Gul v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0174

HUSEYIN GUL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and PRIEST JJA, and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2017
DATE OF JUDGMENT:	22 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 153
RULING APPEALED FROM:	DPP v Gul (Unreported, County Court of Victoria, Judge Chettle, 31 May 2016 (Conviction))

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CRIMINAL LAW — Conviction — Application for leave to appeal — Rape and associated offences — Directed verdicts of acquittal on charges of rape and compelling sexual penetration — Whether judge erred in failing to instruct on use of evidence relating to charges subject of directed acquittal when considering remaining charges — Other misconduct evidence — Failure to give anti-propensity reasoning direction — No substantial and compelling reason to give direction — Jury Directions Act 2015 ss 16, 27 — Whether judge erred in not discharging jury following entries of acquittal — Whether directions on mental element of offences and consent adequate — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Morrissey SC	Garde-Wilson Lawyers
For the Respondent	Mr C Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
PRIEST JA:

Introduction

Following a trial in the County Court, on 31 May 2016 a jury convicted the applicant of indecent assault[1] (charge 3), rape[2] (charge 4) and making a threat to kill[3] (charge 5). In circumstances that we will later discuss, the judge directed the jury to acquit the applicant of rape (charge 1) and compelling sexual penetration (charge 2).[4]
[1]Crimes Act 1958, s 39.
[2]Crimes Act 1958, s 38.
[3]Crimes Act 1958, s 20.
[4]Crimes Act 1958, s 38A.

On 20 July 2016, the applicant was sentenced to a total effective sentence of five years and nine months’ imprisonment, with a non-parole period of three years.[5]
[5]On charge 3, the sentence was 18 months’ imprisonment; on charge 4, four years and six months’ imprisonment (being the base sentence); and on charge 5, 12 months’ imprisonment. Nine months of the sentence on charge 3, and six months of the sentence on charge 5, was ordered to be served cumulatively upon the sentence on charge 4.

Originally, the applicant sought leave to appeal on two grounds as follows:

1. The Learned Trial Judge erred by failing to instruct the jury concerning the use to which the evidence on charges 1 and 2 could be put.
2. The Learned Trial Judge erred by failing to discharge the jury, pursuant to section 241(2) of the Criminal Procedure Act 2009 (Vic), once the jury returned a verdict of not guilty on charges 1 and 2 by direction.

In the course of the hearing in this Court, counsel sought to amend grounds 1 and 2 (so as to reformulate them as set out below), and to add a new ground, ground 3:

1. The Learned Trial Judge erred by failing to instruct the jury concerning the use to which the evidence on charges 1 and 2 could be put;
(a)His Honour failed to give an ‘anti-propensity’ warning;
(b)His Honour failed to direct that the evidence on charges 1 and 2 could constitute no more than context evidence when considering charges 3, 4 and 5.

2. The Learned Trial Judge erred by failing to discharge the jury~~, pursuant to section 241(2) of the Criminal Procedure Act 2009 (Vic), once the jury returned a verdict of not guilty on charges 1 and 2 by direction~~ once his Honour ruled that there was no case to answer on charges 1 and 2.
3. The Learned Trial Judge erred by failing to adequately instruct the jury on two elements of Counts 1 – 4 (consent and the mental element).

For reasons that follow, we would refuse leave to amend grounds 1 and 2, and to add ground 3, and would refuse leave to appeal.

The evidence at trial

It is necessary to summarise the evidence in the trial.

‘MB’, the complainant, gave evidence that she met the applicant in August 2013, when she visited a club at which the applicant was employed as a ‘bouncer’. They enjoyed a relationship from August 2013 until early January 2014, when they broke up. Thereafter, MB spent time with the applicant in March, April and August 2014.

On Monday, 18 August 2014, MB went to the applicant’s house, where they ‘were hanging out with each other and smoking ice’. MB said that during that Monday she smoked ice ‘probably every hour’, but that the applicant ‘was using more’. The two conversed and had ‘intercourse’ in the applicant’s bedroom, and ‘it was fine’, MB having ‘no issue at that point of time’.

The next day, Tuesday, MB remained with the applicant, and they used ice ‘every hour’. MB said everything ‘was fine until Tuesday afternoon’, when ‘things became aggressive’ and the applicant accused her of ‘cheating’. The applicant slapped MB across the face and then put his arm around her neck, threatening to break it.

MB and the applicant went out on Tuesday night and returned at about 1.00 am on Wednesday, 20 August 2014.[6] In the early hours, they ‘started arguing and fighting again’. The applicant accused MB of cheating, called her a ‘fucking slut’ and spat twice in her face. MB ‘got really angry’ and spat back, into the applicant’s face. She apologised, however, after the applicant told her to leave his house. The applicant then said he was going to have a shower.
[6]It is not clear on MB’s evidence whether she and the applicant went out together on the Tuesday night, but she said: ‘We went back to his house about one in the morning, I think. Yes.’

After the applicant showered, he and MB were having sexual intercourse on the applicant’s bed until he became aware she was menstruating, said ‘Ew, yuck’ and ‘got off’ MB. She then went to the ensuite bathroom to clean herself.

When MB returned to the bedroom, and whilst she was on her back on the bed, the applicant put his legs either side of her shoulders and put his penis in MB’s mouth. She was ‘okay at this point’, but the applicant then said, ‘Lick my arse, bitch, this is payback’, and put his ‘bottom’ on MB’s face. MB moved to the lower part of the bed, and, after the applicant put her face down on her stomach, he turned her arm around and put two of her fingers into her anus (charge 2) as well as his own (charge 1). When asked by the prosecutor whether she consented to the applicant putting his finger in her bottom, to the prosecutor’s apparent surprise, MB said that she did. She said ‘that was fine’, but that she objected when the applicant wiped her fingers on her face.[7] MB said, ‘Yuck, don’t’ and ‘No, stop’.
[7]MB also gave evidence that the applicant put his ‘finger’ into her anus and ‘wiped it’ on her ‘left cheek’.

We pause to note that, given MB’s apparent acceptance that the activities founding charges 1 and 2 occurred with her consent, and that she only objected to what was occurring after the applicant wiped her fingers on her face, at the end of the prosecution case the judge told the jury that he would be directing them to return verdicts of not guilty on those charges when they delivered verdicts on the charges that were still ‘live’.

Returning to the evidence, MB said that after the applicant wiped her fingers on her cheek, the applicant then grabbed her by the hair and pulled her into the bathroom. She gave the following evidence with respect to charge 3, indecent assault:

[PROSECUTOR]: And then what happened?---And then he said, ‘Look in the mirror’, and, ‘You fucking prostitute’, as he was holding my hair, and then he pushed my head downwards towards his arse, and said, ‘Lick my arsehole’.
Where did your head end up in relation to his body?---I’m at his bottom.
Is he still holding on to you?---Yes.
On to your hair?---Yes.
And how did that feel then, him holding on to your hair?---It was very scary. I was really scared.
And so he said to, ‘Lick my arsehole’?---Yes.
What did you do?---I did.
And why did you do that?---Because of the way he held my hair very tightly.
Is that something that you wanted to do?---No.

With respect to charge 4, rape, MB’s evidence continued:

[PROSECUTOR]: Then what’s the next thing that has happened?---And then he pulled me up by my hair, pushed me on to the wall … with my back towards him on the wall, next to the sink.
Do you remember, were you saying anything at this time, do you know, if you remember?---‘Stop. I don’t want to do this’, and I just kept crying.
So you said before that you were crying when you went into the ensuite?---Yes.
Were you crying that whole time?---Yes.
And then what has happened?---And then, as he had me up against the wall, he stuck his penis in my arse.
And where did his penis go exactly?---Into my arsehole.
Is that something you wanted to happen?---No.
Did you agree to that happening?---No.
Do you remember if you were saying anything at the time that he did that? I just think I kept crying in a loud kind of way, and he just said, ’Shoosh. My parents will hear you’.
Where were his hands when he was doing this? What was he doing with his hands?---He had one hand holding my hair tightly, and then I’m not quite sure where his other hand was.
So he has put his penis into your anus. What did he do?---It went for — I don’t know — around 30 seconds. He ejaculated, and then he stopped. He let go of my hair.

MB gave the following evidence in support of charge 5, making a threat to kill, which is also relevant to the proposed additional ground 3:[8]

[PROSECUTOR]: So he has ejaculated. Then what did he do?---Then he walked out of the ensuite, and I sat on the toilet. I think he puts his pants on and walked out of his bedroom.
How long did you stay in that ensuite for?---A good ten minutes — five minutes.
Then what did you do?---Actually, when he went out of the room, I quickly put my clothes on and had my bag next to me. He came back into the room and was like, ‘You're not going’, and I was like, ‘You — you just raped me. I am going’.
Did he say something in response to that?---Yeah. He said, ‘Don’t play games, [complainant’s name]. As if. You wanted it. If you tell anyone about this, I will get a Asian [sic] to come murder your fucking parents’.
How did you react to that comment of his?---I was in complete shock.
What happened then?---Then he laid on his bed and passed out, and I ran out the door.

[8]Emphasis added.

MB said that she drove away from the applicant’s house and contacted her friend, ‘GG’, to tell her about the sexual assault. They then went to the police station to lodge a report, and MB was taken to the Royal Women’s Hospital for a medical examination.

GG gave evidence that MB contacted her at about 9.00 am on Wednesday. MB ‘said that [the applicant] had raped her anally and also forced her to lick his anus, and she also said that he had not let her leave afterwards’. They then went to the police station in the city to report the matter.

The complainant reported the incident to police shortly after. Police arrested the applicant on 21 August 2014. He effectively gave a ‘no comment’ interview.

The principal issue in the trial

As will become clear, it is of some significance that the defence went to the jury on the basis that the charged acts did not occur. The principal issue in the trial was whether MB could be believed. Although it was not contested that the applicant and MB had indulged in consensual sexual activity (including anal sex) at the applicant’s home in the time that they spent together before the Wednesday, the defence case was a denial that the charged activity ever took place. The defence case thus chiefly consisted of an attack on MB’s credibility. It was argued that the complainant’s description of details, and lack of injuries on her body consistent with the allegations, made it almost impossible for the jury to believe that events described by MB could have occurred. At no stage was it ever contended that any of the charged activity may have occurred but that it was consensual or that the applicant may have believed that it was consensual.

Indeed, that the real issue in the trial was whether MB’s evidence could be accepted is plain from the judge’s charge. Early in his charge, he told the jury:

The real issue in this trial can be summarised in one sentence: Are you satisfied beyond reasonable doubt that what [MB] told you about in relation to Charges 3, 4 and 5 occurred? I will come back to that later, but that is really the ultimate question for you. Did the conduct that she alleged occurred [sic] in relation to Charges 3, 4 and 5?

No exception was taken to this direction.

Proposed ground 3 — Consent

It is convenient to deal first with proposed ground 3, which, in our view, cannot be upheld.

As we have said, the defence case was that the charged activity did not occur. At no stage were either MB’s consent, or the applicant’s belief in consent, with respect to the charged activities ever put in issue by the defence.

During the course of oral argument in this Court, however, Croucher AJA raised with counsel for the applicant whether the applicant’s belief in consent should not have been left to the jury, given MB’s evidence[9] that, after she accused the applicant of raping her, the applicant said: ‘Don’t play games, [complainant’s name]. As if. You wanted it. If you tell anyone about this, I will get a Asian [sic] to come murder your fucking parents’.
[9]Above at [16].

Counsel for the applicant was thus prompted to seek to add what is now proposed ground 3. The Court indicated that it would consider the application. Leave was given to the parties to file further written submissions on the topic.

In the course of those further written submissions, although he accepted that trial counsel opened to the jury on the basis that ‘these things did not happen’, and he acknowledged that trial counsel at no stage sought a direction on consent or belief in consent, counsel for the applicant nonetheless contended that the judge should have directed on the applicant’s belief in consent: first, because of MB’s ‘dramatic admission’ that she consented to the digital penetrations which were the subject of charges 1 and 2; and, secondly, because of the evidence given by MB of the applicant’s statements immediately after she accused him of rape,[10] which, so it was argued, ‘raised the rational possibility, capable of acceptance by a properly directed jury, that the [applicant] positively believed in consent’.
[10]Above at [16] and [25].

We reject these submissions.

As we have mentioned,[11] early in the charge the judge told the jury what the ‘real issue’ was. Later, when directing on the elements of indecent assault, the judge instructed the jury:[12]

As to the fifth element, that is [the applicant’s] mental state. You would have to find that he was aware that [MB] was not consenting or may not be consenting or did not give any thought to as to whether she was consenting or not, and you would look at the surrounding circumstances, drawing an inference, as I said to you, in relation to that element.
Now, I could spend much more time going through each of those elements. I do not need to because it is common ground that if the events occurred each of the elements have been established. It is not a question of whether as a matter of law what he did constituted an indecent assault, the issue is whether or not you are satisfied beyond reasonable doubt that it actually happened, that is, whether you accept [MB’s] evidence that it happened.

[11]Above at [21].

[12]Emphasis added to this and following passages.

And when directing on the elements of rape, the judge said:

To prove this crime, the prosecution must prove four elements beyond reasonable doubt: [first], the accused man sexually penetrated the complainant in the way alleged; [secondly], the accused did this intentionally; thirdly, the complainant, [MB], did not consent to the sexual penetration; and fourthly, the accused had one of the following three states of mind about her consent — he was aware that she was not consenting, or was aware that she might not be consenting, or did not give any thought as to whether she was or was not consenting. Any of those three states of mind must be established.
Now again, there was no suggestion to you that if this happened, the offence of rape was not made out. Indeed, the cross-examination was to the point it did not happen. As simple as that. But you need to be aware of what the prosecution have to prove in any case is the elements of the offence. And you need to be satisfied beyond reasonable doubt that each of those four elements have been established.

No exception was taken to these directions.

Division 1 of Part 5 of the Jury Directions Act 2015 (ss 45 to 48) now prescribes the directions that must be given to a jury on consent and reasonable belief in consent in a trial for offences such as those charged in the present case. It came into operation on 1 July 2015, but, as Schedule 1 of the Act makes clear, it only ‘applies to a proceeding that relates to a charge for an offence alleged to have been committed on or after the commencement of that Division’. Since the applicant’s alleged offending occurred on 20 August 2014, the present suite of provisions in Division 1 of Part 5 had no application.

In the applicant’s further written submissions, it was contended with respect to charges 3 and 4 that the trial judge ‘should not have removed the issues of consent and of the mental element from genuine consideration’, and that ‘the trial judge ‘should have charged on these topics in accordance with ss 37(1), 37AA and 37AAA, and with reference to the relevant evidence’.

By the time of the applicant’s trial, however, ss 37, 37AAA and 37AA of the Crimes Act 1958 — which set out the jury directions required as to a complainant’s consent and an accused person’s belief in consent in trials for rape and indecent assault (and other sexual offences) — had been repealed by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, s 7(3).

Assuming — without, however, deciding — that ss 37, 37AAA and 37AA continued to have application at the time of the applicant’s trial, they do not avail the applicant.

Section 37AAA set out the directions required on consent, and s 37AA prescribed the directions required with respect to an accused’s belief in consent. But it is plain that the directions on consent and belief in consent only needed to be given if those matters were relevant to facts in issue in the proceeding. So much flows from s 37, which provided:[13]
[13]Emphasis added.

37 Jury directions
(1) If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA.
(2) A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding.
(3) A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to—
(a) the facts in issue in the proceeding; and
(b) the elements of the offence being tried in respect of which the direction is given—
so as to aid the jury's comprehension of the direction.

The reference to facts in issue in s 37 to is not an allusion to the elements of the particular offences or the ‘ultimate’ issues. As was made clear in Yusuf[14] (with respect to the forerunner of the iteration of s 37 now under consideration), the facts in issue referred to in the section are ‘the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence’.[15] It is only on those facts that a judge is required to give directions.
[14]R v Yusuf (2005) 11 VR 492.
[15]Ibid 502 [18] (Winneke P, with whom Charles and Chernov JJA agreed). See also R v Getachew (2012) 248 CLR 22.

In a similar vein, it was observed in Alford v Magee:[16]

And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.

[16](1951) 85 CLR 437, 466.

In the present case, the applicant’s belief in consent simply was not a fact in issue in the trial. The defence case on each of charges 3 and 4 was that the relevant activity did not occur. Nothing in ss 37, 37AAA or 37AA — assuming they were applicable — required a direction to be given on the applicant’s belief in consent because it was not a fact in issue.

Moreover, it will be remembered that s 11(b)(i) of the Jury Directions Act 2015 placed an onus on defence counsel to inform the trial judge whether each element of the offence charged — which for the purposes of charges 3 and 4 would embrace the applicant’s belief in MB’s consent — was or was not ‘in issue’. And s 12 placed an onus on defence counsel to request directions on ‘the matters in issue’ and ‘the evidence in the trial relevant to the matters in issue’. At no time, however, did the applicant’s trial counsel inform the judge that belief in consent was in issue, let alone request any direction on it (including on any evidence that may have related to it). Unequivocally and unmistakably, the defence case was that the charged activity did not occur. Thus, there were no ‘substantial and compelling reasons’ for giving a direction ‘even though the direction has not been requested under section 12’.[17]
[17]Jury Directions Act 2015, s 16(1).

Finally, although not critical to our consideration of the proposed ground, we observe that minds might differ about whether the statement attributed to the applicant — ‘Don’t play games, [complainant’s name]. As if. You wanted it. If you tell anyone about this, I will get a Asian [sic] to come murder your fucking parents’ — was evidence capable of raising belief in consent. Much would depend on inflection, punctuation and context. To some minds, the applicant’s threat to have an Asian come and murder the complainant’s parents if she told anyone about what had occurred does not sit comfortably with an assertion that he may have believed the activity to be consensual.

Our analysis of the written submission filed in support of ground 3 leads us to the conclusion that the proposed ground is without substance. Leave to add it, so as to rely on it, must be refused.

Ground 1 — Failure to direct on the evidence relating to charges 1 and 2

Both before and after its proposed amendment, ground 1 had a narrow focus. It was concerned solely with asserted failures to direct on ‘the use to which the evidence on charges 1 and 2 could be put’, nothing else.

Under cover of ground 1(a) — the asserted failure to give an anti-propensity warning — the applicant’s counsel submitted that although charges 1 and 2 resulted in verdicts of not guilty, the evidence on those charges ‘involved evidence of a very prejudicial kind — unusual and confronting sexual behaviour, accompanied by vengeful, hostile and aggressive comments’. The prejudice consisted of the alleged acts themselves, which were ‘confronting and unpleasant’; the ‘brutish words and attitude which accompanied them’; and the use to which the prosecution sought to put them, so as to bolster MB’s credit and to ‘trace the alteration in relationship’ between MB and the applicant.

In our view, the evidence which it is said should have attracted a warning is other misconduct evidence within the meaning of s 26 of the Jury Directions Act 2015, either because it was ‘evidence of other discreditable acts … of an accused that are not directly relevant to a fact in issue’, or because it was ‘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’.

Section 27(1) of the Act provides that defence counsel ‘may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution’. If the judge fulfils defence counsel’s request, s 27(2) provides that he or she 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.

Defence counsel sought no such direction, so that s 15 of the Act — which provides that ‘the trial judge must not give the jury a direction that has not been requested under section 12’ — was animated. Thus, by virtue of s 16(1), the trial judge could have given a direction on the other misconduct evidence only if he considered that there were ‘substantial and compelling reasons for doing so’. We are unable to discern any substantial and compelling reasons for doing so, and indeed can think of sound forensic reasons why defence counsel might not have wanted any direction on the evidence.

Plainly, s 16 of the Act imposes a residual obligation on a trial judge to give a direction even though not requested by the parties. It is not, however, an obligation imposed in the abstract. A decision whether to give a direction must be taken paying due regard to the issues raised by the case and to the forensic decisions of counsel; and a direction not requested by the parties can only be given if the reasons for doing so are substantial and compelling. Although one must be careful of substituting for the statutory language, reasons will not be substantial and compelling unless they are of considerable importance and strongly persuasive in the context of the issues in the trial. Thus, for example, a trial judge might give a direction not asked for if he or she considered that the failure to seek a direction was borne of incompetence.

As we have said, the decision whether to give a direction in this case was to be considered not in the abstract, but having regard to the particular circumstances of the case. Those circumstances included the way in which the defence had fashioned its answer to the charges; that is, by denial that any of the conduct described in charges one to five had taken place. We are unable to discern any substantial and compelling reasons for the judge to give a direction under s 27(2). Indeed, having regard to the issue upon which applicant’s counsel focussed at trial, we consider that there were sound forensic reasons why counsel did not seek any such direction on the particular evidence. There were no substantial and compelling reasons why his Honour should have introduced into the trial a direction which was incongruous with, and had the potential to undermine, the essential defence case.

In any event, we note that the trial judge warned the jury against deciding the case according to bias, prejudice or sympathy, or according to any ‘emotional responses’ borne of the context in which the alleged offences occurred, including ‘unusual sexual activity, prolonged drug use, all of these factors’. Such directions were, in our view, sufficient to ameliorate any risk that the jury would act according to any prejudice engendered by the evidence on charges 1 and 2.

Ground 1(a) is without substance.

With respect to ground 1(b) — a claimed failure to direct that the evidence on charges 1 and 2 could constitute ‘no more than context evidence’ when considering charges 3, 4 and 5 — counsel for the applicant stated in written submissions that ground 1(b) was ‘added following discussion at the hearing’. It was submitted that, given that both consent and belief in consent remained ‘live’ on the evidence — notwithstanding the defence position that the incidents founding charges 3 and 4 did not occur — the jury needed to be directed that the conduct associated with charges 1 and 2 (involving ‘forced digital anal penetration in a coercive and disrespectful manner’) ‘was relevant only as context within which to assess whether [the applicant] believed he had consent’.

In light of the narrow focus of the argument in support of it, given our conclusions on proposed ground 3, and our further reasons with respect to ground 1(a), ground 1(b) cannot succeed.

No aspect of proposed ground 1 as amended can be upheld.

Ground 2 — Failure to discharge the jury after successful ‘no case’ submission

Counsel for the applicant submitted that the applicant ‘suffered a significant forensic disadvantage as a result of the course of events surrounding charges 1 and 2’.[18] It was submitted that trial counsel set out to impugn the credibility and reliability of MB. A ‘fruitful’ line of cross-examination might have involved MB’s previous statements that she had not consented to the activities founding charges 1 and 2. It was submitted that the alteration in her account as to consent was material to MB’s reliability and credibility, yet trial counsel was hamstrung in his ability to cross-examine on these matters because charges 1 and 2 were not the subject of verdict until after all of the evidence closed. Counsel for the applicant submitted that the ‘cure’ was for the judge to have discharged the jury with respect to charges 3, 4 and 5, under ss 241(2) and (3) of the Criminal Procedure Act 2009.
[18]See [13] above.

The short answer to this ground is that trial counsel did not seek a discharge of the jury, in circumstances where there were sound forensic reasons for not doing so. Defence counsel may well have wished to take advantage of the fact that the complainant did not ‘swear up’ — the prosecutor had opened on the basis that MB would give evidence that the acts founding charges 1 and 2 were without her consent — as bearing specifically on MB’s reliability and credibility, and on the strength (or lack thereof) of the prosecution. Furthermore, trial counsel may well have reasoned that it was unlikely that he would be able to replicate at a trial limited to charges 3, 4 and 5, the psychological and atmospheric advantage flowing from the jury being directed to return not guilty verdicts on charges 1 and 2 at the same time

that they had charges 3, 4 and 5 under consideration. It is impossible to know. But from the perspective of one experienced in criminal advocacy, it is possible to say that the decision not to seek discharge of the jury could be justified.

Although the ground as formulated claimed that the judge ‘erred by failing to discharge the jury’, Maric[19] and other cases make clear that the appeal is not against the failure to discharge, but against the conviction, so that the issue for determination is whether a substantial miscarriage of justice had occurred. For the reasons above, we are not persuaded that any miscarriage of justice (substantial or otherwise) was occasioned by the continuation of the trial after the judge had resolved to direct the jury to acquit the applicant on charges 1 and 2.
[19]Maric v The Queen (1978) 20 ALR 513.

Leave to amend ground 2 should be refused, since the foreshadowed amended ground has no substance.

Conclusion

Leave to amend grounds 1 and 2, and to add ground 3, should be refused, as should the application for leave to appeal against conviction.

CROUCHER AJA:

Overview

I have had the advantage of considering the joint judgment of Ashley and Priest JJA. While I agree with some aspects of their Honours’ reasons, I disagree with others and with the orders they propose.

In my view, this trial went fundamentally wrong from the moment MB gave evidence that she consented to the alleged acts that formed the basis of Charges 1

and 2. While that evidence was a surprise to the prosecutor, and fatal to the Crown case on those charges, it was, perhaps perversely, also the catalyst for the trial ultimately to run off the rails. For at no point did counsel at either end of the bar table, or the judge, adequately grapple with the difficulties presented by that evidence or the immediately surrounding evidence of uncharged aggressive sexual behaviour.

On the contrary, as I shall endeavour to explain, in his final address, in what might be thought to be an ingenious – even heroic – but nevertheless flawed attempt to retrieve a faltering case, the prosecutor sought to turn to the Crown’s advantage the evidence supporting and surrounding the impending acquittals. Unfortunately, that attempt included an invitation to engage in rank propensity (or tendency) reasoning. Alas, that error went uncorrected, as the judge failed to give any directions cautioning the jury against either that kind of misuse or as to the permissible use of the evidence. While defence counsel requested a direction on ‘uncharged acts’, the request, as put, was not as well-targeted as it might have been. Perhaps a more precise objection might have produced a different response. I think that is unlikely, however, given that it appears that the judge did not appreciate the prosecutor’s error or the inadequacy of his own directions. The net result is that there has been a substantial miscarriage of justice necessitating the setting aside of the applicant’s convictions and a direction for a new trial.[20]
[20]Pursuant to ss 276(1)(b) and 277(1)(a) of the Criminal Procedure Act 2009 (Vic).

More formally, I am satisfied that Grounds 1(a) and 1(b) have been made good but that Grounds 2 and 3 have not. Further, I am satisfied that there has been a substantial miscarriage of justice as a result of the errors disclosed in Grounds 1(a) and 1(b). I would grant leave to amend Grounds 1 and 2 and to add Ground 3, but uphold only Grounds 1(a) and 1(b), grant leave to appeal, allow the appeal, set aside the convictions and sentences on Charges 3, 4 and 5, and direct that there be a new trial on those charges.

My reasons follow.

Evidence at trial
(a) Introduction

Before dealing with the grounds of appeal, it is necessary to summarize the main parts of the evidence at trial, as well as the course of proceedings.

Ashley and Priest JJA have already summarized and extracted parts of MB’s responses in evidence-in-chief, but not her evidence in cross-examination or re-examination. Given that there are other parts of her evidence-in-chief that I think it necessary to include, it will be more helpful, despite the repetition involved, if I summarize most of her evidence, from start to finish. I also consider it necessary to summarize the evidence of the other witnesses and the applicant’s admissions of fact.

(b) MB, the complainant

MB said that she and the applicant had previously been involved in a relationship from August 2013 to January 2014. At the time of these events, MB was aged 24 and the applicant was 32.

On Monday 18 August 2014, the applicant contacted MB and asked her to come to his home in Craigieburn, where he lived with his parents. MB agreed, and arrived at about 5:00 p.m. From that time until the Wednesday morning, 20 August 2014, the two were ‘hanging out with each other and smoking ice’. MB said that she was smoking ice ‘probably every hour’ and that the applicant was ‘using more’. Over that period, they also engaged in consensual sexual acts, including penile penetration of MB’s vagina, anus and mouth.

On the Tuesday afternoon, the applicant’s behaviour changed. He accused MB of cheating on him when they were in a relationship, and became aggressive. He slapped her across the face. Later, he put his arm around her neck and threatened to break it if she did not tell him that she had cheated on him.

Early on the Wednesday morning, they started arguing and fighting again. Again, the applicant accused MB of cheating on him. He called her a ‘slut’, spat on her face, twice, and said, ‘How would you like it if I spat on your mum’s grave? How would you like it if I fucked your friend in the arse?’ MB became ‘really angry’ and spat back at him. The applicant then ‘got really angry’ and told her to leave his house. MB apologized. (She said she did not really want to go back home to her parents, as it was early in the morning and they would have been on their way to work.) The applicant said that was fine. He said he wanted to have a shower and go to sleep. He told her to go to sleep too.

After his shower, the applicant returned and laid next to MB on the bed. They started kissing and cuddling and then engaged in penile-vaginal intercourse. When the applicant discovered that MB was menstruating, he said, ‘Yuck,’ and intercourse ceased. MB went to the bathroom, wiped the blood away and put her underpants and pants back on.

When she returned, MB said, ‘Let’s not have sex.’ The applicant then got up from the bed, pushed her back onto the bed and started to remove her pants and underpants in an aggressive fashion. She thought he was going to rip them, so she removed them herself. He placed himself on top of her and put his penis up to her face and then in her mouth. He then tried to put his bottom on her face and said, in a low voice, ‘Lick my arse, bitch – this is payback.’ MB said, ‘No – yuck – I don’t want to,’ and moved herself down the end of the bed. The applicant said, ‘This is revenge, bitch.’

The applicant pulled MB back onto the bed so that she was lying on her stomach. He got on top of her, turned her left arm around and placed her fingers in her anus. He also placed his fingers in her anus (just) prior to this. MB said, ‘No, stop,’ and ‘Don’t, stop.’ (Later in her evidence, MB said that she said, ‘No, stop,’ after he wiped his and her fingers on her face, which I shall come to shortly.) MB said she consented to the first, and could not remember whether she freely agreed to the second, of these two acts of digital-anal penetration. (These alleged acts were to be the bases for Charges 1 and 2.)

The applicant then used the finger he had placed in her anus to wipe MB’s face. He did the same with her fingers. As he was doing so, MB said, ‘Yuck. Don’t.’ MB said that it was at this point that she ‘didn’t want to have sex any more, or do anything’. She got up and went to the bathroom, crying.

The applicant followed her to the bathroom. She went to leave, but he grabbed her hair and pulled her back in. While holding her hair, he said, ‘Look in the mirror,’ and, ‘You fucking prostitute.’ He pushed her head down towards his bottom and said, ‘Lick my arsehole.’ MB did not want to do this, but did so because of the way he held her hair tightly. (These alleged acts were the basis for Charge 3, indecent assault.)

Next, the applicant pulled MB up by the hair and pushed her against the wall. She was crying and said, ‘Stop. I don’t want to do this.’ He then inserted his penis into her anus, which continued for about 30 seconds, until he ejaculated. During this incident, while she was crying, he was saying, ‘Shoosh, my parents will hear you.’[21] (These acts were the basis for Charge 4, rape.) The applicant left the bathroom while MB stayed there, sitting on the toilet, for about five to ten minutes. She knew the applicant had ejaculated because ‘when [she] sat on the toilet [she] felt stuff in [her] bottom’.
[21]The applicant’s parents were not called as witnesses at trial.

When the applicant then left his bedroom, MB quickly put on her clothes. When the applicant returned, MB’s bag was just next to her. He said to her, ‘You’re not going?’ She responded, ‘You – you just raped me. I am going.’ He said, ‘Don’t play games, [MB]. As if. You wanted it. If you tell anyone about this, I will get [an] Asian to come murder your fucking parents.’ (This alleged threat was the basis for Charge 5, threat to kill.) The applicant then laid on his bed and passed out.

MB, who was in ‘complete shock’, ran out the door, got into her car and drove away. She stopped near a McDonald’s restaurant, rang her friend ‘GG’ and told her she had been raped. They arranged to meet in the city, where MB gave her more detail of what had happened. She told her that, when she was bleeding, she said, ‘Let’s not have sex,’ and that he raped her ‘in the arsehole’. The two of them then went to a police station and reported the matter.

In cross-examination, MB conceded that she did not sleep at all while with the applicant from the Monday afternoon through to the Wednesday morning. While she was affected by ice, she was still able to walk and talk. She accepted that her memory for some detail was significantly affected by the use of ice but said that she remembered ‘the main parts’ of the events. She accepted that use of ice makes her paranoid and anxious and affects her decision-making but did not accept that it affects her judgment.

MB said that she did not remember seeing Dr Kashyap at all after these events and that she could not remember being asked questions by Dr Odell. (There was evidence, to which I shall come shortly, that she had seen and spoken to both of these doctors after making her report to police.)

MB accepted that, on the Tuesday, she had consensual unprotected penile-anal sex with the applicant and that, on the Wednesday morning, there were other instances of consensual penile-facial, penile-oral and penile-vaginal sex. When they had sex on the Monday and Tuesday, the only time the applicant ejaculated was when they had oral and vaginal sex; he did not ejaculate into her anus when they had anal sex.

Defence counsel suggested to MB, but she rejected, that the alleged anal rape, as she described, was physically impossible and did not happen. He also suggested to her, but she rejected, that the alleged threat to kill was not made.

MB accepted that she did not want to go home and see her parents because she was ashamed of herself for being at the applicant’s place for a long time. She accepted that she was ashamed of her drug use, that she was anxious about what her parents would think and that she did not want them to know where she had been for the past two nights.

While I found it difficult to follow, towards the end of cross-examination, I understood counsel to suggest, but MB to deny, that her allegations of sexual assault ‘provided an explanation that blamed the drug use on something out of [her] control’. Counsel suggested to MB that she had told people she was held at the applicant’s place, to which she responded, ‘I was at a point after he raped me, he wouldn’t let me leave.’ Then MB accepted that the applicant had told her to leave and that she had chosen not to leave out of embarrassment. Finally, counsel then suggested to MB that ‘these allegations are convenient … [t]o explain [your] drug use over that two-day period with [the applicant]’, which she denied.

The prosecutor then asked a series of (mostly) leading questions in re-examination, in response to which MB confirmed that the applicant ejaculated three times during sex over the preceding days but that at no time did he ejaculate in her anus (other than the time when he raped her).

(c) GG, witness of first complaint

Five other witnesses gave evidence in the Crown case.

GG is MB’s friend. She said that, at about 9:00 a.m. on 20 August 2014, MB rang her. MB was crying and said that the applicant had raped her. Later, they met in the city, where MB told her that the applicant raped her anally, had forced her to lick his anus and had not let her leave afterwards but that she left when he fell asleep. GG then took MB to police and stayed with her when she was taken to hospital.

In cross-examination, GG accepted that MB did not tell her that the applicant had asked her to leave his place.

(d) S/C Hall, first police contact

Senior Constable Kristopher Hall said that he met MB and GG at the counter of the Melbourne East Police Station at 10:15 a.m. on 20 August 2014. MB appeared to be ‘visibly upset’. He could not say whether she appeared to be drug-affected.

In cross-examination, S/C Hall said that MB told him that she had used ice over the period from 18 to 20 August, but she did not say when she had last used it. She reported ‘unwanted sexual acts’ preceded by ‘consensual sex’. MB told him that the applicant had a shower and, while he was in there, she left.

(e) D/S/C Cousland, later police contact

Detective Senior Constable Sharon Cousland, who was a member of the Melbourne Sexual Offences and Child Abuse Investigation Unit, said that she attended the Melbourne East Police Station at about 11:33 a.m. on 20 August 2014. She took MB to the Royal Women’s Hospital at 11:45 a.m., where she remained until 12:30 p.m. During that time, MB told the detective that she had been using ice; that she had last used ice at about 8:00 or 8:30 a.m.; and that she had not slept for three days. MB did not appear to be drug-affected. MB said that she left the applicant’s home when he was passed out on the bed.

(f) Dr Kashyap, first medical examiner

Dr Rupali Kashyap, a medical doctor, said that she spent about an hour with MB on 20 August 2014 for the purposes of a sexual assault examination. MB told her that she had taken drugs at about 8:00 a.m. that day, but did not specify the type of drug. When asked whether MB showed any signs of drug use, Dr Kashyap said she was not able to comment other than to say that MB appeared quite agitated and very anxious, was talking very quickly, was unable to sit still, had wide dilated pupils and was very eager to receive medical attention. MB said that the drug she had used that morning did not agree with her and that she was starting to get a rash, which the doctor observed on both her arms. She complained of pain and cold in her hands and other extremities. Dr Kashyap was unable to complete the examination because she was concerned that MB should be medically examined. MB was then handed over to the Emergency Department of the hospital at about 3:30 p.m.

(g) Dr Odell, second medical examiner

Dr Morris Odell, a forensic physician, said that he examined MB at the Royal Women’s Hospital from 6:40 p.m. until 8:40 p.m. on 20 August 2014. MB told him that she had been assaulted at about 7:00 a.m.; that she had been smoking a lot of ice in the past couple of days; that she had not slept since 17 August; and that she had developed a rash earlier that day. She said that, at 7:00 a.m., she had consensual sexual intercourse and had vaginal bleeding at that time. She said that the man forced her to lick his ‘penis’;[22] that he had put his penis in her bottom and ejaculated; and that, before he did that, he had forced her right index finger into her anus and then into her mouth. She said that there had not been any punching but that he had slapped her cheeks and held her down by the neck. She said her anus felt normal and that she had not been to the toilet since these incidents.
[22]The trial transcript (at p 142.31) records the word ‘penis’, but it may be that either the witness or the stenographer, or both, meant ‘anus’. In any event, no point appears to have been made of this at trial.

MB presented with dilated pupils, which is one of the effects of ice. She was otherwise fully conscious and co-operative. She did not present as psychotic or paranoid. She had minor bruising and scratching over her arms and legs and over her left shoulder blade. There was no sign of injury to her genital or anal area. Her vaginal opening was bloodstained, tender to the touch with a cotton bud and would not tolerate an internal examination with an instrument. The doctor said it was common for there to be no obvious signs of injury to the anus when an allegation of sexual penetration is made. He took swabs from the opening of her anus and her vulva for DNA analysis.

Dr Odell also gave further evidence about ice and its effects. He said, inter alia, that ice is a stimulant. Its use can increase pulse and blood pressure, give a feeling of invincibility, cause the user not to think about consequences, increase sexual desire, lead to aggression, affect decision-making and concentration, and affect memory and the way perceptions are transferred into long-term memory. There is, however, an enormous variation in the way ice affects individuals.

In cross-examination, Dr Odell accepted that the toxicology result for MB – a methylamphetamine (i.e. ice) reading of ‘0.2’ – was ‘moderately high’. He agreed that her reading eleven hours earlier is likely to have been higher, and the effects greater. He also accepted that taking ice every hour for 37 hours, as MB admitted, was ‘an enormous amount of consumption’. He agreed that the observations of MB by Dr Kashyap were consistent with the side-effects of ice use.

When asked what he would say about MB’s evidence that using ice does not affect her judgment, Dr Odell said that ice does ‘affect people’s judgment’ and, ‘when they’re in an intoxicated state, … they can’t judge that their judgment is affected, if you know what I mean’.

Dr Odell also opined that being awake from the Monday to the Wednesday, even without ice, ‘has an effect on the way the mind works, and it … affects people’s cognition – that is, their mental functioning’, and they have ‘difficulty concentrating on things, … sustaining their attention on things, and reacting properly to … things that they need to react to in the environment’. He said that, ‘because they can’t think properly, and if you add a drug on top of that, … it’s a very disturbed situation for a person to be in’.

Dr Odell also accepted that, while it is usually seen in long-term use of ice, ‘amphetamine psychosis’ can result from short-term use of ice by a short-term user, and that a person can ‘go in and out of [that] psychosis’. He accepted that a person using large concentrations of ice over a two-day period could fall in and out of psychosis during this period. The user would not know that he or she was falling into that psychosis, as the experience of delusional thinking would seem extremely real.

Dr Odell conceded that it is possible that the semen containing the applicant’s DNA in the anal swab could have been deposited there from activity other than the alleged anal rape, including vaginal sex involving ejaculation or any sex where there was no ejaculation but involved pre-ejaculatory fluid.

Finally, in cross-examination, Dr Odell agreed that it was possible that, in MB’s drugged state, her memory of events was distorted.

In re-examination, Dr Odell said that it was possible that sperm deposited in the vagina could ‘leak out’ and ‘find its way to just about anywhere’. He said that, even if the ejaculation into the vagina had occurred two days earlier, it was ‘certainly possible’ that semen could be found on her anus when he examined her.

Finally, when asked whether, with respect to amphetamine psychosis, if a person did suffer from some sort of delusion that then passed, the person would be likely to know what was experienced was a delusion, he said, ‘Probably.’

(h) Admissions of fact

The applicant also made an admission of fact that semen was detected in the anal swab taken from MB and that the DNA results provided ‘extremely strong support for the proposition that [the applicant] was the source of the semen’.

(i) No police interview or defence evidence led

The applicant did not give or call evidence. While he had denied rape in a record of interview with police, neither that fact nor the interview was led in evidence before the jury.

The course of the trial leading up to the ‘no case’ decision

I turn next to the course of the trial leading up to, and immediately following, the submission that there was no case to answer on Charges 1 and 2.

After MB gave evidence of her consent to the acts led in support of those charges, and during a subsequent break in evidence-in-chief, the judge, in the absence of the jury, remarked, ‘That’s the end of Counts 1 and 2.’

Subsequently, during a break in cross-examination, defence counsel said that he ‘need[ed] to give some thought about how [he] proceed[s] with these acts on the bed with the fingers in the anus, given [MB’s] answers’. It is plain that counsel had questions he had planned to ask MB about the circumstances alleged in Charges 1 and 2 but that he was unsure whether to pursue that course. The judge reiterated his view that, on MB’s evidence thus far, the acts of digital-anal penetration were consensual. The prosecutor indicated that, while Charge 1 may be ‘lost’, he would be submitting that Charge 2 was still open on the evidence. The judge cautioned defence counsel that, if, as foreshadowed, he sought to put to MB allegedly prior inconsistent statements made by her at the committal hearing, that may revive Charges 1 and 2 by eliciting evidence that supported an absence of consent to the alleged acts of digital-anal penetration. Defence counsel then resumed his cross-examination of MB, but was astute to avoid direct reference to those alleged acts.

Later, during another break in cross-examination of MB, the judge disclosed to counsel, in the presence of the jury, that the jury had asked, inter alia, ‘Was the insertion of his fingers into her anus consensual? Was the insertion of her fingers by him consensual?’ Without seeking any submissions from counsel, the judge immediately sought to answer the questions. His Honour said to the jury:

… The first two questions there’s evidence already been given about, and I will go to it when I get the transcript. I’ve looked at it carefully overnight. But you heard her evidence yesterday.
But, in essence, as I read it, and I will read it precisely, is that she indicated that everything turned for her when he rubbed his fingers, and her fingers, on her cheek, and that the insertion of the fingers, his and hers, had occurred before that, I think in one stage she said she agreed, at least with some of it.
So I will go back to it in some detail, but I think the answer to that is, there’s no evidence that it wasn’t, putting it that way – that it wasn’t consensual. …[23]

[23]My emphasis (in bold and italics).

The jury then heard the balance of MB’s evidence, including further cross-examination and re-examination.

During the break that followed MB’s evidence, the prosecutor expressed the (reasonable) ‘wish’ that the judge had discussed the jury questions with counsel before answering them, particularly given his submission that there was still a case to answer on Charge 2 (as distinct from Charge 1). The judge said he would hear submissions later. Twice more during breaks in the subsequent evidence, the judge, in the absence of the jury, reiterated his view that there was no case to answer on Charges 1 and 2, but said that he would hear the prosecutor at the close of the Crown case.

When that time came, defence counsel submitted that there was no case to answer on Charges 1 and 2. After having the matter stood down briefly, the prosecutor announced that he had ‘bow[ed] to the inevitable’, and made no submissions to the contrary.

The judge then indicated, as he had done in previous discussions, that, in his view, while ‘[i]t’s arguable that it [i.e. MB’s going ‘from consenting to non-consenting’] [occurred] earlier … she actually said it was the wiping of the cheeks that caused it and that, subsequent to … the anal penetration with his finger and hers, which is Charges 1 and 2’.[24]
[24]My emphasis (in italics).

His Honour indicated that he would be ‘telling [the] jury that they can’t convict on those two [charges] but whether I do it now or during the course of the charge doesn’t really matter because you’re not going into evidence’. The prosecutor submitted that it would be better to tell the jury before final addresses. The judge then said, ‘I will be telling them I’m going to be telling them at the end … so they don’t have to listen to it and they won’t have to determine it.’

I break from the summary to note that, as Ashley and Priest JJA have pointed out, it is of relevance to Ground 2 that defence counsel did not object to that proposed course. Nor did he submit (a) that the judge should enter verdicts of acquittal on Charges 1 and 2, or direct the jury to do so, forthwith and (b) that he then should discharge the jury without returning verdicts on Charges 3, 4 and 5. I shall return to these matters when discussing Ground 2.

Immediately thereafter, the judge also said that ‘[t]he issue in this case is whether or not he indecently assaulted her, raped her and threatened to kill her family’. A short while later, in the course of discussions, pursuant to the Jury Directions Act 2015 (‘the JDA 2015’), about the jury directions required, defence counsel agreed with his Honour when he said:

… They were the only discrete topics, other than defining the elements of each of the offence[s] but I think you will be agreeing with me, won’t you, that if they happened in that way – if they satisfy beyond a reasonable doubt that they happened in the way she said that they did the offence has been made out. … The question is whether they’re satisfied beyond reasonable doubt that those three offences occurred.

Again, I break to note that, as Ashley and Priest JJA point out, it is relevant to Ground 3 that counsel did not object at this point or at any later point after the judge charged the jury along the same lines.

The next step was that, after defence counsel announced the applicant’s course in the presence of the jury, the judge then directed the jury in the following manner:

… Before the barristers start [their final addresses], … You asked a question during the course of the trial that went along the lines of, ‘Were the – was the act of digital penetration of the anus and forcing her to penetrate her anus – were that consensual?’
I said we would get back to that. And the answer is, on her evidence, she says it was. She was asked whether or not she consented to those – or whether she had a problem – I will find the answer. ‘Did you consent?’ She said no initially, and then she said, ‘Yes. Sorry. I did. It was – at that point, it was fine. It was the point when he put his fingers on my face’ – and that’s when she – that’s where she said it changed.
Now, as I will be telling you, rape involves the prosecution proving as a matter of fact that there was no consent, and she, in fact, is admitting that at – as for those first two counts – Charges 1 and 2 – that she – that was fine. It was only when he rubbed it on her face that she changed her tune, as it were, and this went from being consensual activity – or at least not non-consensual activity – she wasn’t – I think (indistinct) put it fairly.
So she said she wasn’t delighted by it, but she wasn’t, at that point, saying no, but from that point onwards. So you will be directed – and I’m directing you – that when you return verdicts, you will be returning verdicts of not guilty in relation to Charges 1 and 2. I’m saying nothing about Charges 3, 4 and 5. They are still live, and they’re for your consideration, but you won’t be – you will be directed to bring in verdicts of not guilty in respect of Charges 1 and 2.[25]

[25]My emphasis (in bold and italics).

The judge then called upon the prosecutor to address the jury.

Prosecutor’s final address

For now, I shall say only this about the prosecutor’s address. Counsel accepted that the Crown case depended upon the jury’s being satisfied, beyond reasonable doubt, that MB was truthful and reliable in her account of the charged allegations. He submitted that the jury should be so satisfied. He then put a series of arguments as to why that was so. I shall return to some of those arguments later in these reasons.

Defence final address

The judge next called upon defence counsel to address the jury.

While the prosecutor’s address, which ran for over 23 pages of transcript, was comparatively long and comprehensive, defence counsel’s address was very brief and sparse – it ran for only five-and-a-half pages.

In essence, counsel submitted that MB was unreliable, or otherwise not to be believed, because, amongst other things, she:

a) had been awake for about 40 hours continuously;

b) had consumed ice (almost) every hour during that period;

c) admitted that her memory was significantly affected, which is consistent with Dr Odell’s evidence that it was possible that, in her drugged state, her memory of events was distorted;

d) admitted that ice use makes her feel paranoid and anxious, which is consistent with Dr Odell’s evidence;

e) denied that ice affected her judgment, despite Dr Odell’s evidence that the drug does indeed affect judgment and, what is more, when users are affected, they cannot judge that their judgment is affected;

f) had more ice when the applicant was in the shower and after the alleged indecent assault and penile-anal rape;

g) gave an account of those alleged acts that was implausible and amounted to the physically impossible; and

h) had no memory of spending any time with Dr Kashyap, despite the fact that she had been with him for an hour and in circumstances where the doctor’s observations of her were, in Dr Odell’s opinion, consistent with her being affected by ice.

Counsel also referred to the prosecutor’s submission that the DNA results from the anal swab provide support for MB’s account. He submitted that those results were neutral because, in light of the evidence – including acts of consensual sex and ejaculation, the possibility of pre-ejaculatory fluid being emitted and the opinion of Dr Odell – they could be explained by something other than MB’s allegation of penile-anal rape and ejaculation.

Ground 1(a): Failure to give anti-propensity (or tendency) warning
(a) Introduction

This brings me to Ground 1(a).

While there will be some overlap, I shall attempt to deal with Grounds 1(a) and 1(b) separately. As I have indicated earlier, I would uphold both grounds. It will be more convenient to defer consideration of Ground 1(b) until much later in these reasons. So, first, to Ground 1(a).

(b) Scope of Ground 1(a) (and Ground 1(b))

In their reasons, Ashley and Priest JJA appear to proceed on the basis that Ground 1(a) is confined solely to an assessment of whether an anti-propensity direction was necessary in light of ‘the evidence on’ Charges 1 and 2.[26] While it is correct to say that the ground, as pleaded, speaks in those terms, the arguments of the parties, as I understood them, also embraced the evidence of behaviour accompanying and immediately surrounding the acts of digital-anal penetration that were the basis for Charges 1 and 2.[27] In any event, for the purposes of considering this ground (and Ground 1(b)), in my respectful opinion, it is impossible sensibly either to sever that alleged accompanying and immediately surrounding behaviour from the acts of penetration or to ignore that behaviour. As will be seen, that is the way in which the prosecutor dealt with the evidence in his final address when urging the propensity reasoning that ought to have attracted an anti-propensity direction.
[26]As I understand their Honours, they take the same approach to Ground 1(b).
[27]See, e.g., Applicant’s Written Case As Amended, [20]-[22] & [25]-[26A]; and Response to Applicant’s Written Case, [16.1]-[16.9].

(c) The parties’ submissions in this Court

Mr Morrissey SC, who appeared for the applicant in this Court (but not at trial), submitted that an ‘anti-propensity’ direction was necessary. In summary, his argument was as follows:

a) First, the evidence supporting Charges 1 and 2 ‘included evidence of a very prejudicial kind – unusual and confronting sexual behaviour, accompanied by vengeful, hostile and aggressive comments’.

b) Secondly, while the evidence was admissible on the trial, the prosecutor relied ‘very heavily indeed’ upon that evidence in support of Charges 3, 4 and 5.

c) Thirdly, it was necessary to direct the jury that, while the impugned evidence may be used as relevant to credit and relationship, they must not engage in propensity reasoning. But no such direction was given.

d) Fourthly, while trial counsel’s request for a direction on ‘uncharged acts’ was in general terms, the judge (erroneously) declined to give such a direction because there was no ‘reference to uncharged acts in the classic sense’.

Mr Boyce SC, who appeared for the Director in this Court (but not at trial), submitted that no such direction was required. In summary, his response was as follows:

a) First, the impugned evidence ‘explained the evidence of wiping [MB’s cheeks] which in turn explained the lack of consent’.

b) Secondly, while the evidence, including the first act concerning anal licking, ‘might be seen by some to be rather extreme’, the fact remains that the applicant ‘did not force [MB]’ and ‘respected [her] right to say ”no”’. In those circumstances, it would have been ‘a dangerous thing … for the jury to be told that this earlier activity … could conceivably amount to a propensity to commit rape, even if the jury was expressly directed against such reasoning’.

c) Thirdly, there ‘was no suggestion in the prosecutor’s argument that by virtue of the impugned evidence the applicant was the type of person likely to commit Charges 3 to 5’.

d) Fourthly, while trial counsel was ‘not entirely explicit’ about the evidence to which he was referring when he requested a direction on ‘uncharged acts’, his reference to prosecutor’s remarks about ‘the aggression’ was ‘more likely’ to be to evidence that preceded consensual acts of sexual intercourse and the impugned evidence, but that the exception was not pursued in the end anyway.

(d) Character of the impugned evidence

Ashley and Priest JJA are of the view that the evidence which it is said should have attracted an anti-propensity warning is ‘other misconduct evidence’ within the meaning of that term in paragraphs (c) and (d) of the definition in s 26 of the JDA 2015.

By paragraph (b) of the same definition, ‘other misconduct evidence’ also means ‘tendency evidence’. ‘Tendency evidence’, in s 26 of the JDA 2015, has the same meaning as in the Evidence Act 2008. The dictionary to the latter Act provides that ‘tendency evidence’ means evidence of a kind referred to in s 97(1) that a party seeks to have adduced for the purposes referred to in that subsection. Section 97(1) provides as follows:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind, unless –
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(e) Prosecutor’s invitation to employ propensity (or tendency) reasoning

Whatever its true character, contrary to the Director’s submission in this Court, I am satisfied that the prosecutor, in his final address, invited the jury to use the evidence led in support of Charges 1 and 2, and the evidence of the uncharged behaviour that immediately preceded, accompanied and followed that alleged behaviour, in a propensity (or tendency) fashion. So much is apparent from a reading of the following four passages in the prosecutor’s address.

In the first passage, in what I suggested earlier might be an ingenious piece of advocacy, the prosecutor submitted that MB ‘prove[d] she was being honest, … strangely enough, by faithfully undermining the [Crown] case on Counts 1 and 2’. He explained that, contrary to the outline he had given in his opening address, in her evidence, MB conceded that the acts of digital-anal penetration were consensual. He had opened the case on the basis that the ‘transition point’ in her consent was when the applicant (initially) put his buttocks on her face (i.e. just prior to the acts of digital penetration). But MB said in evidence that the turning point was when he wiped her fingers, and his, on her face, which came straight after the acts of digital-anal penetration.

I pause at this point to make three observations. First, while he was quite inventive, the prosecutor should not have been referring to what he had said in his opening as if, somehow, it contained evidence of what MB had previously said and was going to say. Secondly, however, defence counsel, presumably, was happy enough to hear that confession, because, in light of the evidence MB did give, it tended to undermine her credibility and/or reliability. Thirdly, however, things went seriously awry when the prosecutor sought to explain MB’s change of mind and the applicant’s motive and inclination during the acts following the spitting incident and preceding the acts alleged in Charges 3, 4 and 5.

Thus, in the second passage, the prosecutor submitted the following:

I gave her several chances to say that having those fingers inserted in her anus was not consensual and she didn’t, or at least, not clearly. But when you look at her evidence, you can think about it in this way. She’s got them having consensual penis-in-vagina sex. Then she’s being held down on the bed and having a penis put in her mouth. Then she’s having buttocks put on her face. Then she’s having fingers shoved in her bottom.
But it’s not, she says, until those fingers are wiped on her cheek. This is where’s she drawn the line and really, as I could understand what she’s saying is, up until then, it was – or it seemed to her – to be rough sex. Perhaps she wasn’t really thrilled … about it, you get that sense from her evidence, but she went with it. She’s (indistinct) to call it rape.
But then it changed and it changed at the point where she realizes, ‘This wasn’t sex any more. This was punishment.’ That’s what it was. Punishment. And that’s the point it became clear to her was when those fingers … getting rubbed on her cheeks. That’s when it changes for her because she realizes now this is not what she thought it was. This is something else and it’s when she’s in the bathroom and he comes after her – that’s when she gets raped.
But the important thing about her credibility is that when [MB] has been asked to draw that line – you know, where we’ve gone from consensual to non-consensual – she has drawn it in the most generous way you could draw it [for the applicant]. That’s what she’s done. She’s drawn it at the last point before she’s … crying in the bathroom and he comes in and grabs her by the hair and shoves his face into his buttocks. She’s given him the benefit of the doubt, she has.[28]

[28]My emphasis (in italics and in bold and italics).

These submissions were calculated to convey the notion that, while MB believed the applicant may have sexually assaulted or raped her earlier, and he probably did, because she only realized what had been happening by the time her face was wiped, she was prepared nevertheless to ‘give him the benefit of the doubt’ until that point.

In the third passage, the prosecutor submitted that, while the Crown does not have to prove a motive for the applicant’s behaviour, nevertheless:

[i]t does seem, on [MB’s] evidence, that Mr Gul was becoming increasingly irrational and aggressive over those couple of days. Maybe that’s related to ice use, maybe it’s not. Maybe he’s just an angry kind of guy. We don’t know. But this wasn’t – this didn’t – there was a kind of – there was a certain kind of build-up to this. This just didn’t come out of the blue. There was increasing aggression over those days.[29]

[29]My emphasis (in italics, in bold and italics, and in bold, italics and underlining).

In context, the jury would have understood this submission to mean that, whether because of ice use or his personal inclination, the applicant had become increasingly irrational and aggressive, and therefore more likely to have raped and indecently assaulted MB during that period. Either way, he was the ‘kind of guy’ to commit rape and indecent assault.

In the fourth and final passage, which followed immediately upon the third, the prosecutor said this:

And that culminated, that was pretty aggro and pretty nasty. Remember, that culminated in that spitting episode. He spat in her face, she spat back at him. That’s when the change happened, that’s when the change probably happened in his mind. It took her a while to realize exactly what had happened. And perhaps everything that followed, everything that’s charged is really out of some desire to punish her, humiliate her and punish her for that. And that makes a certain amount of sense in light of his actual conduct. She stands up for herself, she spits at him, he punishes her. And of course on her account that’s what he said to her, ‘Punishment. This is punishment , bitch.’[30]

[30]My emphasis (in bold and italics and in bold, italics and underlining).

This submission is calculated to convey that the change in the applicant – from a person engaging in consensual sex to a person intent upon acts of rape and indecent assault designed to punish and humiliate MB – occurred because of the spitting incident, which was said to be early on the Wednesday morning, just before the following acts: the (interrupted) penile-vaginal sex, following which MB said, ‘Let’s not have sex’; then the removal of her clothing in an aggressive fashion and the putting of his penis up to her face; then the insertion of his penis into her mouth; then the attempt to put his bottom on her face, accompanied by the words, ‘Lick my arse, bitch – this is payback,’ and, ‘This is revenge, bitch’; then the two acts of digital-anal penetration forming the basis of Charges 1 and 2; and then the face-wiping incident. While the submission was intended in part to explain away MB’s change of account as to when things ‘turned’, it is also calculated to convey that she did not realize the applicant was in fact attempting to rape, assault and punish her earlier – thus, ‘[i]t took her a while to realize exactly what had happened’.

The upshot is that, in these passages, the prosecutor invited the jury to use the applicant’s earlier alleged aggressive sexual behaviour (at least from the point where ‘she’s being held down on the bed and having a penis put in her mouth, … having buttocks put on her face [and] … having fingers shoved in her bottom’ to ‘when those fingers [were] getting rubbed on her cheeks’), as well as his inclination to anger and aggression and accompanying talk of revenge or payback, as demonstrating that – at least in his own mind and, perhaps on reflection, in the mind of MB too – he was in fact, by commission of those acts, trying to assault, rape, punish and humiliate her and that, as a result, he was the type of person who would commit the acts alleged in Charges 3 and 4 and then threaten her in the way alleged in Charge 5. That is nothing more than rank propensity (or tendency) reasoning.

(f) The need for an anti-propensity/tendency direction

Such reasoning is prohibited. There was no warrant for using the evidence in this way. No tendency notice had been filed.[31] Further, the prosecutor’s arguments heaped speculation upon an unwarranted interpretation of MB’s evidence. The applicant’s defence to Charges 3, 4 and 5 was that those events did not occur. Misuse – by way of propensity (or tendency) reasoning – of the alleged behaviour both founding and surrounding Charges 1 and 2 directly undermined that defence. It will be recalled that Mr Boyce submitted that it would have been ‘a dangerous thing … for the jury to be told that this earlier activity … could conceivably amount to a propensity to commit rape’. He was right. But that is, in effect, what the prosecutor did. It follows that it was necessary, pursuant at least to s 29(1) of the JDA 2015,[32] to warn the jury against this kind of reasoning.
[31]See the Evidence Act 2008 (Vic), ss 97, 99, 100 & 101.
[32]See also the related directions in s 27(2) of the JDA 2015; and also Ground 1(b), below.

As things turned out, the Crown, through the prosecutor’s final address, received the legitimate benefit of the evidence for the purposes of seeking to explain – or perhaps rationalize – why and when it was that MB’s consent changed but also the illegitimate benefit of an invitation to employ propensity/tendency reasoning. The applicant’s potential benefit from the evidence – that MB may be seen as less credible and reliable in light of the substantial change in her account – was more than offset by the risk of rank propensity/tendency reasoning. That risk is almost certain to have materialized given the terms of the prosecutor’s address and the judge’s failure to disabuse the jury and warn against such reasoning.

(g) The judge’s remarks

While I regard this next point as unnecessary to my ultimate conclusion, the need for such a direction was even more pronounced in light of some remarks the judge made to the jury during the course of the trial. Those remarks suggest that MB’s consent to the acts of digital penetration was, in truth, equivocal.

In particular, it will be recalled that, when answering the jury’s question about whether the acts of digital penetration were consensual, his Honour said that ‘the insertion of the fingers … I think [at] one stage she said she agreed, at least with some of it’.[33] Further, when directing the jury they had to return verdicts of not guilty on Charges 1 and 2, his Honour said, of the acts of digital penetration, that this ‘went from being consensual activity – or at least not non-consensual activity – she wasn’t – I think (indistinct) put it fairly. So she said she wasn’t delighted by it, but she wasn’t, at that point, saying no, but from that point onwards’.[34]
[33]My emphasis (in italics).
[34]My emphasis (in italics).

These directions are also consistent with the view the judge had expressed in the absence of the jury – namely, that ‘[i]t’s arguable that it [i.e. MB’s going ‘from consenting to non-consenting’] [occurred] earlier’.[35]
[35]My emphasis (in italics).

Perhaps the prosecutor was emboldened by these remarks to address as he did. But, as can be seen, he went well beyond anything the judge said.

(h) Use of evidence the subject of the (impending) acquittals

In reliance on the following passage in the judgment of Redlich JA in R v VN,[36] Mr Morrissey also submitted that there was a further need ‘to direct the jury concerning the use to which those allegations [i.e. those supporting Charges 1 and 2] could be put’:

Though there can be no inflexible rule, the entry of verdicts of acquittal in a trial involving multiple counts on the presentment will not ordinarily require the discharge of the jury but the jury must be warned against the impermissible use of evidence that has been led on those counts and directed as to any limited use that can thereafter be made of such evidence.[37]

[36]R v VN (2006) 15 VR 113.

[37]Ibid, 134[79] (per Redlich JA, with whom Maxwell P and Buchanan JA agreed).

The submission raises an interesting issue. While the jury had been directed to acquit on Charges 1 and 2, the acquittals were not to occur, and did not occur, until the jury delivered their verdicts at the end of their deliberations. Thus, strictly speaking, Charges 1 and 2 were still ‘live’ at the time of the jury’s deliberations, which may mean that the principles concerning giving an accused the full benefit of any acquittal were not engaged. Further, that state of affairs is consistent with the prosecutor’s submission that ‘everything that followed [the spitting incident], everything that’s charged is really out of some desire to punish her, humiliate her and punish her for that’.[38]
[38]My emphasis (in italics).

I am also mindful of the observations, by the Court in The Queen v Getachew, as to the need to pay close attention to whether the evidence of belief is capable of negating the central statutory requirement that the accused was aware that the complainant was not or might not be consenting or gave no thought to whether the complainant was not or might not be consenting, i.e. the requisite mens rea for both indecent assault and rape.[56] But I think the words allegedly uttered, in the circumstances of this case, connote a belief that is capable of negating the mens rea. Those words are rather emphatic and do not appear to admit of a belief, held at the time of the sexual acts, that MB was not or might not be consenting or of a failure to consider whether she was not or might not be consenting. Of course, had the matter been left to the jury, it would have been for them, properly instructed, to determine what those words might have meant and whether, when considered in light of the surrounding evidence, they were satisfied beyond reasonable doubt that applicant possessed the requisite mens rea.
[56]See The Queen v Getachew (2012) 248 CLR 22, 32[23] & 33[26]-34[28]. See also ss 38(2)(a) and 39(2)(a) of the Crimes Act 1958 (Vic) as in force as at 20 August 2014 (i.e. the time of the alleged offences), which provisions respectively set out the mental elements for rape and indecent assault applicable in the present case.

Finally, contrary to Mr Boyce’s submission, given the timing and circumstances surrounding the applicant’s alleged response, it is open to treat that response as referable, at the very least, to both acts the subject of Charges 3 and 4. While the response may have been referable to other earlier (consensual) acts as well, I do not think it is open to confine it to those acts. Nor, despite the fact that the words were allegedly uttered in response to an allegation of rape, as opposed to indecent assault, do I think it is reasonable to confine that response to a belief in consent to the alleged act of penile-anal penetration (Charge 4), as opposed to extending it to a belief in consent to the alleged act of forcing his buttocks onto MB’s face (Charge 3) as well. Both alleged acts were part of the one continuing incident in the bathroom. There is no more merit in confining the response to the alleged rape than there would be to arguing that, because MB did not allege the applicant indecently assaulted her too, her evidence should be doubted on that account.

(3) Sections 37 and 37AA were potentially applicable

The second step in my reasoning is that I am satisfied that ss 37 and 37AA (and s 37AAA) were potentially applicable to the applicant’s trial.

In particular, I accept Mr Boyce’s submission that, despite the repeal of those provisions by the time of trial, because of their existence at the time of the alleged offending and because they are more likely not to be wholly procedural in nature, they survived the repeal so as to apply (potentially) at the applicant’s trial.

This construction is reinforced by the fact that ss 37 and 37AA (and s 37AAA) were repealed as of 1 July 2015,[57] which is the same date on which both the new substantive provisions concerning rape and related sexual offences[58] came into force, which is also the same date as the associated provisions in Division 1 of Part 5 of the JDA 2015 (i.e., ss 45, 46 and 47, which concern directions on consent and reasonable belief in consent, for the purposes of those offences) came into force. That the transitional provisions in clause 1(2) of Schedule 1 of the JDA 2015 make clear that ss 45, 46 and 47 apply only to offences committed after the commencement date (1 July 2015), and that s 626(1) of the Crimes Act makes clear that the repeal of ss 37 and 37AA (and s 37AAA) applies only to offences alleged to have been committed on or after the commencement of the repealing provision (also 1 July 2015), sits comfortably with the view that ss 37 and 37AA (and s 37AAA) continue to apply to offences allegedly committed prior to that repeal.
[57]See ss 2(3) and 7(3) of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic).
[58]See ss 34C and 37C-43 of the Crimes Act 1958 (Vic), which were inserted by ss 3 and 4 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic).

It follows that I agree with Ashley and Priest JJA that ss 45, 46 and 47 of the JDA 2015 are, by operation of the transitional provisions, inapplicable in this case. Of course, they could not have applied sensibly anyway, for they relate to a different regime of substantive law.

(4) Sections 37 and 37AA applied on the evidence

Thirdly, subject to the operation of s 16(1) of the JDA 2015, to which I shall come later, I accept Mr Morrissey’s submission that, because there was evidence led that the applicant believed MB was consenting to the acts alleged in Charges 3 and 4, ss 37 and 37AA required the giving of directions of the type contemplated by those provisions and that the directions given should not have tended to withdraw the issue of mens rea from the jury’s consideration.

In their reasons, after setting out the terms of s 37, Ashley and Priest JJA say this:

The reference to facts in issue in s 37 to is not an allusion to the elements of the particular offences or the ‘ultimate’ issues. As was made clear in Yusuf[59] (with respect to the forerunner of the iteration of s 37 now under consideration), the facts in issue referred to in the section are ‘the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence’.[60] It is only on those facts that a judge is required to give direction.
…
In the present case, the applicant’s belief in consent simply was not a fact in issue in the trial. The defence case on each of charges 3 and 4 was that the relevant activity did not occur. Nothing in ss 37, 37AAA or 37AA — assuming they were applicable — required a direction to be given on the applicant’s belief in consent because it was not a fact in issue.

[59]R v Yusuf (2005) 11 VR 492.

[60]Ibid, 492[18] (per Winneke P, with whom Charles and Chernov JJA agreed). See also The Queen v Getachew (2012) 248 CLR 22.

Whatever may have been the situation with respect to the earlier version of s 37 considered in R v Yusuf, this Court is now bound by the High Court’s construction of ss 37 and 37AA, and the relationship between those provisions, in The Queen v Getachew.[61] Relevantly, the Court said this:[62]

[21] For present purposes, there are two critical observations to make about s 37AA. First, the directions about awareness for which the section provided were to be given ‘if evidence is led or an assertion is made’ at the trial that the accused believed that the complainant was consenting. Second, s 37AA was expressed to be ‘[f]or the purposes of section 37’. Thus, s 37(1) required the giving of the directions s 37AA set out ‘[i]f relevant to the facts in issue in a proceeding’ – that is, if evidence was led or an assertion made of the identified kind – and s 37(2) prohibited the giving of a direction of the kind referred to in s 37AA ‘if the direction is not relevant to the facts in issue in the proceeding’ – that is, the criterion for engaging s 37AA was not met.
[22] It follows that an accused’s belief in consent is relevant at a trial for rape only ‘if evidence is led or an assertion is made’ that the accused did believe that the complainant was consenting to the sexual act. …
…
[25] … Rather, when s 37AA is read in the light of s 37, it is apparent that a jury is to be given directions about an accused’s belief in consent (and the bearing that this belief may have on awareness of the lack of consent) only if the possibility that the accused held such a belief has been raised at the trial (whether because evidence was led that the accused had such a belief or an assertion was made that the accused had such a belief).
…
[30] In a case where s 37AA is engaged, the directions required by that section must be given. In a case where s 37AA is not engaged, those directions must not be given.

[61]The Court’s judgment in The Queen v Getachew makes no reference to R v Yusuf.

[62]The Queen v Getachew (2012) 248 CLR 22, 31[21]-32[22], 33[25] & 35[30] (emphasis, in italics, in the original; footnotes omitted).

Thus, applying the foregoing reasoning, s 37AA was engaged in the present case – and therefore demanded the giving of the directions contemplated by the provision – because there was evidence led, in the Crown’s own case, that the applicant believed MB was consenting to the acts alleged in Charges 3 and 4.

(5) The directions required by s 37AA

It is as well to set out the terms of s 37AA at this point, which were as follows:

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—
(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and
(ii)whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
(iii)any other relevant matters.

Thus, at the very least, once s 37AA was engaged, the judge was required, in accordance with s 37AA(a), to direct the jury, in respect of each of Charges 3 and 4, that, in considering whether the prosecution has proved beyond reasonable doubt that the applicant was aware that MB was not consenting or might not have been consenting,[63] they must consider, for example, MB’s evidence of the applicant’s response to her allegation of rape. In addition to the matters referred to in s 37AA(b), other aspects of the necessary directions would have included not only instructions on the need to consider whether it was reasonably possible that the words allegedly uttered did convey a belief in consent to the acts alleged in Charges 3 and 4 but also references to the evidence of what the applicant may have believed at the time of those acts in light of his belief in MB’s consent, and the fact of her consent, to earlier sexual acts that involved similar allegations of aggressive, brutish and humiliating words and behaviour.

(6) The ‘real issues in the trial’

[63]It might be thought curious that s 37AA, in its preamble, refers only to whether the accused was ‘aware that the complainant was not consenting or might not have been consenting’ (the first limb of mens rea – in either s 38(2)(a)(i) or s 39(2)(a)(i)) and not as well to whether the accused ‘gave no thought to whether the complainant was not or might not be consenting’ (the second limb – in either s 38(2)(a)(ii) or s 39(2)(a)(ii)). However, it may well be that it was considered unnecessary to include the latter limb of mens rea in s 37AA because the reasonable possibility of any belief in consent by the accused – even a belief that the complainant might be or probably was consenting – would amount to giving thought to whether the complainant was not or might not be consenting, such that that limb of mens rea was necessarily negated. On the other hand, as the Court explained in The Queen v Getachew (2012) 248 CLR 22, 33[26]-[27], such a state of belief would be no answer to a charge of rape (or indecent assault), because it would admit of an awareness that the complainant might not be consenting, and therefore would not negate the second part of the first limb of mens rea in either s 38(2)(a)(i) or s 39(2)(a)(i).

It is necessary, at this point, to return to the reasons in The Queen v Getachew. Immediately preceding the last of the paragraphs from those reasons set out above, the Court said this:[64]

[29] The directions to be given to a jury on a trial for rape are to be moulded in the light of the proper construction of the relevant provisions of the Crimes Act and, no less importantly, having regard to the real issues in the trial. As this Court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues.

[64]The Queen v Getachew (2012) 248 CLR 22, 34-35[29]; see also 27[10].

It might be said that this passage lends support to Mr Boyce’s submission that the Court in The Queen v Getachew should not be taken to have decided that in all cases will the leading of evidence as contemplated in s 37AA amount to raising a fact in issue for the purposes of s 37(1), for, if it were otherwise, the judge would be required to direct on mens rea in circumstances where to do so might undercut an accused’s defence.

While the point need not be decided now that s 16(1) of the JDA 2015 is in operation, nevertheless, the difficulties I have in accepting that submission are these. First, despite mentioning Alford v Magee[65] and other cases when referring to the ‘real issues in the trial’,[66] nowhere in the judgment does the Court retreat from or qualify the reasoning to the effect that ‘s 37(1) required the giving of the directions s 37AA set out … if evidence was led or an assertion made of the identified kind’. Indeed, immediately after the reference to the importance of ‘having regard to the real issues in the trial’, their Honours reiterate that, ‘[i]n a case where s 37AA is engaged, the directions required by that section must be given’.[67]
[65]Alford v Magee (1952) 85 CLR 437, 466.
[66]The Queen v Getachew (2012) 248 CLR 22, 27[10] fn 20 & 34-35[29] fn 35.
[67]Ibid, 34[29]-35[30].

Secondly, in The Queen v Getachew itself, the respondent’s case at trial was that he had not sexually penetrated the complainant. The trial judge nevertheless gave directions on the mental element. There was no dispute on appeal that the judge had been right to tell the jury, as he did, that the respondent had not raised, as an issue at the trial, that he had thought or believed that the complainant was consenting to penetration. His appeal succeeded in this Court because the judge’s directions had ‘conflated the complainant’s lack of consent with mens rea’ and, more particularly, because the Court accepted that the jury should have been directed that ‘the prosecution might fail to prove the mental element … even though a belief [in the] consent [of the complainant] … was unreasonable because the accused was aware that the complainant might be asleep’.[68]
[68]Ibid, 26[4]-27[9].

In the High Court, the Director’s appeal was allowed because, on closer analysis, this Court had been wrong to conclude that there was evidence that raised a question about the accused’s belief in consent, which in turn meant that there was no occasion to give a direction of the kind contemplated by s 37AA.[69] But there was no suggestion that, if there had been such evidence, s 37AA would have had no application on the bases that the respondent’s defence at trial was that he did not penetrate the complainant, or that his counsel had not sought any such direction or that to have given the additional direction might have undercut his defence.
[69]Ibid, 35[31]-36[36].

Thirdly, in those circumstances, it might be said that, in speaking of the ‘real issues in the trial’, the Court included reference to whether there was evidence that engaged s 37AA, despite the fact that the respondent’s defence at trial was a lack of penetration and despite his acquiescence in the jury direction that he had not raised, as an issue, that he thought or believed the complainant was consenting to penetration. Thus, it may be that, even if an accused’s stated defence, through counsel, to an allegation like rape or indecent assault, is that the alleged act did not occur, that does not preclude a conclusion that there was a ‘real issue at trial’ as to whether the evidence does in fact prove, beyond reasonable doubt, the element of the requisite mens rea, at least in circumstances where there are mandatory provisions such as ss 37 and 37AA.

None of that is to say that, in a particular case, if a judge erroneously failed to give a direction pursuant to s 37AA in the face of evidence that raised a belief in consent, it would not be open to dismiss an accused’s appeal on the basis that no substantial miscarriage of justice actually occurred. Nor is it to say that a failure to take exception and trial counsel’s forensic choice could not be factors relevant to determining whether an appeal should succeed or not. For some considerable time, it has been accepted by this Court that a failure by trial counsel to take exception may prevent an issue being raised on appeal.[70] But it does seem, on a fair reading of the Court’s judgment in The Queen v Getachew, at least on the law as it stood at the time, that a judge must give a direction under s 37AA where evidence is led of a belief in consent.
[70]See, e.g., R v Wright [1999] 3 VR 355, 356[2] (per Phillips CJ and Charles JA); see also 360[16]-361[20] (per Callaway JA).

The last sentence contains an important qualification. In The Queen v Getachew, at the time of the trial, the appeal to this Court and the appeal to the High Court alike, there was no equivalent of the JDA 2015 (or its predecessor, the JDA 2013) in operation. Further, although I expect it may be a less important difference, the two appeals were conducted pursuant to s 568 of the Crimes Act, which was the common form appeal provision, rather than under the current appeal provisions in the CPA.

Whatever the fate of this part of Ground 3 may have been under that previous regime, the complaint must be considered under the law as it applied at trial and as applies to the determination of this application, to which I now turn.

(g) No ‘substantial and compelling reasons’ and no ‘substantial miscarriage of justice’

In particular, while I have concluded that ss 37 and 37AA were engaged at trial, the application of those provisions must be considered in light of s 16 the JDA 2015, which also applied to this trial and applies to the determination of this application, as do s 276(1)(b) and (c) of the CPA.

It is at this point in the analysis that my view begins to align with the reasons Ashley and Priest JJA and the submissions of Mr Boyce. For, while I accept that there would be sound reasons for seeking directions of the type required by s 37AA, I also accept that defence counsel, when weighing all relevant considerations, may well have seen a serious forensic disadvantage in taking that course.

In my view, a provision like s 37AA, while mandatory in nature, cannot compel the giving of directions if, in counsel’s sound forensic judgment, it is in his client’s best interests not to have the directions. On the one hand, the obvious advantage of the directions is that they might have opened the jury’s minds to another basis for acquittal on Charges 3 and 4 (and perhaps Charge 5[71]). On the other, the equally obvious disadvantage is that the applicant’s stated defence – that the events alleged in Charges 3, 4 and 5 did not occur – might be undermined by having the jury spend a deal of time considering an alternative but forensically difficult defence which, in a sense, would assume the truth and reliability of MB’s allegation that those events occurred. It would have been well open to counsel to plump for the latter line of thought as dictating the applicant’s course in this trial.
[71]While the point was not explored on the application, it may be that, if a jury acquitted on Charges 3 and 4 because of a belief in consent, the same jury would consider that the threat was not made without a lawful excuse (see s 20 of the Crimes Act 1958 (Vic)).

Counsel’s conduct of the trial is consistent with the view that he knowingly took that course, for at least two reasons. First, if he had any pangs of concern that his client was missing out on an alternative defence, it is likely that he would have raised the matter when the judge indicated, both in jury’s absence and to them in his directions, that he understood that the applicant’s defence was that the events alleged in Charges 3, 4 and 5 did not occur and that, if they did, there was no issue about the other elements.

Secondly, in his final address, counsel referred, albeit briefly and perhaps obliquely, to (part of) the evidence suggesting the applicant’s belief in consent. After mentioning MB’s evidence that, following the alleged rape, she sat on the toilet and then had some more ice, counsel said this: ‘It’s at this point she says that she’s told [Mr] Gul that he’s raped her. She says he laughed it off. He said, “Stop playing games, [MB].”’ While I do not understand the point that counsel was seeking to make, I am not satisfied that it was part of an attempt to rely on the applicant’s alleged response as indicating a belief in consent. If it were, it is nigh on certain that counsel would have made more of the argument or, at the very least, requested a direction of the type contemplated by s 37AA.

Another possibility is that, despite the foregoing, defence counsel simply missed the point. Or he might have turned his mind to it and concluded that, in context, the words allegedly uttered did not raise, or did not sufficiently raise, a belief in consent so as to warrant the argument or a direction.

But, even though that is possible, I think it is far more likely that, quite understandably, counsel knowingly took the view that, despite the availability of the argument – and supporting directions – as to belief in consent, his client’s interests were better served by refraining from developing that argument or seeking directions on the topic.

Thus, in all of the circumstances, I am not satisfied that there were substantial and compelling reasons for giving such directions.

In view of that conclusion, to borrow from and adapt Mr Boyce’s written submission, the mandatory terms of s 37AA and the Court’s assessment of whether the applicant has satisfied the terms of either s 276(1)(b) or (c) of the CPA run ‘headlong into [the] legislative bar’ in s 16(1) of the JDA 2015. For there can be no ‘substantial miscarriage of justice’, within the meaning of s 276(1)(b) or (c), if the Court is not satisfied that, in the circumstances that pertained at trial, there were substantial and compelling reasons for giving the directions sought on appeal.

I should add this. It will be noticed that my conclusions as to ‘substantial and compelling reasons’, within the meaning of s 16(1), differ under Ground 1(a) and this first part of Ground 3. While the following should not be taken either as simplifying the reasons I have given or as determinative in other cases, nevertheless, an important factor animating my thinking is that, in the case of Ground 1(a),[72] the error served to undermine the applicant’s defence – that he did not commit the acts alleged in Charges 3, 4 and 5 – whereas, in the case of Ground 3, the error, if it be an error, went to a defence that the applicant never sought to run, and understandably so.
[72]And also Ground 1(b) (see below).

(h) Conclusion on Ground 3, Part 1

For the foregoing reasons, while I would grant leave to add this first part Ground 3, I would not uphold it.

I should add that, if I considered that there were substantial and compelling reasons for giving the directions Mr Morrissey submitted should have been given, I would have been satisfied that the failure to give such directions resulted in a substantial miscarriage of justice. That must be so because, in my opinion, such a failure would have deprived the applicant of the availability of a defence open on the evidence – and, thereby, a real chance of acquittal – in circumstances where a conviction was far from inevitable.

Ground 3, Part 2: Failure adequately to direct on consent
(a) Introduction

I turn now to the second part of Ground 3.

Mr Morrissey seeks to add this part of Ground 3 following further consideration of the matters discussed at the hearing.

In short, while s 37AAA also was potentially applicable at this trial, in my view, there was no evidence of consent relevant to Charges 3 and 4 that engaged that provision. Further, given the way the case was conducted, there were no substantial and compelling reasons to give any directions on consent. Thus, despite a complete failure to direct on consent on Charge 3 (indecent assault), despite directions on consent on Charge 4 (rape) that were incomplete, and despite directions on both charges that tended to foreclose the jury’s consideration of that element against the applicant, those errors did not result in any substantial miscarriage of justice.

(b) Parties’ submissions on directions on consent

Mr Morrissey made the following submissions:

a) First, MB’s ‘dramatic admission … that she consented to the two acts of digital penetration founding [Charges 1 and 2], despite clear previous allegations (leading to committal and [two] counts on the indictment) of non-consent and audible protest’, provided evidence of consent to the behaviour giving rise to Charges 3 and 4. Further, ‘the recantation raised a fruitful basis for cross-examination as to consent on [those charges], though it was not in itself evidence of consent’.

b) Secondly, s 37AAA, like s 37AA, applied to require such directions.

c) Thirdly, when outlining the elements of indecent assault for the purposes of Charge 3, the judge simply omitted to include the absence of consent. Then, in so far as that element might be implied when he gave directions on the mental element (which included references to inter alia awareness that MB was not or might not be consenting), the judge effectively directed the jury to find this element proved if satisfied that ‘the events occurred’.

d) Fourthly, when directing the element of consent in rape (Charge 4), the judge said ‘[a] person does not consent if they submit because of force, being held and things of that sort’. Mr Morrissey submitted that ‘the latter phrase was likely to confuse a jury which heard evidence of “things of that sort” in relation to Charges 1 and 2, leaving vague how, in the circumstances, consent was overborne’. He also submitted that, again, his Honour effectively directed the jury to find this element proved.

Mr Boyce’s responses were similar to those he made in response to the complaint in the first part of Ground 3. A brief version of his responses follows:

a) First, neither MB’s consent to the acts alleged in Charges 1 and 2 nor any other evidence made consent a fact in issue on Charges 3 and 4 or for the purposes of ss 37(1) and 37AAA.

b) Secondly, given the way the case was conducted and given, for good reason, the absence of any exception by counsel, consent was not put in issue and, accordingly, there could be no substantial and compelling reasons to give the directions now said to be required.

c) Thirdly, had such directions been given, they would have undercut the applicant’s defence.

(c) Analysis

I can deal with this part of Ground 3 relatively briefly.

First, for the reasons I gave earlier, s 37AAA, like ss 37 and 37AA, was potentially applicable at the applicant’s trial.

Secondly, in s 37AAA, there is no equivalent of the passage ‘if evidence is led or an assertion is made’ that appears in s 37AA. On my reading of The Queen v Getachew, that passage was critical to the Court’s construction of the words ‘If relevant to a fact in issue’ in s 37(1) and their relationship to s 37AA. Just quite where that leaves the construction of s 37AAA, I am not entirely sure. But, for reasons that follow, that question need not be resolved in this case.

For, thirdly, and in any event, I accept Mr Boyce’s submission that there was no evidence touching on Charges 3 and 4 that, on any construction of ss 37 and 37AAA, engaged those provisions. Indeed, in the circumstances of this case, I think the better view is that s 37(2) required the judge not give a direction of the kind referred to in s 37AAA.

It is notable that s 37AAA(c) provides that one of the directions to be given, where applicable, is that ‘the jury is not to regard a person as having freely agreed to a sexual act just because … (iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person’. That, with respect, seems to be consistent with common sense and with basic evidentiary principles. That MB changed her account of consent to the acts in Charges 1 and 2, and that she consented to other acts of a sexual nature on the same occasion, did not, of itself, in this case, provide evidence that she consented to the acts alleged in Charges 3 and 4. While it may be true, as Mr Morrissey submits, that MB’s change in account about consent to the acts of digital penetration, or her consent to those and other acts, could have provided a ‘fruitful basis for cross-examination’, no such cross-examination occurred and no evidence touching on consent was elicited.

Fourthly, even if that be wrong, given the way the case was conducted and given the absence of any exception to the judge’s directions, there were no substantial and compelling reasons to give any further or corrective directions on consent. While there may be other possible explanations for defence counsel’s conduct, I think it is likely either that he could not see any evidence enlivening the issue of consent in Charges 3 and 4 or that, even if he did, he did not seek any such directions, corrective or otherwise, because he took the view, reasonably, that his client’s interests were better served without such directions.

Thus, despite a complete failure to direct on consent on Charge 3 (indecent assault), despite directions on consent on Charge 4 (rape) that were incomplete and despite directions that tended to foreclose the jury’s consideration of that element against the applicant in respect of both Charges 3 and 4, those errors did not result in any substantial miscarriage of justice.

I should add that I expect that it will be a rare case in which a complete failure to direct on an element of an offence charged, particularly in a case where the complainant has recanted an allegation concerning the same element of a different but closely-related charge, does not amount to an error resulting in a substantial miscarriage of justice.

(d) Conclusion on Ground 3, Part 2

I would grant leave to add this second part Ground 3, particularly given that it concerns, inter alia, a complete failure to direct on an element of one of the offences charged. But, for the reasons I have given, I would not uphold that ground.

Ground 1(b): Failure to give directions on ‘context’
(a) Introduction

Finally, I turn to Ground 1(b).

Mr Morrissey seeks to add this ground following further consideration of the matters discussed at the hearing.

He submitted as follows: ‘Given that both consent and the mental element remained “live” on the evidence (notwithstanding the defence position that the incidents founding Charges 3 and 4 “did not occur”), the jury needed to be directed that the conduct associated with Charges 1 and 2 – forced digital-anal penetration in a coercive and disrespectful manner – was relevant only as context within which to assess whether he believed he had consent’.

While, for the reasons I have given for rejecting both parts of Ground 3, I do not accept Mr Morrissey’s reasons for the necessity of giving the direction he advocates, nevertheless, for the reasons explained when dealing with Ground 1(a), I accept that directions of that type, in accordance with s 27(2) of the JDA, should have been given.

(b) Analysis

Given the discussion of other grounds, I can deal with this ground relatively briefly.

For the reasons I have given under both parts of Ground 3 for rejecting those grounds, I do not accept that it was necessary for the judge to give any further directions on account of the view that, to use Mr Morrissey’s words, ‘both consent and the mental element remained “live” on the evidence’ and that ‘the jury needed to be directed that the conduct associated with Charges 1 and 2 – forced digital-anal penetration in a coercive and disrespectful manner – was relevant only as context within which to assess whether he believed he had consent’. There was no evidence enlivening the issue of consent in relation to Charges 3 and 4. And, while there was evidence of the applicant’s belief in consent, it is likely that sound forensic reasons caused counsel to choose not to agitate that issue.

However, as I said when dealing with Ground 1(a), I should have thought that most involved in the criminal law would take a request for a direction on ‘uncharged acts’ typically to include directions of the type contemplated by ss 27(2) and 29(1) of the JDA 2015. The direction that I have found should have been given under cover of Ground 1(a) is set out in s 29(1), which provides for an anti-tendency direction – or what is, in effect, an anti-propensity direction at common law.

As I also indicated, s 27(2) provides for the other aspects of a series of directions usually given on uncharged acts, which also are similar to those given at common law. Those directions include identification of how the other misconduct evidence is relevant and a direction not to use the evidence for any other purpose (s 27(2)(a)); if the evidence forms only part of the prosecution case, a direction informing the jury of that fact (s 27(2)(b)); and a direction that the jury must not decide the case based on prejudice arising from what they have heard about the accused (s 27(2)(c)).

In my view, these are the types of instruction that are the usual concomitant of, and should have accompanied, an anti-propensity/tendency direction of the type that should have been given in this trial. Juries must be instructed as much on the permissible use of evidence as on its impermissible use. In the applicant’s trial, the jury should have been instructed on precisely how the evidence of the acts alleged in Charges 1 and 2, and the surrounding acts of aggressive sexual behaviour, might be used; that it was not to be used for any other purpose; that it was not evidence that the acts alleged in Charges 3 and 4 (or Charge 5) occurred; and (while perhaps of less necessity given the generalized direction given on bias, prejudice and sympathy) that they were not to decide the case based on prejudice arising from what they have heard about the applicant. Such directions could only have assisted the applicant’s defence – that he did not commit the acts alleged in Charges 3, 4 and 5 – and would have served to correct the prosecutor’s flawed arguments in his final address.

Thus, it follows that, for effectively the same reasons I gave for concluding that there were substantial and compelling reasons for the giving of an anti-propensity/tendency direction of the type contemplated by s 29(1), I am satisfied that there are substantial and compelling reasons for giving directions of the type contemplated by s 27(2).

While I consider the failure to give an anti-propensity/tendency direction to be a more serious error in the context of this trial, I am satisfied nevertheless that failure to give the directions required by s 27(2) is also a serious error giving rise to a substantial miscarriage of justice.

(c) Conclusion on Ground 1(b)

I would grant leave to add Ground 1(b) and uphold that ground.

Conclusion and proposed orders

At the outset of these reasons, I set out my proposed orders more fully. In short, by reason of the errors disclosed by Grounds 1(a) and 1(b), the convictions and sentences on Charges 3, 4 and 5 must be set aside and there must be a new trial on those charges.

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[2017] VSCA 153

22 June 2017