Holland v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0168

KLAY EDWARD HOLLAND	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR, KAYE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2025
DATE OF JUDGMENT:	13 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 5
JUDGMENT APPEALED FROM:	[2023] VSC 510 (Beale J)

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CRIMINAL LAW – Appeal – Conviction – Rape – Insertion of barrel of imitation rifle into victim’s anus – Revenge for victim breaking into home and threatening occupants with a knife – Whether jury’s verdict was unreasonable or cannot be supported having regard to the evidence – Whether witnesses were so unreliable and lacking in credibility as to raise reasonable doubt – Appropriate jury directions given by the sentencing judge – Central witness evidence was supported by forensic and pathological evidence – Open to the jury to be satisfied beyond reasonable doubt – Leave to appeal refused.

Criminal Procedure Act 2009, s 276(1)(a); Evidence Act 2008, ss 38, 128; Jury Directions Act 2015, s 32.

Hocking v Bell [1945] 71 CLR 430; M v The Queen (1994) 181 CLR 487; Paulson v The King [2024] VSCA 188; Pell v The Queen (2020) 268 CLR 123; R v Baden-Clay (2016) 258 CLR 308, applied.

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Counsel
Applicant:		Ms M J Brown
Respondent:		Mr D Glynn with Mr J O’Connor
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA
T FORREST JA:

The applicant, Klay Holland, faced trial in the Supreme Court for a charge of manslaughter and a charge of rape. He was acquitted of manslaughter and convicted of rape. This application for leave to appeal contends that the rape verdict is unsafe and unsatisfactory pursuant to s 276(1)(a) of the Criminal Procedure Act 2009 (‘the Act’).[1]
[1]Criminal Procedure Act 2009, s 276(1)(a).
We have determined that the application for leave to appeal will be refused. What follows are our reasons for that determination.

Crown case — summary

In the evening of 15 March 2021, a number of people, including the deceased man Shane Cox engaged in a home invasion of a residential unit in Melton. This was a reputed drug trafficking venue. After a time, this group left the premises having apparently threatened a number of occupants and stolen a pet dog.
Later in the evening, Mr Cox returned to the unit, affected by methylamphetamine and armed with a knife. A number of people were present at the unit when he returned. He threatened one Matthew Fisher with a knife and commenced to rummage through the unit. The applicant used a baseball bat to subdue Mr Cox by striking him repeatedly with the bat. It must be borne steadily in mind that the applicant was acquitted of the manslaughter charge.
At some stage, Mr Cox was hogtied and he was detained for several hours. During this period of detention, the applicant raped Mr Cox by inserting the barrel of an imitation rifle into his anus. This act constituted charge 2 on the indictment. This offending (as opened to the jury) was followed by a second act of penetration when the applicant again inserted the imitation firearm into Mr Cox’s anus whilst the applicant was on a ‘Face Time’ phone call. This evidence constituted evidence of an uncharged act. Mr Cox subsequently died.
The applicant did not give evidence at the trial and there was no evidence of any statements made by him to police.

The question on this appeal

The ground of appeal invites the question as to whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the applicant’s guilt of the charge of rape.

Legal principles

Section 276(1)(a) of the Act provides that this Court must allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.[2]
[2]Ibid.
The principles that this Court must apply are as follows:
(a)The applicant must demonstrate that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the offence charged.[3]
(b)The appellate Court must make its own independent assessment of the evidence giving full weight to the jury’s advantage in seeing and hearing the evidence.[4]
(c)The jury is ‘the constitutional tribunal for deciding issues of fact’.[5] To set aside a jury verdict on the ground that it is unreasonable is a ‘serious step’ and not to be taken without particular regard to the jury’s advantage of seeing and hearing the evidence.[6]
(d)The court must proceed on the basis that the jury accepted that the evidence of material witnesses relevant to the accusation of rape were credible and reliable.[7] The function of this Court is then to examine the record to see whether, notwithstanding that assessment, either by reason of other evidence, inconsistencies, discrepancies, or other inadequacy, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[8]
[3]Paulson v The King [2024] VSCA 188; M v The Queen (1994) 181 CLR 487, 492–3; Plaza Lopez v The King 2024 VSCA 265 [68].
[4]M v The Queen (1994) 181 CLR 487, 492–3.
[5]Hocking v Bell [1945] 71 CLR 430, 440 (Latham CJ) quoted in R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Bell, Keane and Gordon JJ).
[6]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Bell, Keane and Gordon JJ).
[7]Pell v The Queen (2020) 268 CLR 123, 145 [39].
[8]Ibid.

Summary of relevant evidence

We shall not summarise all the evidence in the trial. As we have observed, the sole issue on this application is whether the evidence examined as a whole permitted the jury to be satisfied beyond reasonable doubt that the applicant used an imitation firearm to penetrate the deceased’s anus. The evidence concerning the applicant’s activities in this regard came principally from four sources, and is set out below.
(1)Dianne Cutmore
(a)Ms Cutmore — evidence in chief
Ms Cutmore stated in evidence that she knew Tania Kerr (‘Tania’) who lived in a unit in Melton. On 15 March 2021, Ms Cutmore went to those premises as it was getting dark. Present were a number of other young people. They included Tania, Tom Briody (‘Tom’), Moana Tauira (‘Moana’), Tania’s ex-partner (Pasikale Seiulialii, referred to as ‘Junior’ in the trial), the applicant, Lewis Brown (‘Lewis’) and ‘another short guy’ (probably Matthew Fisher).
The witness gave the balance of her statement under cover of a certificate granted pursuant to s 128 of the Evidence Act 2008.[9]
[9]This provision relates to privilege in respect of self-incrimination when a witness objects to giving evidence in a proceeding which may later prove the witness has committed an offence: Evidence Act 2008, s 128.
Relevantly, Ms Cutmore said that she then consumed GHB with Tania. At some stage, Tania left the unit with Moana. Ms Cutmore slept for a time and was woken by a commotion at the front door. A person wearing ‘doctor’s gloves’ was trying to enter through the front door. The applicant and Ms Cutmore managed to prevent that entry and close the door. The man then entered through the back door wearing a hoodie and a COVID-19 mask. He was carrying a knife in his hand. He said, ‘Give me the money and the drugs’. Ms Cutmore ran into Tania’s bedroom and shut and locked the door.
Ms Cutmore could hear scuffling. She located a baseball bat in that bedroom. The applicant knocked on the bedroom door. She opened the door and gave the bat to the applicant, who instructed her to lock herself back in the bedroom. Ms Cutmore locked the bedroom door again. She heard the intruder’s voice continuing to ask for drugs and money and the applicant replying that there was nothing there. Ms Cutmore heard what sounded like wrestling. After a time she heard the applicant say it was ok for her to come out of the bedroom.
The applicant was standing up holding the baseball bat aloft, and the intruder was sitting on the floor. The applicant told him to stay down, and told Ms Cutmore to ring Tania, which she did. Tania told her not to call the police. Ms Cutmore complied with this order. Lewis and the ‘short guy’ were also in the room standing behind the couch.
Ms Cutmore saw that the ‘[the intruder] kept trying to get up and go towards [the applicant] but [the applicant] had to keep hitting him back down’. Ms Cutmore testified that the applicant hit the intruder ‘in the head’ a few times, and that ‘[the applicant] ended up giving [the intruder] a good one in the head that knocked him down and [the intruder] dropped the knife’.
The applicant hit the intruder further in the chest and head a few times. Ms Cutmore told the applicant to stop because ‘it was scary’. The applicant then told the intruder to apologise which was forthcoming.
Ms Cutmore testified that ‘because [the intruder] kept getting up … [the applicant] asked me to get the gun … out of the bag’. The gun was in the applicant’s bag and she observed ‘[the gun] wasn’t real’. Ms Cutmore retrieved the imitation firearm and gave it to the applicant.
Ms Cutmore saw the applicant roll the intruder over, pull his pants down, ‘put [the gun’ in [the intruder’s] mouth and then up his bum.’ The applicant then put the gun back in the intruder’s mouth. The applicant had changed out of his clothes into a towel before this so that he would not get blood on himself.
According to Ms Cutmore, the applicant also broke the intruder’s arm using two hands positioned either side of his elbow.
At some point, the intruder stopped trying to get up.
At some stage, the intruder was tied up by the legs and hands. His mouth was covered by tape. His head was ‘really swollen’, his eye was ‘out’ and he was bleeding.
The applicant put the gun ‘back in his bum’ a further time when the applicant was Face-Timing to a friend ‘… just telling him what happened’.
During the course of the evening, Tania and Moana came back to the house a few times.
Ms Cutmore stated that she was unable to provide a precise sequence of events of that evening because she had bad dreams which ‘put everything in different spots,’ but she had remembered the events themselves.
Tom (Mr Briody) came to the house right at the end. Another man came in and left after speaking with the applicant and ‘[seeing] the [intruder]’. This occurred while the intruder was tied up and injured.
Later, Ms Cutmore left the house with the applicant as a result of an argument with Tania. Before she left, she cleaned up ‘blood and the fingerprints’ at the applicant’s instructions.
(b)Ms Cutmore — examination under Evidence Act 2008, s 38
An application under s 38 of the Evidence Act 2008 was allowed and the prosecutor was permitted to cross-examine Ms Cutmore.[10] She agreed that she had told the police that the applicant had hit the intruder with the baseball bat at least 15 times to his arms, legs, head and chest. The intruder seemed to be ‘in and out of consciousness’.
[10]Evidence Act 2008, s 38.
Then the applicant tied him up ‘like a hog’. Ms Cutmore said that this was a true account to police.
On the drive home with the applicant, he smashed both of their mobile phones and threw them out the window.
(c)Ms Cutmore — cross-examination
In cross-examination by the applicant’s counsel, Ms Cutmore said she took the baseball bat for her own protection and did not think the applicant had a chance against the much bigger, aggressive and armed intruder.
She repeated her account of locking herself in the bedroom. The applicant and Ms Cutmore told Tania to call the police, but Tania refused.
The applicant searched the man and came across a Stanley knife and a screwdriver. Until the applicant discovered these other weapons, the only time he struck the intruder was when the intruder got up and rushed towards him.
Ms Cutmore acknowledged that it was possible that she may have messed up who did certain things. She acknowledged that it was possible that it was Lewis who struck the intruder after the contents of his pockets were discovered; it could have also been the ‘short man’.
Ms Cutmore recalled most of the events confidently but acknowledged there were ‘bits … that could be wrong’:
You say it’s at that time [the applicant] puts the gun in the man’s bum?---Yeah.
You’re wrong about it being [the applicant] who put the gun in the man’s anus?
---Pardon?
You’re wrong about it being [the applicant] who put the gun in the man’s anus. He never did that?---Could I be wrong?
I’m suggesting you are wrong?---No, I don’t think so.
Likewise, the gun in the man’s mouth?---No, I’m pretty sure it was.
Later in cross-examination, Ms Cutmore conceded that she used cannabis daily in March 2021. She also used ice that night and ‘juice’ (GHB). Tania supplied her with drugs on occasion.
When a short stocky man arrived, he took over things straight away telling people to clean up and wipe down surfaces. We observe this is probably a man referred to by Mr Fisher as ‘Maxi’.
When Ms Cutmore left the unit, the intruder was still breathing.
(2)Matthew Fisher
(a)Mr Fisher — evidence in chief
A section 128 certificate under the Evidence Act 2008 was granted when Mr Fisher gave evidence at the trial.[11] Mr Fisher stated that on the evening of 15 March 2021, he went to Tania’s unit with the purpose of purchasing ice from her. When he arrived at about 5:00 pm or 5:30 pm, Tania was asleep. Her boyfriend was there, who Mr Fisher knew to be named ‘Marlow’.[12] A man who Mr Fisher knew as ‘Tommy’ was also at the unit.[13] Mr Fisher left the unit for a couple of hours to go to the adjacent unit and then came back. By this time Tania was awake and Marlow, Tommy and Lewis were also there. The applicant arrived just after Mr Fisher returned. Ms Cutmore arrived at about the same time.
[11]Ibid s 128.
[12]Other evidence established that Tania’s boyfriend was also known as Moana.
[13]Other evidence established that ‘Tommy’s’ full name was Tom Briody.
Mr Fisher used ice at the unit. Tania and Marlow left. Mr Fisher remained in the unit with Lewis, Tommy, Ms Cutmore and the applicant. At some stage later, a man Mr Fisher knew as ‘Maxi’ arrived. When Mr Fisher was next door, he became aware that other people had gone to Tania’s unit with guns. Those people had gone by the time he returned to the unit.
Mr Fisher testified that a man came to the front door of Tania’s unit and started bashing it. The man could not get through the front door but entered the unit through the back door. The intruder had a knife in his hand. Mr Fisher hid in a cupboard. The intruder discovered Mr Fisher hiding and ‘held a knife to [him] … a big Rambo knife’. The intruder was waiving around the knife erratically. The intruder was looking for a recorder ‘for the cameras’, which Mr Fisher understood to refer to the unit’s CCTV cameras.
The intruder moved out to the lounge room, ‘ripping everything out of the TV unit’. The applicant came into the loungeroom and hit the intruder with a baseball bat multiple times in the head. Over a period of about four or five hours, the applicant kept hitting the intruder with the bat. The intruder kept trying to get up and get out. The applicant asked the intruder why he was ‘doing it’ and the reply was that he was looking for cameras because of the earlier group who had arrived with guns. Ms Cutmore was in the bedroom during this period.
Mr Fisher testified that the applicant had a fake gun which looked like a rifle and was made of plastic. Mr Fisher stated he did not see the applicant doing anything else in the unit.
When Maxi arrived at the unit, he hogtied the intruder about halfway through the four or five hour period. The applicant was there at the time. Sometime later, Maxi left the unit. The intruder was still tied up and was ‘pretty bruised up and bleeding’.
Tania subsequently told Mr Fisher that the intruder had died and told him to ‘say nothing to no-one [sic]’. After talking to his partner, he contacted Crime Stoppers and subsequently made a police statement.
(b)Mr Fisher — examination under Evidence Act 2008, s 38
The prosecutor was permitted to cross-examine Mr Fisher pursuant to s 38 of the Evidence Act 2008.[14] The witness agreed that he made a statement to police on 20 March 2021. He agreed he said the following:
No-one else hit the [intruder] except [the applicant]. At one point [the applicant] got this fake gun, it was like a plastic .308 rifle. The [intruder]’s pants were loose and they were half down. [The applicant] pulled [the intruder’s] pants down and grabbed the fake gun and shoved it as hard as he could up the guy’s arse. I don’t think the guy was unconscious when [the applicant] did that because he sort of jumped when [the applicant] shoved it up his arse. [The applicant] was proud of himself, he was bragging. He said, ‘I just shoved this up his arse. Look, there’s shit on the gun’.
[14]Evidence Act 2008, s 38.
The prosecutor then continued to question Mr Fisher, as follows:
So that is what you told police in your statement on 20 March 2021. First of all, do you remember telling police that?---Yes.
Was that the truth?---Yes.
Is that something that you saw yourself?---Yes.
And are you able to say at what point during this four-to-five-hour period you saw that happen?---About halfway, three-quarters of the way through. I’m not sure exactly.
(c)Mr Fisher — cross-examination
Relevantly in cross-examination, the witness conceded he was quite upset after the intruder entered the unit. It was put to Mr Fisher that he never saw the applicant insert the imitation firearm into the intruder’s anus. He replied, ‘Yeah, I did’. He said it happened twice: ‘The first time I didn’t see it, the second time I did.’ He stated that he was told about the first penetration by Tommy (Mr Briody).
When Maxi arrived at the unit, he gave orders relating to cleaning up and for the applicant to have a shower.
In re-examination, Mr Fisher said that the applicant threatened him that he should say ‘nothing to no-one ... or else ...’.
(3)Tania Kerr
Ms Kerr lived at her unit in Melton with her partner, Moana. On the evening of 15 March 2021, she was there with Moana and Lewis. She described a home invasion earlier that day where ‘Sammy the Turk’ and others went through her unit, looking for her ex-partner, ‘Junior’. At about 6:00 pm that evening, she left her unit to visit her children. She received a phone call whilst out of the unit from Ms Cutmore saying something about taking a person hostage. After a while, Ms Kerr returned home.
When she walked in the door of her unit, she saw a man on the floor not moving much, gasping for air and hunched up. The applicant was standing near him, yelling at the man to identify himself. Ms Kerr testified that she saw the applicant punch the man in the face on countless occasions. The man’s face was swollen and the lounge room was covered in blood.
The applicant told Ms Kerr that this man had attacked Ms Cutmore and that the applicant had grabbed a baseball bat and hit him 10 times on the head. The applicant told her to keep her mouth shut about it. She said she left the house at that point and went with Moana to his house. She returned to her unit to collect her belongings and saw the man tied up and gagged. He was gargling and moaning. The applicant was near the man. Ms Kerr testified that:
[The applicant] was holding what looked like a gel blaster gun. It looked fake. It looked plastic at the end. It was about a metre tall. It was pretty big … I seen [sic] [the applicant] holding it and it had poo on the end of it and I asked — he said that he got what he deserved and he’d shoved it up the man’s arse … The man’s pants were still down around his ankles.

Ms Kerr testified that the applicant told her later that night to ask Tom (Mr Briody) to ‘take the rap’ for him, because ‘[the applicant] couldn’t afford to get into trouble’. The applicant ‘pretty much threatened’ her and her children, ‘so I did fear for my life for a minute’, she said.
In cross-examination, Ms Kerr denied that when she arrived back at the unit, the applicant said that they should call the police. The conversation where the applicant said he ‘put a gun in the man’s arse’ occurred in subsequent return to the unit. Later in cross-examination, the following exchange occurred:
The acts you attribute to [the applicant], could you be mistaken about that? Could you be wrong?---I could be wrong about a lot right now. I’m just trying to do the best I can in remembering but I don’t remember very much.
For instance, you could be wrong when you’ve given evidence that it was [the applicant] you saw kneeling beside the man, punching him to the head?---No, I remember seeing [the applicant].
What about the things that you’ve given evidence about that were said while you were at the house?---No.
So you’re firm on that?---I remember things being said.
HIS HONOUR: Said by whom?
Defence Counsel: Said by [the applicant], Your Honour?---Which part?
For instance, the threats?---I remember him threaten me as clear as day.
The comment about the gun?---M’hmm.
The same again, you’re clear as day on that?---I didn’t see that happen.
No, what he said. Is it possible you’ve got that wrong and somebody else said that or someone told you that [the applicant] had said that?---There’s been a lot of things, like I said, happen.
I appreciate that, Ms Kerr?---A lot of things have been said.
Do I take it from your answer then that it’s possible you’re mistaken?---That’s why I’ve blocked out everybody and not associate myself with anybody.
In re-examination, Ms Kerr said that the account she gave in examination in chief concerning what the applicant said he did with the gun was true.
(4)Forensic evidence
(a)Dr Yeliena Baber, Forensic Pathologist
Dr Baber is a forensic pathologist employed by the Victorian Institute of Forensic Medicine. Dr Baber gave evidence of her autopsy findings in this matter. She outlined extensive injuries into the deceased’s brain, nose, cheekbones, eyes, temple, teeth, jaw, lips and neck. There were multiple underlying fractures including a fracture to the left temporal region and there was also evidence of extensive subarachnoid haemorrhaging, bilateral lateral frontotemporal contusions, swelling and a focal tear to the corpus callosum. This was evidence of substantial blunt-force trauma to the head.
It is unnecessary to recite the further extensive injuries to Mr Cox’s body. Most were caused by the application of blunt-force trauma. Relevantly to this appeal, Dr Baber said there was a quite extensive fracture to the elbow with skin degloved at that site. It was a blunt-force injury that moved the skin and fractured the elbow.
The following passage is recorded from Dr Baber’s evidence in chief:
Moving away from the limbs, did you also examine the deceased’s anus?---Yes, I did.
Can you tell us what you noticed there?---So initially, on external examination, there was dried blood around the anal region and the buttocks. And then, as part of the internal examination - - -
Just stop there for a moment, if I can. Can I just get you — you said there was dry blood around the anus and both the buttocks?---Yes.
Was there a small amount of dark blood around the anal verge?---Yes.
Can you just explain to us what that is?---It’s your ring, basically, the sphincter. The anal verge between the rectum, which is the inside of your bum, and the anus, which is the outside. So that’s the anal verge.
So there’s, effectively, blood there?---Yes, dried blood.
And did you conduct an internal examination of the rectum?---Yes.
Can you tell us what you did and what you found?---So when the bowel is taken out as part of the internal examination, it’s taken out probably just before the anal verge, so you don’t kind of make the body look too bad afterwards. So we don’t distort the sphincter itself. So taking out the rectum, there was bruising and tears to the lining, the mucosa of the rectum, at one point in particular, so on one side of it.
So you opened the rectum; is that correct?---Correct.
Did you observe a 3 by 3 centimetre area where you say the mucosa was disturbed?---Yes.
Can you just explain to us when you say the mucosa is disturbed, what that actually means?---Okay. I’ll just briefly read what I said and then explain it. The mucosa has been stripped off from interior to superior. So that implies a direction of injury, so there are tags of damaged skin at the top but not at the bottom. So, effectively, it’s been scraped off from bottom to top and that was present, with bruising, in that 3 by 10 centimetre area.
You said that it is indicative of from bottom to top?---Yes.
Is that in terms of how the injury was sustained?---Yes.
And when you refer to the bottom, are you referring to the entry?---Yes, towards the anal verge. I probably should have chosen a better word.
Did you also observe patchy focal haemorrhage?---Yes, so patchy bleeding.
Patchy bleeding?---Yes.
What does that indicate to us?---That he was alive when this injury occurred.
The pathologist’s evidence continued on this topic on the next court day:
… Now, Doctor, before we finished on Tuesday, we’d just gone through the injury to the deceased man’s rectum. I just want to ask a couple more questions about that. Was there anything that might explain the bleeding you described other than injury? Was there any illness or tumour, for example?---No, there wasn’t.
And you said that there were tags of the damaged skin at the top but not at the bottom of the injury and that implies the direction of the injury?---Correct.
Can you just explain what you mean, ‘that implies the direction of the injury’? ---So as something moved against the surface from underneath to the top, it’s scraped the surface of the mucosa, leaving the tags hanging from the top, so it’s sort of undermined the surface as it goes in an upward direction.
As it goes in an upwards - - -?---Yes.
I’m just going to put a scenario to you. If somebody is penetrated anally with an object, would you expect it to cause that kind of an injury?---Yes.
Did you also take a sample of that injury and review it under the microscope?
---Yes, I did.
What did your microscopic examination reveal?---It showed some red blood cells and acute inflammatory cells in between the muscle fibres, which indicates that the injury was sustained whilst he was alive.
The evidence of the four witnesses set out above is the central evidence upon which the applicant’s conviction for rape was founded. Other more peripheral evidence was relied upon, both at trial and in this application that was said to impugn the evidence of witnesses Ms Cutmore, Mr Fisher and Ms Kerr to such an extent that the jury must have had a reasonable doubt. We shall refer to the source of that evidence when considering this contention.

This appeal

Applicant’s submission

Counsel for the applicant correctly submitted that the prosecution case on the charge of rape essentially relied on:
(a)Matthew Fisher’s evidence;
(b)Dianne Cutmore’s evidence;
(c)Tania Kerr’s evidence; and
(d)The forensic evidence of Dr Yeliena Baber and others.
The applicant contended that the evidence of Mr Fisher, Ms Cutmore and Ms Kerr was so riddled with issues that the jury, had they acted in accordance with their oath, must have entertained a reasonable doubt. Counsel accepted that the jury was in the best position to evaluate credibility and reliability issues, and that the trial judge directed the jury impeccably on these issues. Notwithstanding this, counsel contended that the evidence was so deficient in so many respects that no jury acting properly could have accepted it.
It was undisputed at trial and on this application that Mr Cox did not consent to any anal penetration and if penetration occurred in the manner alleged, the person who committed the offence could not have reasonably believed that Mr Cox was consenting.[15] Put another way, the only live issues on the charge of rape were:
(i)whether the act of penetration occurred; and
(ii)whether the applicant was responsible for that penetration.

Respondent’s submission

[15]Pursuant to Crimes Act 1958, s 28(1), consent and reasonable belief in consent are elements of proof in a charge of rape. These elements were not in dispute at the applicant’s trial.

The respondent contended that the evidence of Ms Cutmore and Mr Fisher (the only two witnesses to the actual penetration) was satisfactory on the central issue of penetration; if it was successfully challenged at all, it was only on peripheral, relatively unimportant issues. Insofar as Ms Kerr was concerned, the only evidence directly relevant to the rape charge was of the direct admission made by the applicant to her and the witness remained firm on the fact and the content of that admission.

Analysis

It is convenient to consider the firearm evidence first. In our view, the conclusion that the imitation firearm was inserted into Mr Cox’s anus while he was still alive was comfortably established on the evidence:
(i)Mr Cox’s anus was lacerated in a fashion consistent with the insertion of the barrel of the relevant imitation firearm, while Mr Cox was still alive.[16] There were tears and bruising to the lining of the mucosa and rectum;[17]
(ii)Mr Cox’s overwhelmingly likely DNA was detected on the barrel of that firearm. Evidence to this effect was given by Ms Kate Outteridge, Forensic Officer with Victoria Police;
(iii)Witness Ms Kerr stated in evidence that the applicant was standing near a gargling and moaning Mr Cox with ‘what looked like a gel blaster gun’ which ‘was pretty big’, ‘looked fake’, and ‘had poo on the end of it’;
(iv)Witnesses Ms Cutmore and Mr Fisher provided direct evidence of this anal penetration.[18]
[16]Forensic evidence given by Dr Yeleina Baber, Forensic Pathologist.
[17]Ibid.
[18]See paragraphs [19], [46]–[47] of these reasons.
The jury must have accepted, as do we, that the firearm was inserted into Mr Cox’s anus while he was alive.
The only remaining question therefore was whether — on the evidence of one or more of Ms Cutmore, Mr Fisher or Ms Kerr — it was open to the jury to conclude that this penetration was effected by the applicant.

Analysis of evidence given by Ms Kerr and the collusion with Mr Briody

True it is that Ms Kerr’s evidence had many limitations. She admitted lying to police in her statement. It would have been well open to the jury to conclude that she lied about whether she continued her drug trafficking activities up to March 2021 after leaving her former address in 2020. Text messages and the layout of her unit (including a safe, CCTV cameras providing a feed into the house but not recording anything) and a lockable fortress-like bedroom door certainly suggest that activity was ongoing.
Witness Mr Briody (a former partner of Ms Kerr and father to two of her children) initially lied to the police in his statement and in his initial evidence to the court about:
(i)whether he was at the unit at any relevant time, and
(ii)the extent of Ms Kerr’s drug trafficking.
Towards the end of his evidence, he experienced an epiphany, recanted these aspects of his testimony and declared that Ms Kerr had prevailed upon him to tell these dreadful lies. But that was the extent of his revelatory declarations. The fact remains that Ms Kerr’s evidence about the applicant’s admissions to her was apparently untouched by the collusion between Ms Kerr and Mr Briody, which seemed to be more about Ms Kerr’s self-preservation than about falsely implicating the applicant.
We agree with the respondent’s submission that the evidence of collusion was limited both in scope and to these two witnesses only, and otherwise ‘went nowhere’.[19] These matters were all ventilated before the jury; other witnesses were challenged and they denied that they had colluded with Ms Kerr to give false evidence. The substance of the admissions made to Ms Kerr was supported by the forensic and pathological evidence and by the evidence of Ms Cutmore and Mr Fisher. The jury were given comprehensive unreliable witness directions by the sentencing judge.[20]
[19]As submitted by the respondent at the appeal hearing.
[20]Pursuant to Jury Directions Act2015, s 32.
The jury was far better placed to evaluate the evidence of Ms Kerr than this Court would ever be. It must be presumed that, on the central issue of the admissions made to Ms Kerr, the jury considered her to be credible and reliable.[21] Given that presumption, we see nothing in the record that would preclude the jury from accepting the evidence of the applicant’s admission of guilt to Ms Kerr.
[21]Pell v The Queen (2020) 268 CLR 123, 145 [39].
If we are wrong about this conclusion, that does not mean, of course, that this ground must succeed. If the jury accepted but one of Ms Cutmore’s or Mr Fisher’s accounts, then that would be sufficient to sustain the conviction. In the event we have concluded:
(a)that it was open to the jury to accept both the evidence of Ms Cutmore and Mr Fisher; and
(b)our independent evaluation of the evidence leads us to the same conclusion.[22]

Analysis of Ms Cutmore’s evidence

[22]M v The Queen (1994) 181 CLR 487, 492–3.

Ms Cutmore, we consider, to be the most reliable witness as to the events constituting the rape charge. She gave a detailed and consistent account of the rape including the retrieval of the imitation gun from the applicant’s bag, Mr Cox’s pants being pulled down, the penetration itself and the applicant’s accompanying words to Mr Cox, ‘You’re going to fuck us’.
Ms Cutmore was criticised by the applicant for, at times, providing an inconsistent and confusing chronology. She had suffered from intrusive dreams since the event —perhaps understandably — and was uncertain about who was in the room at various times; she readily accepted her uncertainty about these aspects and said that she was scared throughout the incident. Ms Cutmore was further criticised about her description of how Mr Cox’s broken arm was sustained, which it was contended was at odds with the pathologist’s evidence. It was further suggested to her that Ms Kerr prevailed upon her to concoct a story. Ms Cutmore firmly denied this.
We consider that the criticisms of Ms Cutmore’s evidence were entirely insufficient to compel a doubt about her evidence of the penetration. While her recollection of the sequence of events was compromised, the penetration she described was a single event unaffected by its place in the unfolding events. Either it happened or it did not, and as long as it happened while Mr Cox was still alive, it matters little when it happened. The unfolding chronology of events was far more relevant to the manslaughter charge where there were multiple episodes of violent brutality committed (apparently) by multiple assailants.
The broken arm criticism can be readily dismissed. Ms Cutmore described the applicant as taking hold of the deceased’s arm either side of the elbow and snapping his arm, causing a sound suggestive of a break or fracture. Dr Baber disagreed that this mechanism could have caused the fracture that she had observed, and said it was instead caused by blunt force trauma inflicted when the elbow was in a bent position. We agree with the respondent’s submissions on this. It would be open to the jury to conclude that Ms Cutmore was simply wrong about the mechanism she described. If this were the case, given the overall stressful circumstances of the evening, this would hardly be fatal to her credibility and reliability on the anal penetration itself. Alternatively, she may well have described accurately what she saw the applicant do, however be simply mistaken as to its consequence. Either way, we consider that her credibility survived these attacks without real damage, and it was well open to the jury to reach the same conclusion.

Analysis of Mr Fisher’s evidence

Mr Fisher’s evidence was also the subject of defence criticism. In his evidence in chief, whilst describing in vivid detail the brutal assault on Mr Cox, he provided some evidence subsequently used to advance the applicant’s self-defence argument to the manslaughter charge. There was no criticism from the defence about that aspect of his evidence. Later in his evidence in chief, he initially neglected to mention the applicant’s activities with the imitation firearm. He was reminded by the prosecution[23] that in his police statement made on 20 March 2020 (that is, a few days after the relevant events) he had described the applicant using the imitation firearm to penetrate Mr Cox’s anus. Mr Fisher then agreed he said that in his statement and confirmed what he had there described was the truth.
[23]During examination pursuant to s 38 of the Evidence Act 2008.
We observe that Mr Fisher’s account of the penetration was very similar to Ms Cutmore’s, and both described the:
(a)same victim;
(b)same attacker;
(c)applicant pulling down the victim’s pants; and
(d)insertion of the barrel of the gun into the deceased’s anus.
Mr Fisher was criticised by the defence for describing the imitation firearm as a .308 rifle, when in fact it was an imitation shotgun. When challenged about this in cross-examination, the witness stated that is what it looked like to him. Immediately thereafter, the witness was challenged about the penetration:
You never saw [the applicant] stick the gun in the [intruder]’s arse?---Yeah, I did.
The jury were entitled to accept this.
Mr Fisher was further challenged about his evidence:
Someone told you to say that [the applicant had] done that?---No, it happened twice. The first time I didn’t see it, the second time I did.
Given this answer, the defence proposed that the jury could not be satisfied that what Mr Fisher saw was the act of penetration the subject of charge 2, but instead was a subsequent penetration. Technically, this was a reasonable argument (albeit without much ‘jury appeal’) and it was competently placed before the jury for their consideration. It was a matter for the jury to assess whether the act observed by Mr Fisher, as described in his witness statement, corresponded with the first act of penetration identified by Ms Cutmore. The jury had the benefit of an anti-substitution direction given by the trial judge in his impeccable charge. The jury also had the benefit of seeing and hearing the evidence of both witnesses, and were assisted by the arguments of two highly competent counsel on this issue. In our view, given the similarity of the acts leading up to the penetrations and the penetrations themselves, it was open to the jury to conclude that that Ms Cutmore and Mr Fisher were referring to the same incident.

The jury

The jury were given unreliable witness directions in relation to each of Ms Kerr, Ms Cutmore and Mr Fisher. These directions were appropriate in the circumstances and no complaint is made by the applicant as to their substance. The jury were directed, in relation to each witness that his or her drug use and the fact that he or she may be criminally concerned in the offending conduct meant that the evidence they are considering may be unreliable. It does not follow that it was unreliable. What does follow is that the jury had the benefit of appropriate directions as to the dangers inherent in the evidence when evaluating that evidence. That evaluation was for the jury who, as we have said, had the large benefit of seeing and hearing all the evidence.

Conclusion

It was open to the jury to reach the following conclusions beyond reasonable doubt:
(a)an imitation shotgun was inserted into Mr Cox’s anus; and
(b)Mr Cox did not consent to this activity; and
(c)that penetration was carried out by the applicant; and
(d)the applicant did not have a reasonable (or any) belief in consent.

The jury could have reached that conclusion by accepting some or all of the relevant evidence given by Ms Kerr, Ms Cutmore and Mr Fisher. These accounts need not of course be considered in isolation from each other. Each derives support from each other and other evidence in the case, particularly the forensic evidence. It is sufficient that based on our independent examination of the evidence we are comfortably satisfied of the applicant’s guilt in using the imitation firearm to anally penetrate Mr Cox. It follows that it was open to the jury, on the whole of the evidence to be satisfied beyond reasonable doubt of the charge of rape.
The application for leave to appeal against conviction must be refused.
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[2025] VSCA 5

13 February 2025