Huy Vinh Quach v The Queen

[2011] VSCA 390

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0127

HUY VINH QUACH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, NEAVE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 September 2011
DATE OF JUDGMENT	29 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 390	1st Revision 20 July 2015 –Footers amended
JUDGMENT APPEALED FROM	DPP v Quach (Unreported, County Court of Victoria, Judge Sexton, 22 April 2010)

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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Police officer – Jury question as to whether applicant was prevented from calling character witnesses – Whether question revealed impermissible Jones v Dunkel reasoning – Whether jury should have been discharged – Whether judge’s direction adequate – Whether conviction unsafe and unsatisfactory – Crofts v The Queen (1996) 186 CLR 427, applied – Dyers v The Queen (2002) 210 CLR 285, Azzopardi v the Queen (2001) 205 CLR 50, discussed – Application for leave to appeal granted only on ground of adequacy of direction – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Tony Hargreaves & Partners
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

Introduction

1. The applicant, Mr Huy Vinh Quach, was convicted of one count of rape at trial.  He also pleaded guilty to a number of other charges.  The applicant was sentenced to a total effective sentence of eight years’ and three months’ imprisonment with a non-parole period of five years.

1. During its deliberations, the jury asked the learned trial judge whether there was anything preventing the applicant from leading evidence of good character.  The applicant’s counsel applied to have the jury discharged but the learned trial judge refused the application.  Instead, her Honour gave a direction to the jury.  The full text of the question and the direction is set out below.

1. The applicant now applies for leave to appeal against his conviction for rape on three grounds:

1.that the learned trial judge erred in refusing to discharge the jury;

2.that the direction given by the learned trial judge in response to the jury’s question was inadequate;  and

3.that the jury’s verdict is unsafe and unsatisfactory.

1. I have had the benefit of reading in draft form the reasons for judgment of Tate JA.  I agree with her Honour, for the reasons that she gives, that grounds 1 and 3 are not made out.  I would refuse leave to appeal on grounds 1 and 3.

1. But unlike Tate JA, for reasons that will follow, I consider that the applicant should succeed on ground 2.  Accordingly, I would grant leave to appeal on ground 2, allow the appeal, quash the conviction for rape and order a re-trial.

1. The applicant also applies for leave to appeal against his sentence in respect of the other counts to which he pleaded guilty.[1]  In his submissions, the applicant makes clear that the application for leave to appeal against sentence is conditional on the success of the conviction appeal and is not pursued in the event that the conviction appeal is unsuccessful.[2]

   [1]The counts are set out in the judgment of Tate JA.

   [2]Outline of Submissions on Behalf of the Applicant (6 December 2010), [41]–[44].

1. I agree with Tate JA, for the reasons that her Honour gives, that if this Court were to allow the conviction appeal, the applicant should be re-sentenced as Tate JA proposes.

The case against the applicant

1. The applicant was a police officer.  He had a casual sexual relationship with the complainant, LC.  The applicant and LC had consensual sex on at least one occasion before the night of the alleged rape.  The rape is said to have occurred in May 2004.  The applicant was sleeping over at LC’s place.  LC gave evidence that she awoke during the night to find the applicant anally penetrating her with his penis.  She told the applicant to stop but he continued.  Eventually, the applicant got off LC.  She immediately went to the bathroom to shower and when she returned the applicant was gone. 

1. In his record of interview, the applicant recalled the night in question and admitted staying at LC’s place on that night.  But he denied having anal sex with LC on that occasion or at all.  He claimed that LC may have made a false complaint to get back at him for not continuing the relationship.

The proceedings at trial

1. The trial commenced on 1 February 2010.  The jury was empanelled on 2 February 2010 and Crown and defence openings were heard on the following day.  The jury retired to consider its verdict shortly before lunch on 8 February 2010, the sixth day of the trial.

1. Later that day, at 4:15pm, the jury indicated to the learned trial judge that they had reached a ‘stalemate’:[3]

The jury believe that we will not be able to reach a conclusive verdict as we have reached a stalemate.  We have discussed the case at length and have come to the same result multiple times.  Many in the jury have also stated that their position will not change.  What happens in this outcome?

[3]Trial Transcript, 313.

1. The jury were then given a Black[4] direction and the trial was adjourned to the following morning.[5]

   [4](1993) 179 CLR 44.

   [5]Trial Transcript, 317–320.

1. On 9 February 2010 at 3:08pm the jury were given a majority verdict direction.[6] 

   [6]Trial Transcript, 324–327.

1. On 10 February 2010 at 12:00pm the jury asked three questions, including a question about the meaning of ‘reasonable doubt’ and a question whether there would be a re-trial if the jury were dismissed.[7]

   [7]Trial Transcript, 331.

1. The critical question was asked on 11 February 2010.  At about 12:00pm the jury asked whether the applicant could have led evidence of good character:[8]

We are aware that there is no onus on the accused to prove his innocence, but we would like to know whether he would have been prevented, for any reason, from having a character witness testify on his behalf?  For instance, Detective Acting Senior Sergeant Simpson or any other police officer.

[8]Trial Transcript, 344.

1. At the same time the jury also asked a second question about the meaning of ‘the jury’:[9]

Also, there is confusion as to Her Honour’s instructions yesterday, particularly in regard to your definition of ‘the jury’.  There’s now a perception that because there are individual members of the jury who have what they believe is a reasonable doubt, the jury as a collective then has a reasonable doubt and must find Huy Quach not guilty.

[9]Trial Transcript, 345.

1. The applicant’s counsel applied to have the jury discharged.  The learned trial judge refused the application.  Instead, her Honour directed the jury as follows:[10]

The first [question] was about whether there was anything preventing the accused from having a character witness testify on his behalf?  That is an irrelevant consideration for you.  You are well aware, as I said to you a number of times, the prosecution bears the onus of proving the case that it brings, and you have before you all of the evidence on which the prosecution seeks to rely in order to prove its case.  So you are to focus only on the evidence which the prosecution has brought before you to decide the case, to decide if the count has been prove [sic] beyond reasonable doubt.  You are not to speculate, that is, go beyond that evidence.

[10]Trial Transcript, 358–359.

1. The applicant’s trial counsel did not take exception to this direction.

1. The learned trial judge also answered the jury’s second question and arranged a viewing of the recording of LC’s evidence that the jury had requested.[11]

   [11]Trial Transcript, 359.

1. On Friday 12 February 2011 at 3:45pm the jury returned a unanimous verdict of guilty.

The direction given to the jury was unsatisfactory

1. The jury’s question makes it crystal clear the jury was proposing to embark on a Jones v Dunkel[12] inference on the basis of the failure of the applicant to lead evidence of good character.  The jury was proposing to reason that if the applicant was permitted to lead character evidence, his failure to call Detective Acting Senior Sergeant Simpson or other police officers suggests that their evidence would not have assisted him, ie he did not call them because he was not of good character. 

   [12](1959) 101 CLR 298.

1. There was no dispute that such reasoning would have been impermissible for the jury.[13]

   [13]See Dyers v The Queen (2002) 210 CLR 285, [5] (Gaudron and Hayne JJ), [52] (Kirby J), [121]–[124] (Callinan J) (‘Dyers’).

1. In this Court, the applicant submits that the learned trial judge should have given the jury a specific direction that expressly dispelled the Jones v Dunkel reasoning.  He submits that her Honour should have specifically directed the jury that they could not reason that because the applicant did not call character evidence, he was not a person of good character.  The applicant also submits that, by analogy with the directions suggested by the High Court in Azzopardi v The Queen[14] in relation to the accused’s failure to give evidence at his or her own trial, the learned trial judge should have directed the jury that the applicant’s failure to lead character evidence:

1.is not evidence against him;

2.does not constitute an admission;

3.may not be used to fill gaps in the prosecution evidence;  and

4.may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.

[14](2001) 205 CLR 50.

1. The Crown contends that the direction given by the learned trial judge was adequate.  First, the Crown submits that it would have been ‘dangerous’ for her Honour to give a specific direction telling the jury not to draw a Jones v Dunkel inference because it would alert the jury to the logic of such an inference.[15]  I reject that submission.  There are cases where it is counter-productive to give the jury a specific direction not to draw a particular inference because the direction would only draw the jury’s attention to that inference.[16]  But this is not such a case.  The jury’s question makes it abundantly clear that the jury was proposing to embark on a Jones v Dunkel inference.  There was no danger in alerting them to the possibility of such an inference — they were already fully aware of it.

   [15]Respondent’s Outline of Argument on Conviction (31 August 2011), [8].

   [16]Cf Crofts v The Queen (1996) 186 CLR 427, 339–341 (Toohey, Gaudron, Gummow and Kirby JJ).

1. Secondly, the Crown points out, citing the decision of this Court in R v Halliday,[17] that ‘[o]ur system of justice assumes ... that juries obey instructions given to them by trial judges’.[18]  The Crown submits that the jury’s question demonstrates that:[19]

1.rather than acting on their own initiative, the jury sought assistance of the trial judge in relation to a matter they thought might be relevant;

2.the very act of doing so indicates a recognition of the judge as the source of law and guidance in the trial;

3.the question itself indicates an open mind as to the guilt or innocence of the accused.

[17](2009) 23 VR 419.

[18]Ibid [81]. See also Gilbert v The Queen (2000) 201 CLR 414, [13] (Gleeson CJ and Gummow J), [31]–[32] (McHugh J, dissenting), [51] (Hayne J, dissenting).

[19]Ibid [5].

1. I accept this submission.  It should be generally assumed that juries properly discharge their duty by following the directions of the trial judge.[20]  And in this case, the jury’s questions provide an additional indication that the jury was attempting to follow the directions of the learned trial judge, insofar as they understood them.  This constitutes a significant reason for rejecting the applicant’s submission that the learned trial judge should have discharged the jury.  But the acceptance of the Crown’s submission that the jury was dutifully attempting to follow the directions of the trial judge does not answer the applicant’s contention that the directions given in response to the character evidence question were inadequate.

   [20]The assumption is, of course, not absolute.  Hence, some circumstances call for a jury to be discharged because it is considered that the prejudice to the accused cannot be cured by a direction:  see, eg, Crofts v The Queen (1996) 186 CLR 427.

1. Thirdly, the Crown points out that her Honour’s direction:[21]

1.explained that the jury’s question was irrelevant;

2.reiterated that the prosecution bears the onus of proof;

3.directed the jury to focus only on the evidence led by the prosecution;

4.directed the jury not to ‘speculate, that is, go beyond the evidence’.

[21]Respondent’s Outline of Argument on Conviction (31 August 2011), [7], [17].

1. These four matters, the Crown submits, were sufficient to ensure that the jury did not embark on an impermissible path of reasoning.

1. I reject that submission.  There may be cases where a direction like the one given by her Honour would be sufficient.  But, for reasons that will follow, in the circumstances of this case, the direction was inadequate.

1. First, it is important to bear in mind the context in which the jury asked its question.  By the time it asked the question about character evidence, the jury had been deliberating for about 16 hours in a case where there were only two days of evidence.  The jury had told the trial judge early on that it had reached a ‘stalemate’ and that some members of the jury had reached concluded views.  That stalemate was evidently not resolved by the time the jury had asked its character evidence question.  Importantly, the entire case essentially turned on credibility.  It was the applicant’s word against LC’s.  The applicant was a police officer, a person one would normally expect to be an upstanding citizen.  In that context, the jury may well have considered its assessment of the applicant’s character to be of critical significance in breaking the stalemate.  

1. These circumstances point to a situation that is ripe for Jones v Dunkel reasoning on the basis of the absence of good character evidence.  Like a match lit on a very hot and dry day, the jury’s question about Jones v Dunkel reasoning raised in these circumstances represented a very grave danger.  The question required a very stern direction that would made it absolutely crystal clear that the jury could not draw a Jones v Dunkel inference.

1. Secondly, it is significant that the jury’s question did not ask whether the jury could draw Jones v Dunkel inference.  Rather, the question asked if there was anything preventing the applicant from leading evidence of good character.  Presumably, the jury had asked that question because they reasoned that they could not draw an adverse inference from the absence of good character evidence if there was some legal impediment preventing the applicant from leading such evidence.  The question assumed that in the absence of such an impediment the jury would be entitled to draw a Jones v Dunkel inference.

1. Thirdly, the jury prefaced its question by stating that they ‘are aware that there is no onus on the accused to prove his innocence’.  Clearly, the jury must have thought that the drawing of  a Jones v Dunkel inference was not inconsistent with the proposition that the Crown bears the onus of proving the applicant’s guilt.  It is entirely understandable that the jury might think that there is no inconsistency between the two propositions — that was the view of McHugh J in Dyers.[22]  His Honour’s dissent in that case shows that the inconsistency between the two propositions is not necessarily clear even to a Justice of the High Court. 

   [22]Dyers (2002) 210 CLR 285, [36]–[38].

1. Because the jury did not see any inconsistency between the Crown bearing the onus of proof and the drawing of a Jones v Dunkel inference, the fact that the learned trial judge re-iterated the former did little or nothing to ensure that the jury did not embark on the latter.

1. Fourthly, it is far from certain that the jury would have understood her Honour’s direction that they must not ‘speculate’ as prohibiting them from drawing a Jones v Dunkel inference from the absence of good character evidence.  Dyers provides a clear illustration of this point.  In Dyers, the trial judge directed the jury that they must not speculate as to what a witness who was not called might have said if that witness had been called.  Immediately afterwards, the trial judge told the jury that they may draw Jones v Dunkel inferences from a failure by a party to call a witness.[23]  Ultimately, the two directions were held to be inconsistent.[24]  But the trial judge in Dyers obviously did not see any inconsistency.  If the inconsistency was not obvious to a District Court judge, it might not have been obvious to the jury in this case.

   [23]Ibid [2]–[3] (Gaudron and Hayne JJ).

   [24]Ibid [14] (Gaudron and Hayne JJ).

1. Fifthly, the learned trial judge’s answer that the jury’s question was an ‘irrelevant consideration’ is not sufficient.  I accept that on careful analysis, this answer would suggest to the jury that they could not draw a Jones v Dunkel inference.  This is because if the jury could draw such an inference, the question whether there was anything preventing the applicant from leading character evidence would have been highly relevant.  But the direction simply does not make it sufficiently clear, in terms that one could be confident that all jurors understood, that the jury must not draw an adverse inference from the applicant’s failure to lead evidence of good character.

1. As I have explained, in the circumstances of this trial, the learned trial judge needed to direct the jury in stern and clear terms that they must not draw the Jones v Dunkel inference that they were clearly proposing to draw.  Her Honour’s directions, individually or in combination, failed to do so in a sufficiently clear and unambiguous manner.  Her Honour should have specifically and expressly directed the jury that they must not reason that the absence of good character evidence led on behalf of the applicant suggests that he is not of good character.

1. For these reasons, I conclude that her Honour’s direction was inadequate.

The inadequacy of the direction led to a substantial miscarriage of justice

1. Under s 276(1)(b) of the Criminal Procedure Act 2009, the applicant bears the onus of establishing that the inadequacy of the direction occasioned a ‘substantial miscarriage of justice’.[25] 

   [25]Sibanda v The Queen [2011] VSCA 285, [65] (Sifris AJA, Nettle and Neave JJA agreeing) (‘Sibanda’);

1. Seemingly divergent views have been expressed by this Court as to whether the ‘substantial miscarriage of justice’ test under s 267(1)(b) of the Criminal Procedure Act differs from the ‘proviso’ that existed under s 569(1) of the Crimes Act 1958. 

1. The operation of the proviso was examined by the High Court in Weiss v The Queen.[26]  The Court held that the proviso does not require the appellate court to attempt ‘to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a “substantial miscarriage of justice has actually occurred”’.[27]  That task requires the appellate court to:[28]

make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial.

[26]Weiss v The Queen (2005) 224 CLR 300 (‘Weiss’).

[27]Ibid, [35] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

[28]Ibid, [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) (footnotes omitted).

1. In Sibanda, this Court held that, save for reversing the onus, the Criminal Procedure Act did not affect the Weiss test.[29]  But in Finn v The Queen,[30] the Court seems to have accepted that a substantial miscarriage of justice will arise if a ‘failure to give the required direction … may have affected the outcome of the trial’.[31] 

   [29]Sibanda v The Queen [2011] VSCA 285, [5] (Nettle JA), [65] (Sifris AJA, Nettle and Neave JJA agreeing).

   [30][2011] VSCA 273.

   [31]Ibid, [98] (Almond AJA, Buchanan JA and Coghlan AJA agreeing).

1. It is unnecessary for the purposes of this appeal to decide which test is to be preferred.  For the reasons that follow, I am satisfied that on either test the inadequacy of the direction in this case has resulted in a substantial miscarriage of justice. 

1. First, the inadequacy of the direction deprived the applicant of a real chance of acquittal.  I accept that a number of factors may suggest that the inadequacy of the direction did not affect the outcome.  I note that, in addition to asking about character evidence, the jury also requested to view a recording of the complainant’s evidence.  This suggests that the issue of the applicant’s character was not the only matter occupying the jury’s mind at the time they asked the question.  Further, the jury deliberated for about a day after the direction was given.  This suggests that if some members of the jury did draw a Jones v Dunkel inference despite the direction, the inference was not of itself sufficient to immediately dispel the doubts they held about the applicant’s guilt. 

1. But, as I have explained, the circumstances of the trial were ripe for a Jones v Dunkel inference.  The jury was deadlocked.  The jury’s question indicated that they were proposing to draw a Jones v Dunkel inference.  The direction given by the learned trial judge did not make it sufficiently clear that they must not do so.  In these circumstances, there is a real chance that what led the doubters on the jury to ultimately change their mind was an impermissible Jones v Dunkel inference. 

1. Secondly, this is a case where the “natural limitations” of being confined to the written record mean that an appellate court cannot be satisfied of the applicant’s guilt beyond reasonable doubt.  The case essentially turns on credibility.  It is the complainant’s word against the applicant.  The applicant’s version of events is entirely plausible.  Any finding of guilt could only be made through a careful assessment of the credibility of the complaint’s viva voce evidence.

1. Finally, the fact that the applicant’s trial counsel did not take issue with the direction is not determinative.[32]

   [32]R v Shiers (2003) 7 VR 174, [77] (Eames JA), [82] (Ashley AJA).

1. It follows that on either test the applicant has established a substantial miscarriage of justice.

Disposition of the appeal

1. I would grant leave to appeal on ground 2, allow the appeal, quash the conviction for rape, and order a re-trial.

1. I would re-sentence the applicant as proposed by Tate JA.

NEAVE JA:

1. I have had the advantage of reading Tate JA’s reasons and agree with her Honour, for the reasons she gives, that the appeal should be dismissed.  I wish only to add the following comments in relation to ground 2.

1. Counsel for the applicant submitted that in responding to the jury’s question, the learned trial judge should have given a direction modelled on the warning which the majority of the High Court held in Azzopardi v The Queen[33] ‘would almost always be desirable for a trial judge to give’ where an accused does not give evidence.[34] 

   [33](2001) 205 CLR 50.

   [34]Ibid 70 (Gaudron, Gummow, Kirby and Hayne JJ).

1. Like Tate JA, I would reject this submission.  The precise content of the warning considered desirable in Azzopardi should not be extrapolated to the situation where an accused person fails to call evidence of good character.  There would be obvious dangers for the accused if a trial judge were required to tell the jury that the failure to call character witnesses is not evidence against the accused and does not constitute an admission that such evidence would not be available to them. 

1. Although the jury did not specifically ask whether they could take account of the accused man’s failure to call good character evidence, this was implicit in their question.  The terms of the question showed that the jury clearly understood that the onus of proof lay on the prosecution.  That understanding was reinforced by her Honour’s direction that they could rely only on the evidence before them and that

they should not speculate, ‘that is go beyond the evidence’.  Any doubt which the jury may have had about whether, despite the onus of proof, the failure to call character evidence could be taken into account, must have been resolved by the trial judge’s answer.  The direction not to speculate on evidence which might have been given by witnesses if they had been called by the accused was consistent with the direction said to be appropriate in the joint judgment of Gaudron and Hayne JJ in Dyers v The Queen.[35]  Along similar lines, Callinan J said that: [36]

In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called.  At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called. 

[35](2002) 210 CLR 285, 291.

[36]Ibid 328.

1. In this case, it was necessary for her Honour to address the issue because of the question asked by the jury, but in answering the jury question, she had to be careful that she did not prejudice the accused by emphasising the fact that he had not called other police members as character witnesses.  Her Honour gave the jury clear guidance, including telling them that they ‘could focus only on the evidence which the prosecution had called’, that it was an irrelevant consideration whether the accused was prevented from having a character witness and that they were not to speculate ― that is to go beyond the evidence. 

1. It would have taken remarkable sophistication for the jury to reason, as McHugh J did in his dissenting judgment in Dyers,[37] that although the onus of proof lay on the prosecution and they could only take account of the evidence called by the prosecution, this did not prevent them from making inferences from the defence failure to lead evidence of good character. 

   [37]Ibid 301-2.

1. The jury had previously sought the guidance of the trial judge on other matters.  If they had any doubts about what her Honour meant by the instruction not to speculate and to rely only on the evidence before them, it was open to them to

seek further clarification.  They did not do so.  Further, the judge, imbued with the atmosphere of the trial, was in a better position than this Court, to determine whether the jury was left in any doubt as to its duty. 

TATE JA:

1. The applicant, Mr Huy Vinh Quach, was found guilty by a jury of one count of rape by anal intercourse.[38]  The rape occurred within the context of a casual sexual relationship between the applicant, who was a police officer, and the complainant.  The applicant and the complainant had met some time before at a nightclub called the Q Bar;  subsequently, they had gone out to dinner, seen a movie together and on at least one occasion before the night of the rape, had consensual sex.  On one night, during May 2004, the applicant picked the complainant up late at night from her work and they went back to her place to sleep.  She gave evidence at the trial that during the night she was awoken from her sleep to find that the applicant was anally penetrating her with his penis.  She had not consented to anal sex.  She told the applicant to stop and that he was hurting her.  The applicant did not stop and said nothing to her.  She began to cry.  She could not move. As soon as the applicant rolled off her, she ran to the bathroom and showered.  When she returned to the bedroom, the applicant had gone.  The applicant denied that anal sex occurred.

   [38]This was the only count contained in Presentment X00067702.1. 

1. The applicant was sentenced to seven years and six months’ imprisonment for the rape.  At the same time, he was sentenced in respect of five counts of possession of a drug of dependence (four of which related to cocaine and the fifth, MDMA (ecstasy)) and one count of misconduct in public office, to all of which he pleaded guilty.[39]  His sentence was as follows:

[39]These six counts were contained in Presentment X00067702.4.

Count on Presentment X00067702.1	Offence	Verdict	Sentence	Cumulation
1.	Rape (Crimes Act 1958, s 38(1))	Guilty	Seven years, six months’ imprisonment	Base
Count on Presentment X00067702.4	Offence	Plea	Sentence	Cumulation
1.	Possession of a drug of dependence (cocaine) (Drugs, Poisons and Controlled Substances Act 1991, s 73(1)(b))	Guilty	Three months’ imprisonment	One month
2.	Possession of a drug of dependence (cocaine)	Guilty	Three months’ imprisonment	One month
3.	Possession of a drug of dependence (cocaine)	Guilty	Four months’ imprisonment	One month
4.	Possession of a drug of dependence (cocaine)	Guilty	Four months’ imprisonment	One month
5.	Possession of a drug of dependence (MDMA)	Guilty	Three months’ imprisonment	One month
6.	Misconduct in Public Office (Crimes Act, s 320)	Guilty	18 months’ imprisonment	Four months
Total Effective Sentence:		Eight years’ and three months’ imprisonment
Non-Parole Period:		Five years
Pre-sentence Detention Declared:		79 days

1. The applicant later pleaded guilty to an additional count of misconduct in public office, for which he received a sentence of 18 months’ imprisonment, 14 months of which were directed to be served concurrently with the sentence for the rape and the six other counts.  The revised total effective sentence was eight years and seven months’ imprisonment with a revised minimum non-parole period of five years and two months.   

1. The applicant now applies for leave to appeal against his conviction for rape.  If this Court is minded to grant leave and to allow the appeal, either ordering a retrial or entering an acquittal on the count of rape, the applicant also seeks leave to appeal against his sentence with respect to the five counts of possession and the first count of misconduct in pubic office. 

The jury’s character evidence question

1. Two of the grounds of appeal relied upon by the applicant turned upon a question asked by the jury and the trial judge’s response to it.  After about 16 hours of deliberation, the jury asked the following question, ‘the character evidence question’:

We are aware that there is no onus on the accused to prove his innocence, but we would like to know whether he would have been prevented, for any reason, from having a character witness testify on his behalf?  For instance, Detective Acting Senior Sergeant Simpson or any other police officer.

1. Detective Acting Senior Sergeant Simpson had been present when the applicant had been interviewed by the police.  This was apparent from the record of interview which was exhibited at the trial.  The record of interview also showed that Detective Acting Senior Sergeant Simpson had worked professionally with the applicant, on an occasional basis, and that the applicant had not objected to his presence during the interview, as a corroborator of Detective Acting Sergeant Fooks who was the principal interviewer.  

1. To the jury, the trial judge responded by saying that the question:

was about whether there was anything preventing the accused from having a character witness testify on his behalf?  That is an irrelevant consideration for you.  You are well aware, as I said to you a number of times, the prosecution bears the onus of proving the case that it brings, and you have before you all of the evidence on which the prosecution seeks to rely in order to prove its case.  So you are to focus only on the evidence which the prosecution has brought before you to decide the case, to decide if the count has been proved beyond reasonable doubt.  You are not to speculate, that is, go beyond that evidence.

1. The judge’s response was preceded by her Honour’s refusal to discharge the jury following an application by defence counsel that she do so.  No question had been asked about the fact that the applicant himself did not give evidence.  Defence counsel said he was concerned that they were asking about other potential witnesses. He said:

Your Honour, I’m extremely troubled by that … question.  Nothing has been mentioned about character evidence.  Your Honour didn’t request that I announce the course the defence would take before the jury.  They’ve said nothing about, made no enquiry about Mr Quach’s not giving evidence.  That question concerns me in that they are raising something that has not been raised at any stage in this trial by anyone.  They’ve been told nothing about it.  It’s a troubling question because it relates to people, as I say, that have not been mentioned, rather than the accused man himself.  Had it been about the accused man one might have understood it, and it may be that it’s not even that uncommon an occurrence. 

1. He continued by expressing his concern that the jury might have previously seen news bulletins about the applicant’s arrest or have gone home and discussed the fact that they were on a jury in relation to the trial of a Vietnamese police officer charged with rape: 

It smacks of, with respect, if this person was a person of previous good character, why is it that we’re not hearing about it?  Are we not hearing about it because he is not a person of previous good character or there are some allegations … against him. … It would be my submission that they should now be discharged without verdict.

1. Her Honour asked what defence counsel would say about her giving the ‘standard’ direction:

You say that giving them the standard direction that it is irrelevant, they are to decide the case on the evidence that they have and not to speculate beyond that, that that would not be sufficient?

1. Defence counsel said that such a direction would not be sufficient as he was concerned the jury appeared to be embarking upon a form of impermissible reasoning:

It is now going into an area that ought not be the subject of their deliberations, and the fact that it is, is such a concern to me that it is incurable by way of direction because your Honour won’t be appeasing or satiating the enquiry or the impermissible suspicion that seems to be manifest in the question.

1. The prosecutor opposed the discharge of the jury, arguing that the circumstances did not meet the test that the discretion to discharge should only be exercised when there is a ‘high degree of need’, or ‘necessity’, for discharge, the test identified by the High Court in Crofts v The Queen.[40]  He submitted that it was not unusual for an inquiry to be made ‘as to whether somebody could give evidence or why hasn’t somebody been called, a particular witness who may have been in the periphery of things happening but not seen’ and the character evidence question could be answered by a simple direction that the jury ought not to speculate.  Her Honour agreed.

   [40](1996) 186 CLR 427.

1. Her Honour gave a ruling, in the absence of the jury, supporting her decision to refuse the application for discharge, while acknowledging all of the grounds on which defence counsel had relied.  She considered that a suitable direction could be given by analogy with the direction to be given if a jury asks why an accused has not given evidence.  She said:

[I]n short form [the jury] wants to know whether there was anything preventing the accused from having a character witness testify on his behalf. The prosecution have said that this should be dealt with by direction.  The standard form that would be given to them if they had asked about the accused giving evidence; that is, that it is irrelevant, that they are not to speculate and that they are to focus on the evidence they do have on which the prosecution seeks to prove its case. … I accept that the jury is proceeding through its process appropriately and in accordance with my directions and that this question about the calling of character evidence, whilst a little unusual and not focussing on the accused’s ability to give evidence, is nevertheless to be characterised in the same way and can be dealt with by way of a simple but pointed direction and therefore there is no need to discharge them on that point.  And I so rule.

1. The jury was recalled and the judge responded to the character evidence question with the answer extracted above.[41]  No exception was taken by counsel to the answer given.

   [41]See [64] above.

1. The application for leave to appeal against conviction was based upon three grounds, Ground 2 being relied upon as an alternative to Ground 1:

Ground 1:     The learned trial judge erred in the exercise of her discretion in refusing to discharge the jury without verdict consequent upon the application made by defence counsel to discharge the jury without verdict consequent upon the question asked by the jury and, as a consequence, there has been a substantial miscarriage of justice.

Ground 2:     The learned trial judge erred in her directions to the jury in her response to the question asked by the jury in that the directions were not sufficient to cure or eliminate the risk that the jury, or one or more members of the jury, would or might take into account in their deliberations a matter which was irrelevant to their deliberations and, as a consequence, there has been a substantial miscarriage of justice.

Ground 3:     The verdict of the jury of guilty of the offence of rape is unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice.

1. I will consider each ground in turn. 

Ground 1 - Should the trial judge have discharged the jury?

1. By the time the jury asked the character evidence question, it had been deliberating for a period of time longer than that occupied by the giving of evidence. The applicant was arraigned and the jury was empanelled on the afternoon of Tuesday 2 February 2010.  The first witness was the complainant who gave evidence on Wednesday 3 February, followed on the Thursday afternoon by three witnesses, a neighbour of the complainant, a woman with whom the complainant shared an apartment, and the police officer who was the principal interviewer of the applicant.   

1. The jury began deliberating on the afternoon of Monday 8 February 2010. After the first few hours of deliberating the jury indicated that it had reached a ‘stalemate’ and the judge gave a direction in accordance with Black v The Queen[42] encouraging the jury to persevere with the process.  The next day the judge directed the jury that it was allowed to return a majority verdict (agreed by 11 of them) if it was unable to reach a unanimous verdict, but that it remained preferable for it to reach a unanimous verdict if it could.  On the Wednesday the jury asked the judge three questions:  (1) the meaning of ‘reasonable doubt’;  (2) the meaning of ‘in the way alleged’ by reference to which the rape was alleged to have taken place;  and (3) would there be a re-trial if the jury was dismissed.  The judge answered all three questions.

   [42](1993) 179 CLR 44.

1. On Thursday 11 February, the jury asked the character evidence question as well as a question about the definition of ‘the jury’, namely, whether because there were individual members of the jury who had what they believed was a reasonable doubt this meant that the jury as a collective must have a reasonable doubt.  The judge sought to answer both questions.  The jury then asked whether a recording of the complainant’s evidence could be made available to it.  The judge made the recording available.

1. On Friday 12 February, the jury returned a unanimous verdict of guilty.[43]

   [43]The applicant argued that this indicated, in light of the earlier question about the definition of the jury and members who had a reasonable doubt, that at least one member of the jury had changed his or her mind.

1. On the hearing of the application for leave to appeal, the Crown submitted that the character evidence question showed that:

(1)        the jury had turned to the trial judge for assistance about something that had occurred to them might be relevant, rather than acting on their own initiative;

(2)        the very act of doing so was indicative of an approach involving recognition of the judge as the source of the law and guidance in the trial;  and

(3)        the question itself indicated an open mind as to the guilt or innocence of the accused.

1. Reflecting the submissions made at trial, the Crown submitted that the circumstance created by the asking of the character evidence question did not meet the strictures of the threshold test for the discharge of the jury.  The mere asking of a question by the jury could not normally be a sufficient basis for the judge to take the view that her discretion to discharge the jury should be exercised.  To accept that the asking of the character evidence question would justify discharge would be tantamount, it was submitted, to treating discharge as a matter within the control of the jury rather than a matter requiring the exercise of judicial discretion, which it has long been recognised as involving.

1. In Crofts v The Queen[44] the trial judge refused to discharge the jury in the face of inadmissible and prejudicial evidence given by the complainant of other sexual offences committed by the accused upon her over a considerable period of time beyond the acts for which he had been charged.  Dawson J said:[45]

Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge’s discretion.  But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice.  It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such discharge’ must appear before a charge will be ordered.  When a trial judge’s refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury. 

[44](1996) 186 CLR 427.

[45]Ibid 432 (Dawson J was in dissent in finding that it was not necessary to discharge the jury because the warning was adequate in directing the jury not to rely on the evidence of uncharged acts). See also Winsor v The Queen (1866) LR 1 QB 390, 394.

1. The same standard of a ‘high degree of need’ or of ‘necessity’ was affirmed by other members of the High Court as the test governing whether a jury should be discharged.  It was held that in the circumstances of the case the jury should have been discharged because it could not be said, with assurance, that but for the admission of the inadmissible evidence, the conviction was inevitable:[46]

The Court of Criminal Appeal … acknowledged that the trial judge had a discretion; that the criterion for its exercise was the maintenance of the fairness of the trial;  and that the test for discharge of the jury was one of necessity. …

It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind.  No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial.  The possibilities of slips occurring are inescapable.  Much depends upon the seriousness of the occurrence in the context of the contested issues;  the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. 

[46]Ibid 440 (Toohey, Gaudron, Gummow and Kirby JJ). See also R v Boland [1974] VR 849, 866.

1. The necessity for the discharge of the jury was demonstrated, for example, when the jury in a murder trial was inadvertently made aware of significant and highly prejudicial prior convictions of the accused because the presentment containing the record of prior convictions was handed to the jury during the prosecutor’s address, as in R v Halliday.[47]  So too the standard was met in Maric v The Queen[48] when inadmissible hearsay evidence that the accused had acquiesced when a statement was made in his company that he was good at making bombs was wrongly placed before the jury when the accused was on trial for maliciously causing grievous bodily harm by the use of explosives.  As Gibbs J said,[49] ‘[t]he evidence brought out by the questions put by the learned trial judge was of the most damaging character’.

   [47](2009) 23 VR 419.

   [48](1978) 20 ALR 513.

   [49]Ibid 518.

1. Here, the applicant argued that the character evidence question revealed that the jury, or one or more members of the jury, had adopted, or were proposing to adopt, an impermissible line of reasoning;  namely, as the applicant submitted, if the applicant was a person of previous good character, then why had the jury not heard evidence to that effect, and, in the absence of a reason for not having heard evidence to that effect, then it could be inferred that the applicant was not a person of good character.  In substance, it was argued, the jury was signalling that it was engaging, or proposing to engage, in the form of reasoning associated with Jones v Dunkel.[50]  That form of reasoning, applicable in civil trials, permits an inference to be drawn from the failure of a party to call a relevant witness;  namely, that any evidence he or she could give would not have assisted that party’s case.  In the ordinary case, the rule in Jones v Dunkel is inapplicable to criminal prosecutions.  This was confirmed by Gaudron and Hayne JJ in Dyers v The Queen:[51]

[I]t will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence.  Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt.  The mode of reasoning which is spoken of in R v Burdett and Jones v Dunkel ordinarily, therefore, cannot be applied to a defendant in a criminal trial.  That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so.  The conclusion that an accused could shed light on the subject matter of the charge is a conclusion that would ordinarily be reached very easily.  But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence.  So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt.  That is why the majority of the Court concluded, in RPS and Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. …

The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally.  It applies with equal force to the accused calling other persons to give evidence.  It cannot be said that it would be expected that the accused would call others to give evidence.  To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.

[50](1959) 101 CLR 298.

[51](2002) 210 CLR 285, 292 [9]-[10] (original emphasis; citations omitted; Kirby J (305 [52]) and Callinan J (328 [123]) taking a similar view) (original emphasis). In Dyers the accused was charged with indecently assaulting a thirteen year-old girl.  The trial judge gave a direction that if the jury concluded that any of the persons mentioned in the appellant’s appointment diary were persons whom the jury would expect a party to have called to support what that party asserted, and there was no satisfactory explanation of the failure to call the person, they were entitled to infer that the evidence of that person would not have assisted that party.  The Court held that this was a misdirection and allowed the appeal. McHugh J was in dissent.  

1. Indeed, their Honours contemplated that there may be circumstances where a direction is required to ensure the jury does not engage in Jones v Dunkel reasoning:[52]

As a general rule … a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.  

[52]Ibid 291 [5] (emphasis added).

1. In my opinion, the circumstances of this case did not demonstrate that it was necessary for the jury to be discharged.  Importantly, this was not a case of the irregular disclosure of evidence of an accused’s bad character.  Furthermore, there was no evidence disclosed in relation to the other counts that were pending, including the offences of possessing a drug of dependence and misconduct in public office, or of any uncharged acts.  The trial judge was thus not required to determine whether the extent of prejudice to the accused caused by the disclosure of bad character evidence was such that it was necessary to discharge the jury to prevent a substantial miscarriage of justice.  Rather, the trial judge was alerted by the character evidence question to the possibility that the jury may have been about to embark, or had embarked, on a form of reasoning generally impermissible in a criminal trial, that associated with Jones v Dunkel, and the drawing of an inference that the applicant was of bad character given the absence of any character evidence called on his behalf.  The character evidence question was open-ended; in itself it was not prejudicial to the applicant.  What would have been prejudicial to the applicant was for the jury to engage in the impermissible reasoning which it had signalled it may have been about to embark upon, or had begun to do so.  In those circumstances, it was critical, as the trial judge well understood, to ensure that the jury did not engage in impermissible reasoning.  If that form of reasoning could be prohibited by a suitable direction, there was no high degree of need established to justify the discharge of the jury, especially at such a late stage of the trial.

1. In my opinion, it was open to the trial judge to conclude that a judicial direction or warning would be sufficient to overcome the potential prejudice exposed by the character evidence question.  

1. As this Court made clear in Halliday:[53]

Our system of justice assumes, as it must, that juries obey instructions given to them by trial judges.

[53](2009) 23 VR 419, 439 [81], relying on Gilbert v The Queen (2001) 201 CLR 414, 425.

1. It follows that Ground 1 should be rejected.

Ground 2 - Was the judge’s answer adequate?

1. It was essential in the circumstances of the case that the direction given made it plain that the jury was not to engage in the particular form of impermissible reasoning which the character evidence question exposed.  Ground 2 raises the question whether the response made by the judge was sufficient to ensure the jury understood that they were to avoid drawing adverse inferences from the absence of witnesses who could potentially have given evidence of the applicant’s good character.

1. The Crown submitted that the asking of the character evidence question was no different to the circumstances, which occur time and time again, where the jury asks the question:  ‘Can the accused give evidence?’.  It was argued that the trial judge adequately dealt with the question by making three important points:

(1)        the prosecution bears the onus of proof;

(2)        the jury is to focus only on the evidence which the prosecution seeks to rely upon to prove its case;

(3)        the jury was told clearly not to speculate, not to go beyond the evidence. 

1. For the trial judge to go further in her response by identifying precisely what inferences were not to be drawn by the jury might have carried a risk, it was submitted, of entering upon dangerous territory, a legal ‘quicksand’, that may well have been counter-productive.  It is well recognised that specific directions may exacerbate the prejudicial effect of an irrelevant consideration.[54]  In order to ensure a fair trial, the answer given by the trial judge had to direct the jury not to speculate and to decide the case on the evidence before it, and, it was submitted, the trial judge’s direction achieved this. 

   [54]Crofts v The Queen (1996) 186 CLR 427, 440 and 441.

1. To this the applicant complained that the trial judge’s answer did not:

(1)        eliminate the risk that the jury, or one or more members of the jury, might engage in an impermissible line of reasoning towards guilt;

(2)        eliminate the risk that the jury, or one of more members of the jury, might take into account an irrelevant matter, namely, the fact that the applicant was not a person of previous good character or, in the alternative, the fact that there had been a failure by the defence to call evidence of the applicant’s good character;

(3)        negate the suspicion that the applicant was not a person of previous good character;  and

(4)        did not in fact answer the carefully formulated question of the jury because the jury was not given a reason as to ‘whether [the applicant] would have been prevented … from having a character witness testify on his behalf’.

1. At the hearing of the application for leave to appeal the applicant emphasised that the question extended to an inquiry about Detective Acting Senior Sergeant Simpson and thus the importance impliedly placed by the jury upon the applicant’s status as a police officer.  It was submitted that, in context, the character evidence question went beyond a general inquiry about the reason for the absence of character witnesses to a specific inquiry, albeit implied, that as the applicant held a position of public trust why had there been no evidence of his good character from those, like Detective Acting Senior Sergeant Simpson, who associated with him professionally and saw him discharge the functions of his office.  The context of the character evidence question, and the status of the applicant as a public official, required that the trial judge give a ‘specific and particular warning’[55] because that was ‘necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case’.[56]  In other words, there was a need drawn from the circumstances of the case for a direction to be given which grappled with the impermissible Jones v Dunkel reasoning, and did so in a specific way.

   [55]Ibid 446.

   [56]Ibid.

1. The applicant argued that, far from grasping the nature and context of the character evidence question, the trial judge mistakenly proceeded as though she had been asked the more familiar question: ‘Could the accused have given evidence?’. Furthermore, it was said, she acted as though she was still subject to s 399(3) of the Crimes Act 1958 (now repealed) that prohibited judges from commenting on the failure of an accused to give evidence. Section 399(3) provided:

The failure of any person charged with an offence to give sworn evidence shall not be made the subject of comment to the jury by either the prosecution, or by the presiding judge.

1. The restrictions on judges flowing from s 399(3) of the Crimes Act and comparable legislation in other Australian jurisdictions were strict.  In Azzopardi v The Queen, Gaudron, Gummow, Kirby and Hayne JJ said:[57]

By the Accused Persons’ Evidence Act 1898 (NSW) it was provided that ‘[i]t shall not be lawful to comment at the trial of any person upon the fact that he has refrained from giving evidence on oath on his own behalf’.  Thereafter, in some other Australian jurisdictions, legislation was passed forbidding the judge or the prosecutor, and in some cases both, from commenting on the absence of sworn evidence from the accused.  These statutory prohibitions were seen as necessary to ensure that an accused’s choice about whether to give sworn evidence was a real choice and not a disguised obligation to give evidence.  Provisions of this kind fell for consideration in several decisions of this Court.  The provisions were construed broadly.  In Bataillard v The King … Isaacs J said that there would be a contravention of the prohibition against comment by any ‘reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up … to the fact that the prisoner had the power or right to give evidence on oath, and yet failed’ to do so.[58]

[57](2001) 205 CLR 50, 67 [43] (footnotes and citations omitted).

[58]See now s 20(2) of the Evidence Act 2008 that provides: ‘The judge or any party (other than the prosecutor) may comment on a failure of the accused to give evidence. However, unless the comment is made by another accused in the proceeding, the comment must not suggest that the accused failed to give evidence because the accused was, or believed that he or she was, guilty of the offence concerned.’ The prohibition in the second sentence of s 20(2) has been construed strictly: see RPS v The Queen (2000) 199 CLR 620, 629-30 [20] where Gaudron ACJ, Gummow, Kirby and Hayne JJ said: ‘the prohibition contained in the second sentence … must be given full operation. In that respect this prohibition should not be treated differently from the prohibition (still operative in some Australian jurisdictions) against a judge making any comment on the failure of the accused to give evidence.  To adopt and adapt what was said by Isaacs J in Bataillard v The King, if comment is made about the accused not having given evidence it must not make any ‘reference, direct or indirect, and either by express words or the most subtle allusion’ suggesting that the accused did not give evidence because he or she was, or believed that he or she was, guilty.  It has been said that the line between what is permissible and what is not, under provisions which prohibit any comment on a failure to give evidence, may be a fine one. Whether or not that is so, s 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation.’ (emphasis added) The Evidence Act also includes provisions relating to comments that may be made on the failure of family members of the accused to give evidence (spouse, de facto spouse, parent or child of the accused).

1. Their Honours pointed to the adverse consequences of the strict understanding of the prohibition when the jury asked a question about an accused’s failure to give evidence:[59]

Reading the statutory prohibitions against comment on an accused’s failure to give evidence in this way led to an unfortunate and unintended consequence.  As jurors came to understand that it was open to an accused person to give sworn evidence at trial, the jury would sometimes ask a judge what they were to make of the fact that the accused had not given evidence in that way.  Because of the prohibition on judicial comment on the subject, trial judges were left to tell the jury that they could not answer the question.

[59]Azzopardi v The Queen (2001) 205 CLR 50, 67-8, [44].

1. The prohibition on comment may have led to judges telling a jury that they could not answer the question but the prohibition did not prevent a reaffirmation to the jury of the presumption of innocence, and a direction that the subject matter of the question was ‘not something they ought to consider; that they should concentrate on the evidence that in fact had been adduced and that they should keep in mind that the burden of proof rested on the Crown’.[60] The applicant argued here that, as the response from the trial judge inappropriately reflected the legal restrictions that applied under s 399(3), the error committed was analogous to that made when a discretion is exercised taking into account an irrelevant consideration or applying the wrong test.[61]

   [60]R v S (1997) 93 A Crim R 109, 111 (Phillips CJ, with whom Ormiston JA and Hedigan AJA agreed).

   [61]See Crofts v The Queen (1996) 186 CLR 427, 432 (Dawson J).

1. The applicant urged that if the judge was to issue a warning to the jury about impermissible or dangerous paths of reasoning, she ought to have expressed that in terms which, by analogy, reflected the precision countenanced by the High Court in Azzopardi:[62]

[I]f an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.  

[62](2001) 205 CLR 50, 70 [51].

1. Furthermore, the applicant submitted, the trial judge ought to have gone on  expressly to dispel the Jones v Dunkel reasoning by directing that the jury was not to infer that had a witness been called to give evidence of the applicant’s character, he or she would not have assisted the defence case, nor that the absence of any character witness meant that the applicant was not a person of good character, nor that, more generally, an inference could be drawn that the applicant was not a person of good character. 

1. However, with respect to the Azzopardi direction, the New South Wales Court of Criminal Appeal acknowledged in R v Colville,[63] that even where an accused is silent, it is not necessary for the warning given by the trial judge to be expressed in any particular form of words.  It is not a matter of:[64]

taking such statements as have been quoted from Azzopardi, and using them as some kind of routine check list to be intoned mantra-like to the jury.

What ha[s] to be done [is] to give the jury a clear and circumspect, but sensible and practical, direction having a sensible and practical regard to the just requirements of the particular case.

[63](2003) 137 A Crim R 543.

[64]Ibid 555 [63]-[66].

1. In R v Colville the direction given in the face of silence by the accused was in these terms:[65]

Members of the jury the accused in this trial had the opportunity of giving evidence, he did not do so.  But I emphasise members of the jury he was perfectly entitled to take that course and as he has done and as Mr Winch has reminded you what he says before you in this trial [is] what he said during the interview which is before you as in the transcript and which you’ve heard played this morning.  When he was interviewed in 1997 on 18 August, what he said there is what he, in effect, says to you here.

Members of the jury it is important of course that I emphasise, as I have said already, there is no onus upon the accused to prove that he is not guilty.  It is for the Crown to prove that he is guilty.

[65]Ibid 555 [65].

1. As the New South Wales Court of Criminal Appeal observed in R v Wilson,[66] it is also not desirable for all four ingredients of the Azzopardi direction to be used if the warning given has already adequately covered the same ground.[67] 

   [66](2005) 62 NSWLR 346.

   [67]Ibid 355, [34]-[35].

1. Where, as here, an issue is raised because of a question asked by the jury in relation to an absence of character witnesses, it is not necessary, in my opinion, for the trial judge to give a direction that covers each of the four ingredients in Azzopardi.  An express warning that the absence of character witnesses should not be treated as evidence against an accused or as an implied admission against him or her (reflecting the first two ingredients of the warning in Azzopardi) could well be counter-productive and reinforce the risk of prejudice.  There is much to be said for the view that a trial judge faced with such a question could draw on the language of Azzopardi to emphasise that the absence of evidence from character witnesses should not be used to ‘fill gaps’ in the evidence of the prosecution case or as a ‘make-weight’ to assist the prosecution in discharging its burden of proof (the last two ingredients of the warning in Azzopardi).  However, I do not consider that the absence of those statements from the trial judge’s direction here rendered her direction inadequate. The direction made plain that the onus lay squarely on the prosecution.  The jury’s unequivocal understanding of this was apparent in the preface to the character evidence question.  The trial judge made clear to the jury that the totality of the evidence upon which the prosecution relied to prove its case was already before them.  This undoubtedly implied that the absence of character witnesses was not to be treated as part of the evidence against the accused and was not something relied upon by the prosecution.  While her Honour did not state expressly that the absence of character witnesses was not to ‘fill gaps’ in the evidence of the prosecution, it was made plain that the only evidence to be considered was that which in fact had been adduced.  Equally, although her Honour did not say that the absence of character witnesses was not to be used as a ‘make-weight’ in assessing whether the prosecution had proved its case beyond reasonable doubt, the jury was warned that the issue of whether the criminal standard of proof had been met relied wholly on the evidence on which the prosecution sought to rely to prove its case.  The jury was to focus exclusively upon that evidence.  The propositions expressed by the last two ingredients of the Azzopardi direction had been adequately conveyed, albeit in somewhat different language.

1. Furthermore, the jury was told that the issue of character witnesses for the accused was an irrelevant consideration and there was to be no speculation beyond the evidence actually presented.

1. As mentioned above, the High Court in Dyers v The Queen considered the circumstances in which there is a risk that a jury will engage in impermissible Jones v Dunkel reasoning.  There, Gaudron and Hayne JJ referred to the Azzopardi direction and its implications for warnings that a jury is not to engage in that form of reasoning.  In that context, they said:[68]

[A]s was pointed out in Azzopardi, if the accused does not give evidence it is almost always desirable to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.  Likewise, where there is evidence that there may be persons who could have, but have not, given relevant evidence, it is almost always desirable to tell the jury that they may not speculate about what those witnesses might have said but must decide only on the evidence that has been led.  A direction of that kind, about how the jury should not reason, is a proper form of judicial instruction to the jury.

[68](2002) 210 CLR 285, 294 [15] (emphasis added, citations omitted).

1. To similar effect Callinan J said:[69]

In almost all cases a trial judge should say nothing about an absent material witness whom an accused might supposedly have called.  At most, a trial judge might in some circumstances have occasion to say that the jury should act on the evidence, and only the evidence that has been called.

[69]Ibid 328 [123] (emphasis added). Kirby J stated (at 305 [52]): ‘The Jones v Dunkel point:  In relation to this issue I agree with the joint reasons [of Gaudron  and Hayne JJ] and the reasons of Callinan J’.

1. I consider that, in the circumstances of this case, the asking of the character evidence question was an occasion of the type envisaged by Callinan J on which it was appropriate for the trial judge to say, as her Honour did, that the jury should act on the evidence, and only the evidence that had been called.  I consider that the direction her Honour gave that the issue raised by the character evidence question was irrelevant and that the jury ought not to speculate beyond the evidence actually given was faithful to the form of judicial instruction to the jury approved by Gaudron and Hayne JJ.  It was not necessary, although it may have been desirable, for her Honour to have added specifically that the jury was not to speculate about what any character witnesses (including Detective Acting Senior Sergeant Simpson) might have said.

1. I consider that the question raised by Ground 2 was reasonably arguable, but in my opinion the direction given by the trial judge was adequate.

1. My opinion is not altered by the fact that the applicant was a police officer who thus occupied a position of public trust nor that the question related to the applicant’s character.  The trial judge clearly could not explain to the jury that it was open to the applicant to call character witnesses in his support but that if he placed his character in issue he was at risk of the prosecution leading evidence of bad character by way of rebuttal.[70]  To have given a direction stating expressly what inferences the jury were not to draw from any evidence that might have been given from witnesses who were not called but could have been would have invited the jury to engage in dangerous speculation, as the Crown submitted.[71]  So too would a direction more generally about the inferences that were impermissible in relation to the applicant’s character.  This may well have elevated the issue of the applicant’s character in the jury’s mind as the issue would have become the focus of a statement by the judge, with the status that such a statement inevitably carries.  In addition, the direction may have caused the jury wrongly to consider that it would be incompatible to convict the applicant while complying with the trial judge’s direction not to reason that the applicant was not, or might not be, a person of good character.  Clearly the safest and most prudent direction was to tell the members of the jury that they must not engage in impermissible reasoning;  they must not speculate but confine themselves to the evidence before them.  This is precisely what the trial judge did.  

   [70]See Evidence Act, s 110;  Attwood v The Queen (1960) 102 CLR 353.

   [71]See [91] above.

1. I reject Ground 2.

Ground 3 – Was the conviction unsafe and unsatisfactory?

1. The applicant contended that no reasonable jury could have been satisfied that he committed the offence because the evidence was flawed and incomplete.  In other words, the applicant argued that it was not open to the jury to be satisfied of guilt beyond reasonable doubt, that ‘the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[72]  It was submitted that when this Court undertook an independent assessment of the evidence, as it must do under this ground, it could not be satisfied that the applicant was guilty of rape.[73]

   [72]Libke v The Queen (2007) 230 CLR 559, 596-7 [113]. See also R v Klamo (2008) 18 VR 644; M v The Queen (1994) 181 CLR 487.

   [73]See SKA v The Queen (2011) 85 ALJR 571, 576-7 [20]-[24].

1. The evidence given by the complainant at trial was that:

·    before she went to sleep, she had not consumed any alcohol, any illicit drugs, or any medication to assist her to sleep;

·    she could not recall whether she had slept naked on that night;

·    she did not normally sleep face down and with her face in the pillow;

·    although normally a heavy sleeper, whether she slept heavily depended upon a variety of factors, including how tired she was – she did not say that she was sleeping heavily at the relevant time;

·    when she woke up, she was lying face down with the applicant on top of her and with his penis (already) inside her anus;

·    she had no recollection of her body being moved into the position of being face down and with her legs having been spread apart by the applicant;

·    she had not previously had anal sex;

·    the act of anal intercourse was forceful, painful, horrible and there was excruciating pain;

·    although she stated in cross-examination that she did not know how long this act of anal intercourse had taken, she had previously said, in a statement to the police, that the act took about five minutes;

·    she suffered no physical injury and there was no bleeding;

·    she could not recall whether the applicant had ejaculated during the act of anal penetration although she had previously said, in a statement to the police, that the applicant had ejaculated during the act of anal penetration.

1. The applicant submitted that it was not open to the jury to convict because of the inherent implausibility of the account given by the complainant.  In particular, he submitted that it was most unlikely that the complainant:

(1)        who had not taken alcohol, drugs or medication before sleeping, would have remained asleep while her body was moved by the applicant into the position described in her evidence as the one in which she awoke;

(2)        would have remained asleep until the time when the applicant’s penis had already entered her anus;

(3)        would neither have bled nor suffered some physical injury;

(4)        would not recall whether or not the applicant had ejaculated.

1. The respondent submitted that it was reasonably open for the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.  The respondent emphasised that the evidence of the complainant was that she was generally a heavy sleeper and that she cried and struggled, being unable to get up because the applicant was on top of her, and the event ended with the applicant removing himself from being on top of her.  There was no medical evidence before the jury to suggest that physical injury or bleeding would necessarily have followed if the events had occurred as the complainant said they did.  The complainant gave evidence that the whole event was traumatic.  The complainant was specifically asked about her inability to remember by the time of the trial whether or not the applicant had ejaculated:

Can I suggest to you … that if this incident that you allege had taken place, that is a memory that you would have forever?

The complainant responded:

But can I suggest to you that it’s obviously something that I’m trying to forget.

1. More importantly, the applicant’s submissions about the inherent implausibility of the complainant’s account depended in part upon the assumption not only that the complainant’s legs had been parted but that her body had been moved in the bed into a position where she was lying face down with her face on the pillow, and that this was most unlikely to occur while she remained asleep.  In this respect the complainant’s evidence was as follows:

[A]t the time that you say you woke, you woke with [the applicant’s] penis inside your anus, is that right? --- Yes.

Him having anal intercourse with you whilst you’re asleep? --- Yes.

You had not – with your face down, is that right? --- Yes.

Is that the manner in which your normally sleep, face down? --- Um sometimes.

With your face in the pillow? ---Um most of the time on my side.

1. Because the complainant admitted that she couldn’t remember what position her head was in when she went to sleep that night, the applicant could not rely on the inherent implausibility of her not having awakened while her body was moved when the evidence adduced was that she ‘sometimes’ slept face down.  If so, the act of intercourse could have occurred without the need for the complainant’s entire body to have been moved into a different position.  The allegation of implausibility loses much of its support.

1. The answers given by the complainant were clear and truthful without embellishment.  I do not consider, on the evidence, that her account was inherently implausible.

1. In my opinion, it was reasonably open for the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.  I do not consider that the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.  I do not consider that the jury ought to have had a reasonable doubt as to whether the anal intercourse occurred.  On the evidence, I am satisfied that the applicant was guilty of the offence of rape, as charged.

1. In my opinion, the jury’s verdict is neither unsafe nor unsatisfactory.

1. For these reasons, Ground 3 fails.

1. I would dismiss the application for leave to appeal against conviction on Grounds 1 and 3, and grant the application for leave to appeal on Ground 2 but dismiss the appeal. 

The application for leave to appeal against sentence

1. The application for leave to appeal against sentence was premised on this Court allowing the appeal.  As I consider that the application for leave to appeal against conviction should be dismissed on Grounds 1 and 3, and that leave to appeal should be granted with respect to Ground 2 but the appeal should be dismissed, the occasion for considering the application for leave to appeal against sentence does not strictly arise and the application should be dismissed.  However, I will examine the submissions made on sentence, in the event that I am wrong with respect to the conviction. 

1. The Full Statement of Grounds indicated that the applicant sought to challenge each of the individual sentences for the count of rape, and the five counts of possession and one count of misconduct in public office, as manifestly excessive.  However, this was clarified at the hearing and the applicant indicated not only that there was no challenge to the sentence imposed for rape (the application for leave to appeal against sentence only arising in the event that the rape conviction was set aside) but also that there was no challenge to the individual sentences imposed for the other six offences.  It was also clarified that there had been no application for leave to appeal brought in respect of the sentence imposed on the second separate count of misconduct in public office, the sentence (of 18 months) being imposed on 10 December 2010, four days after the applicant’s submissions were filed with this Court. 

1. The basis of the applicant’s challenge was that, the rape conviction being hypothetically set aside, there would be a need for the applicant to be re-sentenced and the cumulation currently imposed re-considered.  It was accepted that the circumstances of the second count of misconduct in public office were quite separate from those comprising the first count and that some cumulation would thus be warranted.  The circumstances of the second count of misconduct in public office involved the applicant returning to the house of a vulnerable young woman on whom he and other police officers had conducted a welfare check and persuading her to leave her house to go to his apartment whereupon they engaged in sexual activity. 

1. The applicant submitted that the appropriate range for the offending would be a head sentence of 27 to 30 months with a minimum non-parole period of 20 months.[74]  The respondent submitted that 30 months would be at the lower end of the range.

   [74]It was implicit in the applicant’s submission that were this Court to engage in a re-sentencing exercise, which it would be required to do if the conviction and sentence for rape were set aside, this Court might impose a sentence that would be higher than the balance left after the sentence for rape (seven years and six months’ imprisonment) was subtracted from the total effective sentence (eight years and seven months’ imprisonment).  That balance would be one year and one month (13 months), clearly less than the range of 27-30 months submitted as appropriate by the applicant.

1. The circumstances of the drug offences were that, over four years, the applicant, while a police officer, led a ‘double life’ using cocaine freely at a number of nightclubs he frequented and introducing and encouraging many others, usually young women, to use it also while flaunting his status as a police officer.  He also used MDMA (ecstasy) and gave it willingly to others.  The first count of misconduct in public office involved the applicant thwarting a potential search for cocaine by other police officers in a hotel room occupied by a friend, and thwarting the search of the bags of his friend during the hotel checkout.  The applicant thereby succeeded in steering the police officers away from the discharge of their duties.

1. The applicant had a troubled early life, leaving Vietnam on his own at the extraordinarily young age of four to five years old when his father was imprisoned as a member of the South Vietnamese army during the Vietnam war.  The applicant travelled to Japan where he lived for eight months before being sponsored to come to Australia by an uncle.  The family was eventually reunited in Australia.  He joined the police force as an adult, after an aborted attempt at tertiary study, and was a member of the police force for 12 years.

1. Taking the sentence of 18 months’ imprisonment for the first count of misconduct in public office as the base I would re-sentence the applicant to a total effective sentence of 28 months’ imprisonment with a minimum non-parole period of 20 months, as follows:

Count on Presentment X00067702.4	Offence	Plea	Sentence	Cumulation
1.	Possession of a drug of dependence (cocaine) (Drugs, Poisons and Controlled Substances Act 1991, s 73(1)(b))	Guilty	Three months’ imprisonment	One month
2.	Possession of a drug of dependence (cocaine)	Guilty	Three months’ imprisonment	One month
3.	Possession of a drug of dependence (cocaine)	Guilty	Four months’ imprisonment	One and a half months
4.	Possession of a drug of dependence (cocaine)	Guilty	Four months’ imprisonment	One and a half months
5.	Possession of a drug of dependence (MDMA)	Guilty	Three months’ imprisonment	One month
6.	Misconduct in public office (common law; Crimes Act, s 320)	Guilty	18 months’ imprisonment	Base
Second Count of Misconduct in public office		18 months’ imprisonment, 14 of which were to be served concurrently[75]
Total Effective Sentence:		28 months’ imprisonment
Non-Parole Period:		20 months’ imprisonment

[75]Pursuant to the Orders made by her Honour on 10 December 2010.

1. Pursuant to s 6AAA of the Sentencing Act 1991, I would declare that, but for the applicant’s guilty pleas which have saved the community time and expense, I would have re-sentenced the applicant to a total effective sentence of 40 months with a minimum non-parole period of 30 months.  Taking the sentence of 24 months’ imprisonment for the first count of misconduct in public office as the base, I would have re-sentenced as follows:

Count on Presentment X00067702.4	Offence	Plea	Sentence	Cumulation
1.	Possession of a drug of dependence (cocaine) (Drugs, Poisons and Controlled Substances Act 1991, s 73(1)(b))	Guilty	Five months’ imprisonment	Two months
2.	Possession of a drug of dependence (cocaine)	Guilty	Five months’ imprisonment	Two months
3.	Possession of a drug of dependence (cocaine)	Guilty	Six months’ imprisonment	Three months
4.	Possession of a drug of dependence (cocaine)	Guilty	Six months’ imprisonment	Three months
5.	Possession of a drug of dependence (MDMA)	Guilty	Five months’ imprisonment	Two months
6.	Misconduct in Public Office (Crimes Act, s 320)	Guilty	24 months’ imprisonment	Base
Second Count of Misconduct in public office		18 months’ imprisonment, 14 of which were to be served concurrently[76]
Total Effective Sentence:		40 months’ imprisonment
Non-Parole Period:		28 months’ imprisonment

[76]Pursuant to the Orders made by her Honour on 10 December 2010.

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