare bedroom and saw the applicant naked on top of Ms Sparks ‘moving back and forth on top of her’. When she first saw Ms Sparks her pyjama pants were pulled down past her knees and her pyjama top was pulled up. She heard Ms Sparks say ‘no’ twice after she entered the room and she yelled at the applicant ‘[g]et the fuck off of her. I’ve heard her say … “no” … five times now, and she’s still saying “no”. Get off of her’. She then pulled the applicant off Ms Sparks, who was very upset. She and Ms Sparks then travelled to Ms Sparks’s house by taxi. The next day Ms Jarrett asked Ms Sparks if the applicant had penetrated her vagina and she said that he had.
Both women were cross-examined about inconsistencies between them, including about who invited Ms Sparks back to the applicant’s house and the circumstances in which Ms Sparks went to the spare room. As will be explained, below, a serious challenge was also made to the reliability of their accounts, having regard to the alcohol that they had consumed.
We turn next to the pretext call (which occurred in April 2019). At the commencement of the call Ms Sparks indicated that she needed to ‘resolve’ the issue of ‘what happened’, of what the applicant did to her when he raped her about 10 years ago. The applicant responded by saying ‘look, your recollection of events and mine are perhaps not the same’, but that he was happy to sit down and talk to her. In response to the suggestion that she was in a separate bedroom and that he walked in while she was asleep, he stated: ‘Well, we’d actually all been in bed together, as you might recall … And I know we’d all had a — a — a large amount of alcohol’.
The exchange later continued:
[Ms Sparks]: And I just need to understand need to understand what was going through your mind. I mean - - -
[Applicant]: Well, I think — look, I — I can’t recall what was going through my mind but I remember, you know, that we — we were all seriously intoxicated. I know that we were — the three of us were in bed together, I know that there were various things happening and various, you know, things happened. And I do recall that you moved to the front bedroom. And I remember then coming to join you in that bed and — and talking to you. And — and obviously we — it was — it was intimate and I’m certainly not denying any of that.
[Ms Sparks]: Nigel, this is - - -
[Applicant]: And I — I had — sorry?
[Ms Sparks]: I was asleep.
[Applicant]: Yeah. But obviously when I came into the room, you may have been asleep but you weren’t asleep for very long. Look, as I said — look, I don’t want to have a conversation on the phone because I think that your recollection and mine may be slightly different. I’m not denying it was perhaps, in hindsight, inappropriate, I’m not suggesting it wasn’t.
The applicant also went on to say that it was at a time of life when, ‘you know, we were irresponsible’.
The applicant later denied the suggestion that he had penetrated Ms Sparks but agreed that what he did was ‘inappropriate’. Ms Sparks then asked the applicant why he thought his conduct was inappropriate and the following exchange occurred:
[Applicant]: It — it — it was inappropriate, there’s no doubt about that.
[Ms Sparks]: What made it so - - -
[Applicant]: It was inappropriate.
[Ms Sparks]: What — what made it so inappropriate then?
[Applicant]: Well, no, because, I mean, we shouldn’t have been in that bed together, you know, you should never have come into my bed in the first place. I mean, it should never have happened that the three of us were in bed together, all of that’s inappropriate.
[Ms Sparks]: And was it inappropriate for you to walk into another room when I was asleep and - - -
[Applicant]: Well, look - - -
[Ms Sparks]: Do you not think that that was not [sic] inappropriate?
[Applicant]: Well, look, I — I recall that even when you were in my bed, there was a degree of intimacy between us. You — and — and that’s — that’s — that’s the truth of the matter. Whether I took that to be - - -
[Ms Sparks]: What was…
[Applicant]: Whether that — look, whether that took — whether I took licence because of that, when you moved into the front room - - -
When the applicant was then asked by Ms Sparks why she would move into the front room, the applicant said:
[Y]ou wanted to give [Tori] and I more privacy. And I remember that [Tori] and I were, you know, having intercourse and you said, ‘Oh, I think I’ll leave you two to it,’ and — and, you know, that was that. But, look, I — I — I’m sorry that you feel the way you do and I’m — and I’m sorry that it’s caused you distress. I’m not for a moment denying inappropriate behaviour on that evening and — and I’m sorry that — that you’re distressed by it. I was very uncomfortable with it, in hindsight … .

Proposed ground 2: alleged failure to provide an ‘other misconduct’ direction

It is convenient to consider proposed ground 2 first, consistent with the emphasis placed on the proposed ground by the applicant’s counsel at the hearing, as well as the order in which the judge gave her relevant directions.

The judge’s directions

Prior to the addresses, senior counsel for the applicant provided a typed list of jury directions which were sought on behalf of the applicant. In respect of the admission made about inappropriate conduct, the applicant asked for a ‘Burns direction’[5] and submitted that, given the ambiguity of the comments made, the jury should be directed to only use the evidence ‘to assess the general relationship between the parties, such as to show that a sexual relationship existed’. No further relevant direction was sought, in particular no direction in relation to ‘other misconduct evidence’ was sought under s 27 or s 29 of the Jury Directions Act 2015 (‘JDA’) though counsel did indicate that further consideration may need to be given to the directions having regard to the prosecution closing submissions.
[5]Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21.
In closing submissions, the prosecutor referred to the part of the pretext call where the applicant indicated a belief that there was consensual ‘intimacy’ in the bed from which the applicant might have taken licence to engage in sexual activity with Ms Sparks in the front bedroom. The prosecution submitted that this was not a reasonable belief, and highlighted that the applicant had acknowledged that Ms Sparks had left the bed, which indicated that she did not want to share in the sexual activity between the applicant and Ms Jarrett. The prosecutor then submitted:
So for him to say look, I took licence or permission to do something intimate next door because we were having consensual sexual activity in that bedroom. He says he and [Jarrett] were having full blown sexual intercourse when [Marie Sparks] was in the bed before she jumped out. So that’s the way the prosecution argues about how you should deal with his comments about he took licence to go into the bedroom and have some sexual intimacy with [Marie Sparks].
The prosecutor also submitted that the admission of inappropriate behaviour in the pretext call was not confined to what occurred in the bed ‘between the three of them’, but extended to what occurred when the applicant was in the front bedroom.
After the prosecutor’s closing (at 2:54 pm), the applicant’s counsel raised concerns that there had been a conflation of sexual assault, sexual abuse, inappropriate behaviour and sexual penetration without consent, when this was a case concerning a specific offence of rape. Counsel asked the trial judge to tell the jury immediately that the case was strictly about the elements of the offence presented by the prosecution, and was not a case of sexual assault, sexual abuse or inappropriate behaviour. Counsel also asked the trial judge to include in her directions a direction that there were no admissions by the applicant to the elements of the offence.
The judge shortly afterwards (at 3:17 pm) then reminded the jury that this was a case about whether the applicant was charged with one offence only, the offence of rape, and that it was not a case about a sexual assault, sexual abuse or other inappropriate sexual behaviour.
In his closing, defence counsel also highlighted the judge’s reminder that this was not a case of sexual assault, sexual abuse or sexual assault, but a case of rape.
After the defence closing, the judge sought the assistance of counsel in relation to how the jury should be directed regarding the applicant’s admission in the pretext call. The trial judge read out a form of the direction she proposed to give, and no issues were raised about the proposed direction by counsel.
The judge commenced her charge by setting out some basic principles, including that the jury were to decide the case based on the evidence, and not on feelings of sympathy or prejudice.
The judge subsequently gave the following direction to the jury which was in the form which had been expressly approved earlier by counsel:
In this case you heard evidence that when Nigel Gaunt spoke to [Marie Sparks] he admitted that what happened was inappropriate or irresponsible. The prosecution says that this evidence is relevant because the accused admitted to engaging in inappropriate behaviour, both in his bed in the presence of [Ms Jarrett] and later with the complainant in the spare room. The prosecution does not submit that what was said by Mr Gaunt is an admission of the alleged or the charged act.
It is not disputed that Mr Gaunt admitted that what happened was inappropriate and irresponsible. You can only use this evidence in your assessment of the relationship between the parties at the time. That is, in your assessment of whether any sexual activity occurred between the complainant and the accused that night in light of his admission that what happened was inappropriate. I direct you that you cannot use this evidence as an admission by Mr Gaunt of any of the elements of the charged act of rape.
For you to act on Nigel Gaunt’s admission that what happened was inappropriate and/or irresponsible, I direct that you must accept that the accused’s admission was truthful. This requires you to accept that when Nigel Gaunt said that what happened was inappropriate and that there was ‘a degree of intimacy between us’, he meant to admit that he and the complainant engaged in some form of sexual activity in the spare bedroom and that he had meant to admit that it was inappropriate and that this admission was in fact true, but I repeat, you cannot use the responses Nigel Gaunt gave in that conversation as an admission to any element of the charged act of rape.

The judge also directed the jury that the applicant’s answers did not alter the burden of proof and that the applicant’s answers could be used as part of the evidence led in the prosecution case. She later returned to the pretext call, directing the jury that they should consider ‘the entirety’ of the conversation during the pretext call, along with ‘all the other evidence’ led by the prosecution in deciding whether the prosecution had proved its case beyond reasonable doubt in relation to each element.

Applicant’s submissions

In written submissions, the applicant contended that his admission that he engaged in inappropriate behaviour fell to be considered as an admission to ‘uncharged inappropriate conduct’.
The applicant highlighted various aspects of the prosecutor’s closing submissions identified above, as well as the evidence of Ms Jarrett to the effect that after she had sexual intercourse with the applicant and climaxed, the applicant had not ejaculated and still had an erect penis before joining Ms Sparks in the spare room. The submission was that, ‘in these circumstances’, there were substantial and compelling reasons for the jury to be directed about the permitted use and the impermissible use of the evidence. The applicant cited s 27 of the JDA.
The applicant accepted that he had a ‘heavy burden’ in attempting to establish a substantial miscarriage of justice given highly experienced counsel had not requested such a direction.[6] However, he submitted that the jury may well have interpreted the admission of inappropriate behaviour as constituting an admission of various kinds of ‘inappropriate sexual activity’, as well as ‘a willingness to satisfy [his] sexual interest and arousal by engaging in penile penetration’.
[6]The applicant cited Quinn(a pseudonym)v The Queen (2018) 272 A Crim R 146, 168 [94] (McDonald AJA); [2018] VSCA 82 (‘Quinn’).
The applicant submitted that the risk that the jury would misuse the evidence in the absence of a ‘suitably crafted “other misconduct” direction’ remained extremely high.[7]
[7]The applicant cited ibid 166–7 [87]–[89] (McDonald AJA) and Ritchie (a pseudonym) v The Queen [2019] VSCA 202, [125]–[128] (Kaye, Weinberg JJA and Kidd AJA).
In oral submissions, senior counsel (who did not appear at the trial) made reference to an array of evidence which was said to constitute evidence of ‘other misconduct’, which extended to ‘what did happen’ in both rooms. Particular matters that were said to constitute ‘highly distasteful, discreditable conduct’ included the evidence that the applicant had sexual contact with Ms Jarrett (referred to by the prosecutor as ‘full-blown intercourse’) so close to Ms Sparks, causing her distress and resulting in her leaving the main bedroom; the evidence that after having sex with Ms Jarrett, and having not climaxed, the applicant left the main bedroom naked and with an erection; and the evidence that the applicant then entered the spare bedroom naked and kissed Ms Sparks. Counsel pointed to the applicant’s own admission that what had happened was ‘inappropriate’.
In the light of the ‘graphic nature of the evidence’, and admission of ‘inappropriate uncharged sexual activity’, the applicant’s submission was that an ‘other misconduct evidence’ direction was necessary. He submitted that there were substantial and compelling reasons for a direction not just under s 27, but also under s 29, of the JDA. This was despite the fact that s 29 had not been cited in the applicant’s written submissions, nor had any ‘other misconduct’ direction at all been requested at trial.
At various times counsel appeared to suggest that the evidence of the applicant’s ‘distasteful, discreditable conduct’ was also ‘classic tendency’ evidence for the purposes of paragraph (b) of the definition of ‘other misconduct evidence’ in s 26 of the JDA. In the result, however, he submitted that the evidence was evidence of ‘other discreditable acts’ for the purposes of paragraph (c) of that definition. He submitted that the judge should have given a direction under s 29 that the jury not use the evidence as part of tendency reasoning.
Over the course of his submissions, the applicant posited various ways the evidence might impermissibly result in tendency reasoning. The tendency the jury might adopt included a tendency to fulfil a ‘sexual interest’, as well as a tendency to satisfy a ‘sexual desire’ once aroused. The ultimate submission was that there was a high risk that the jury would think that the applicant, having started his ‘sexual journey’ that night with one partner, and not having ‘got to the finish’, was ‘going in to finish that journey with the next partner’. This was said to be ‘classic tendency reasoning’.

Respondent’s submissions

The respondent submitted that the applicant had not engaged with the directions given at the request of defence counsel, nor identified what was said to be erroneous about those directions.
The respondent highlighted that, given an ‘other misconduct evidence’ direction was not requested by defence counsel (under s 27 or s 29), the trial judge could not give such a direction unless there were ‘substantial and compelling reasons’ for doing so pursuant to s 16 of the JDA. This is a stringent test intended to be exercised in very limited circumstances, for example, if counsel is incompetent.[8]
[8]Dunn (a pseudonym) v The Queen [2017] VSCA 371, [82] (Maxwell P, Beach and McLeish JJA), quoting Dunn (a pseudonym) v The Queen [2017] VSCA 95, [22] (Tate JA).
In oral submissions, senior counsel emphasised that there were two opportunities for such a direction to be requested; first, when defence counsel provided the formal written request for directions; second, when counsel sought the specific direction after the prosecutor’s address. The direction given was in accordance with the request and was favourable to the applicant.
The respondent submitted that there were no ‘substantial and compelling reasons’ for the giving of any further direction and that the various ways the applicant claimed that the jury might have impermissibly used the evidence simply did not arise in light of the direction given. The trial judge had explained to the jury how the prosecution said the evidence of the applicant’s admission to inappropriate behaviour was relevant. She told them the only way in which they could use that evidence and also expressly told them that they could not use the evidence as an admission to any of the elements of rape. In these circumstances, the judge did direct the jury about the permissible and impermissible use of that evidence. In identifying the way it would be impermissible to use the evidence, she also went further than what a direction under s 27 of the JDA required, given that s 27(3)(b) provides that the judge need not identify impermissible uses.
In oral submissions, senior counsel also submitted that the evidence of ‘inappropriate conduct’ did not constitute evidence of ‘other discreditable acts’ for the purposes of paragraph (c) of the definition of ‘other misconduct evidence’ in s 26. This was because it was evidence of sexual conduct that was intimately connected with the offending and formed part of the res gestae of the offending. It was not separate misconduct. Such acts were therefore ‘directly relevant’ to a fact in issue, being whether there was penetration, and hence outside the terms of paragraph (c) of the definition of ‘other misconduct evidence’.
The framing of the alleged tendency was also problematic since it meant that in every sexual assault case where there is evidence of the accused being aroused, a tendency direction would be necessary.

Consideration

(1)Relevant statutory framework

Part 3 of the JDA contains detailed provisions to ensure that legal practitioners discharge their duty to assist a trial judge to determine the directions which should be given to a jury. Pursuant to s 12, the prosecution and defence counsel must request particular directions be given or not given after the matters in issue have been identified. Subject to s 16, the judge must not give a direction that has not been requested under s 12.[9] Pursuant to s 16, the judge must only give the jury a direction that has not been requested if the judge considers that there are ‘substantial and compelling reasons’ for doing so.
[9]Jury Directions Act 2015 s 15.
Part 4 of the JDA outlines various possible evidential directions which may be sought, while Division 2 of that Part makes specific provision for the directions that may be sought in respect of ‘other misconduct evidence’. The concept of ‘other misconduct evidence’ is defined in s 26 as follows:
other misconduct evidence means—
(a) coincidence evidence; or
(b)tendency evidence;[10] or
(c)evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or
(d) evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed.
[10]Section 26 defines ‘tendency evidence’ to have the same meaning as in the Evidence Act2008. Part 1 of the Dictionary contained in the Evidence Act2008 defines tendency evidence as ‘evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection’.
As indicated already, the applicant relied upon paragraph (c) of the definition in this case.
Sections 27 and 29 then identify two possible directions which may be requested under s 12 as follows:
27Direction on other misconduct evidence adduced by the prosecution
(1) Defence counsel may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution.
(2)In giving a direction referred to in subsection (1), the trial judge must—
(a)identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and
(b)if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and
(c)direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.
(3)In giving a direction referred to in subsection (1), the trial judge need not—
(a)explain further what the jury should consider in deciding whether to use the other misconduct evidence; or
(b)identify impermissible uses of the other misconduct evidence; or
(c)refer to any other matter.
29Direction to avoid risk of improper use of other misconduct evidence
(1) If other misconduct evidence (other than tendency evidence) is adduced, the prosecution or defence counsel may request under section 12 that the trial judge warn the jury not to use the evidence as tendency evidence.
(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as tendency evidence.
(2)Analysis
As the applicant acknowledged, he carries a ‘heavy burden’ to establish that there were ‘substantial and compelling reasons’ for a judge to give a direction which was not requested, in circumstances where highly competent and experienced senior counsel approved a specific form of direction and later chose not to seek any further or amended form of direction, despite having ample opportunity to do so.
In Dunn (a pseudonym) v The Queen, this court stated:
The language of s 16 of the JDA 2015 is a good deal more stringent than that of its predecessor. This was, plainly enough, a deliberate choice by the legislature. As Tate JA said in Dunn (a pseudonym) v The Queen:
The ‘substantial and compelling reasons’ test was introduced in order to simplify and clarify the circumstances in which a trial judge might give a jury direction, notwithstanding that neither party sought one. The new provision requires that the parties have an opportunity to provide submissions on why a direction should or should not be given thereby ensuring that ‘appropriate weight is given to the forensic decision making of the parties’, and as a safeguard to protect the rights of the accused. It was anticipated that a judge would exercise the power under the new test ‘in very limited circumstances, for example, if counsel is incompetent.’ There is no suggestion of that type here.[11]
[11]Dunn (a pseudonym) v The Queen [2017] VSCA 371, [82] (Maxwell P, Beach and McLeish JJA), quoting Dunn (a pseudonym) v The Queen [2017] VSCA 95, [22] (Tate JA) (citations omitted).
Such caution is well illustrated in the current case where, had the direction been sought, counsel would have been expected to assist the judge by identifying with precision the evidence of ‘acts’ said to constitute the ‘other misconduct evidence’, as well as the way the jury might improperly use that evidence. This task was not, of course, undertaken at the trial given that no such direction was sought. It is undesirable that this task be undertaken for the first time on appeal, particularly given there remained some ambiguity about the precise nature of the direction sought.
In any event the applicant’s complaints are misconceived.
Taking one of the ‘discreditable acts’ identified as an example, the applicant’s act of kissing Ms Sparks whilst naked was clearly ‘directly relevant’ to a fact in issue, being whether penetration occurred. Such sexualised conduct immediately prior to the alleged offending could directly affect the assessment of the probability of whether penetration then followed. We also consider any sexual activity in the main bedroom immediately prior to the offending to be directly relevant, particularly given the short time frame between the activity in the two bedrooms (of some 15 minutes). To adopt and adapt language derived from Dixon J in O’Leary v The King, without evidence of what occurred in both bedrooms, ‘the transaction of which the alleged [rape] formed an integral part could not be truly understood’.[12] To put it another way, the evidence of what occurred in both rooms formed ‘constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued’.[13]
[12](1946) 73 CLR 566, 577; [1946] HCA 44 (‘O’Leary’). Evidence that forms part of the res gestae has been described as evidence that ‘directly relates to the facts in issue’, in contrast to evidence that is ‘merely circumstantial’: see Harriman v The Queen (1989) 167 CLR 590, 632–4 (McHugh J); [1989] HCA 50, quoted in R v Mostyn (2004) 145 A Crim R 304, 325 [129]–[133] (McColl JA, Studdert J agreeing at 330 [166], Howie J agreeing at 330 [168]); [2004] NSWCCA 97 and PIM v Western Australia (2009) 40 WAR 489, 540 [241] (Buss JA); [2009] WASCA 131.
[13]O’Leary (1946) 73 CLR 566, 575 (Latham CJ); [1946] HCA 44, citing Martin v Osborne (1936) 55 CLR 367, 375 (Dixon J, Latham CJ agreeing at 370); [1936] HCA 23.
In such circumstances we consider the evidence of the acts said to be ‘discreditable acts’ in both bedrooms to be ‘directly relevant’ to a fact in issue. Contrary to the submissions of the applicant, it thereby falls outside paragraph (c) of the definition of ‘other misconduct evidence’ contained in s 26.
However, even if the evidence is characterised as ‘other misconduct evidence’ (by reason of being not ‘directly relevant’ to a fact in issue, and/or by reason of being context evidence within paragraph (d) of the definition),[14] there were no cogent reasons for giving a direction under s 27 or s 29, and certainly no ‘substantial and compelling’ reasons.
[14]Given the prosecution did not seek to rely on the evidence for a tendency purpose it could not be ‘tendency evidence’ pursuant to the definition cited above at footnote 10.
First, in relation to s 27, the judge’s directions in relation to the applicant’s admission to inappropriate behaviour in the pretext call were compliant with s 27 in any event. In directions that were approved by the applicant’s senior counsel, the judge identified how the evidence was relevant and made it clear that the jury could ‘only’ use it in the way she identified. She also directed the jury to consider the entirety of the pretext call and made it clear that the evidence should be considered together with all the evidence led by the prosecution. She therefore directed in accordance with the requirements of s 27(2)(a) and s 27(2)(b) in any event. Further, the judge directed the jury not to decide the case based on prejudice, in compliance with s 27(2)(c). As the respondent submitted, in directing the jury that the evidence did not constitute evidence of an admission to any of the elements of rape, the judge went further than required under the terms of s 27(3)(b).
Although the judge’s directions concerned the applicant’s admission to inappropriate behaviour, they also operated to reduce the risk that the jury would impermissibly use evidence of the actual behaviour itself, including by deciding the case based on prejudice.
Next, the (belated) reliance on s 29 was also unhelpful for three reasons. First, some generalised tendency to ‘complete a sexual journey’ could hardly be probative of the critical issue as to whether the applicant penetrated Ms Sparks in January 2009. Second, the evidence did not support the existence of any tendency or disposition to ‘complete a sexual journey’ in any event given that (as the applicant emphasised) the applicant had not in fact ‘finished’ his journey because he had not ejaculated with Ms Jarrett. This in fact highlights the (third) most significant problem with the applicant’s submissions. That is that it was highly unlikely that the jury might reason that the applicant had a tendency or disposition to act in any particular way in the past, or on some other occasion. This was because, for reasons already identified, the jury had an admission that the applicant had in fact behaved inappropriately as part of, and leading up to, the offending against Ms Sparks. Evidence that forms part of the same connected series of events as the offending is not evidence of a particular disposition, or propensity, such as to warrant some direction against tendency reasoning.[15]
[15]See R v Adam (1999) 106 A Crim R 510, 516 [30] (Spigelman CJ, James and Bell JJ); [1999] NSWCCA 189; R v Player (2000) 217 ALR 578, 580–1 [13]–[17] (Smart AJ for the Court); [2000] NSWCCA 123, where similar reasoning was adopted.
There was hence no substantial risk that the jury might use the acts committed by the applicant in the lead up to the offending as tendency evidence. In such circumstances, it might be expected that, consistent with the approach of experienced counsel, it would be imprudent to reinforce any inappropriate conduct by highlighting some illusory ‘tendency’.
This case is also clearly distinguishable from that of Quinn (a pseudonym) v The Queen,[16] where the majority found that the case ‘cried out’ for a strong tendency warning in the circumstances of that particular case.[17] For the reasons we have given, that is not the position in this case.
[16](2018) 272 A Crim R 146; [2018] VSCA 82.
[17]Ibid 155–6 [37] (Weinberg and Priest JJA).
Proposed ground 2 is devoid of merit.

Proposed ground 1: alleged failure to direct that jury could take the applicant’s intoxicated state into account in considering if he had a belief in consent

The judge’s directions

As indicated already, the judge referred to the pretext call in her charge.[18] She also clearly identified that the element of the offence concerning the applicant’s state of mind about Ms Sparks’s consent was in dispute. The judge gave a series of directions about this element (being the fourth element of the offence). She commenced by stating:
The fourth element relates to the accused’s state of mind about the complainant’s consent. The prosecution must prove beyond reasonable doubt that at the time of the sexual penetration, the accused was aware that the complainant was not or might not be consenting or, was not giving any thought to whether the complainant was not or might not be consenting.
If the prosecution fails to prove to you, beyond reasonable doubt, that Nigel Gaunt had one of these three states of mind about the complainant’s consent, then you must find this element has not been proved and you must find the accused not guilty of this offence.
In considering whether the prosecution has proved that Nigel Gaunt was aware [Marie Sparks] was not consenting or might not have been consenting to the penetration, you must consider any evidence that the accused believed that the complainant was consenting and whether this gives rise to a doubt about whether he was aware [Marie Sparks] was not, or might not be consenting.
…
In this case, the defence argue that if you are satisfied beyond reasonable doubt that there was sexual penetration, then at the time of this sexual act Nigel Gaunt believed that [Marie Sparks] was consenting to the sexual act.
[18]See above [37].

The trial judge then gave directions clarifying that the law did not require the accused’s state of mind about Ms Sparks’s consent to be reasonable, and went on to say:
An unreasonable belief that is genuinely held can raise a reasonable doubt about this element. In considering the accused’s state of mind you will also consider whether … the evidence of the accused saying words to the effect, ‘It’s all right, [Tori] knows’ when [Marie Sparks] asked what he was doing, sheds any light on his state of mind at the time. You will also have regard to the account given by Nigel Gaunt in his conversation with [Marie Sparks] including where he said, ‘We were all intoxicated’ and that in retrospect what occurred was ‘inappropriate’.

Applicant’s submissions

The applicant highlighted that, although the form of the current JDA contains a direction as to the irrelevance of self-induced intoxication (under s 47(3)(b)) this provision did not apply to trials of offences allegedly committed before 1 July 2015.
The applicant acknowledged that the judge gave the relevant consent directions set out in the Charge Book. However, he submitted that the judge’s charge contained no reference to the issue of intoxication and its relevance to belief in consent.
The applicant submitted that the directions given by the judge were inadequate when compared with the more detailed type of direction contemplated in R v MC[19] and Khan v The Queen (‘Khan’).[20] Such a direction would alert the jury to the potential for intoxication to lead to a mistaken belief in consent and the need to consider that potential. The applicant characterised the relevant consent direction given as ‘[r]eminding the jury of certain evidence’, rather than ‘providing the jury with a direction of law’.
[19][2009] VSCA 122, [68]–[71] (Coghlan AJA, Nettle JA agreeing at [1], Dodds-Streeton JA agreeing at [2]).
[20][2011] VSCA 282, [85]–[87] (Tate JA, Buchanan JA agreeing at [1], Redlich JA agreeing at [2]) (‘Khan’).
The applicant also submitted that it was hard to know what the jury would have made of the judge’s reference to the applicant’s statement in the pretext call that what had occurred was ‘inappropriate’, given that the judge had already directed the jury that the pretext call did not involve any admission as to any element of the charged offence.
In oral submissions, counsel placed particular reliance on Khan as a model direction. He submitted that the judge should have made reference to the applicant’s statements in the pretext call about his intoxication and stated that, as a matter of law, intoxication was a circumstance they could take into account in assessing whether the applicant had a belief that Ms Sparks was consenting. He submitted that they were also required to be directed that: ‘[t]he law recognises that persons who are inebriated can come to a mistaken impression in respect to issues of consent’.

Respondent’s submissions

The respondent submitted that proposed ground 1 rested upon an incorrect premise because the jury were in fact directed to take into account the (limited) evidence about the applicant’s intoxication when considering his state of mind.
The respondent’s submission was that the relevant direction accurately stated the law, referred to the (limited) evidence of the applicant’s intoxication adduced at trial, and related that evidence to the issue of the applicant’s state of mind. The directions complied with the requirements of ss 37 and 37AA of the Crimes Act 1958, and no redirection was sought by experienced defence counsel. Given the lack of evidence on the issue, it was difficult to see how any additional direction would have advanced the applicant’s case.
In oral submissions, counsel also submitted that there may have been good forensic reasons for not seeking further directions about intoxication given they may have served to highlight that the applicant was more likely to act in an uninhibited way.

Consideration

(1)Legal framework

As accepted by both parties, the relevant applicable provisions were s 37(1) and 37AA of the Crimes Act 1958, as in force at the time of the offending.[21]
[21]Crimes Act 1958 ss 37(1), 37AA, as at 17 December 2008. Sections 37(1) and 37AA have been subsequently repealed by s 7(3) of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, but continued to apply to the applicant’s trial because the offence was committed prior to the commencement of that section (see the transitional provision in s 626(1) of the Crimes Act 1958).
Section 37(1) provided that, if relevant to the facts in issue in a proceeding, the judge must direct the jury on matters set out in s 37AA. Section 37(3) required the judge to relate any direction of the kind referred to in s 37AA to the facts in issue in the proceeding and the elements of the offence in respect of which the direction was given, so as to aid the jury’s comprehension of the direction.
Section 37AA relevantly provided:
For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider—
(a) any evidence of that belief; and
(b)whether that belief was reasonable in all the relevant circumstances having regard to—
…
(iii) any other relevant matters.
(2)Analysis
As indicated already, in the pretext call the applicant stated that ‘I know we’d all had a … large amount of alcohol’ and that ‘we were all seriously intoxicated’. However, there was otherwise very little other evidence about the applicant’s level of intoxication.
Thus, Ms Sparks’s evidence was that she didn’t feel overly drunk; though she felt tipsy. She could not recall what she was drinking or what everyone else was drinking. She was cross-examined at some length about the extent to which she was intoxicated. More particularly, it was suggested that alcohol had affected her appreciation of what was happening and her memory. However, she was not cross-examined about the applicant’s alcohol intake, nor was it suggested, for example, that the applicant was visibly affected in any way by alcohol.
Ms Jarrett gave evidence that the group at the hotel were buying drinks in rounds, which included Ms Sparks. She did not recall whether the applicant was drinking alcohol. Her evidence was that she was ‘inebriated’. She did not recall Ms Sparks having problems with walking, nor did she recall the applicant having any issues walking home. Under cross-examination, she was expressly asked to leave the applicant to one side when answering a question as to whether the group of friends at the hotel had had a lot to drink, but said that she couldn’t say that everybody was inebriated.
Early in the trial, counsel for the applicant suggested to the judge that alcohol had a ‘wider relevance in terms of Mr Gaunt’s belief and the way in which he may be behaving’. However, there was otherwise little, if any, reference to alcohol affecting the applicant’s belief in Ms Sparks’s consent. Rather the emphasis was on the drinking of Ms Sparks and Ms Jarrett insofar as it affected the reliability of their recollections.
Despite the paucity of the evidence it may be accepted that, at least, an ‘assertion’ was made that the applicant believed that Ms Sparks was consenting for the purposes of s 37AA. The judge was accordingly bound to direct the jury to consider any evidence of the belief and whether that belief was reasonable having regard to ‘any other relevant matters’. She was further bound to relate any such direction to the facts in issue in the proceeding and the elements of the offence under s 37(3).
It can be readily seen that, despite the paucity of the evidence, the judge did exactly that.
Thus, after identifying that the ‘fourth element’ related to the applicant’s state of mind about consent, the judge correctly stated that in considering whether the prosecution had proved that the applicant was aware that the complainant was not, or might not be, consenting, they needed to consider ‘any evidence’ that the applicant believed that Ms Sparks was consenting. She later also stated that an unreasonable belief that was genuinely held could raise a reasonable doubt about ‘this element’; directed them to the entire account given by the applicant in the pretext call; and expressly stated that this included where the applicant said: ‘We were all intoxicated’.
The judge thereby clearly directed the jury to consider ‘any evidence’ of the applicant’s belief, expressly cited the evidence about intoxication, and related it to the disputed element as to the applicant’s state of mind about Ms Sparks’s consent.
In these circumstances, there was no basis for the applicant’s submission that the jury was not directed as to a relevant factor which could be legitimately taken into account in their consideration of the disputed issue (belief in consent).
Insofar as the applicant cited other authorities, we also found them of very limited assistance given that each case must turn on its own individual facts. This also applies in respect of the decision of Khan, upon which the applicant placed significant reliance. In that case the redirection (which was the subject of specific request) was similarly short in identifying the evidence which could be taken into account, and in relating that evidence to whether the Crown had proved that the accused did not have a genuine belief in consent.[22] Although the direction also made reference to evidence about the effect that the drug the accused was said to have taken can have on a person’s judgment, this was because, unlike in this case, there was specific evidence about that matter.[23]
[22]Khan [2011] VSCA 286, [86] (Tate JA, Buchanan JA agreeing at [1], Redlich JA agreeing at [2]).
[23]Ibid [35], [43], [57] (Tate JA, Buchanan JA agreeing at [1], Redlich JA agreeing at [2]).

The other matters raised by the applicant also do not assist him. The relevant provisions of the Crimes Act 1958 (ss 37(1) and 37AA) provide no justification for the suggestion that the judge should have made some extra statement about what the ‘law recognises’ about inebriated persons. We also do not consider that the judge’s reference to the applicant’s statement in the pretext call that what occurred was ‘inappropriate’ undermined her separate, clear reference to what the applicant had said in that call about his state of intoxication.
Proposed ground 1 is also rejected.

Conclusion

The application for an extension of time to seek leave to appeal the conviction will be refused.

---

[2024] VSCA 311

12 December 2024