Jacobs (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0160
S APCR 2018 0161
S APCR 2018 0162

GLEN JACOBS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the complainants and other witnesses.

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JUDGES:	PRIEST and KAYE JJA, and KENNEDY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 November 2019
DATE OF JUDGMENT:	6 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 285 First Revision: 13 December 2019
JUDGMENT APPEALED FROM:	[2018] VCC 721 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Applicant charged with rape and other sexual offences – Separate trials in respect of each complainant – Issues in each trial whether complainant consented to sexual activity and whether applicant aware of lack of consent – Applicant convicted on one charge of rape in first proceeding and two charges of rape in second proceeding – Whether trial judge erred in admitting expert evidence of psychiatrist in first and second proceedings under s 108C of the Evidence Act2008 and s 388 of the Criminal Procedure Act 2009 – Expert evidence not capable of rationally affecting assessment of a fact in issue in first and second proceedings – Whether admission of expert evidence led to substantial miscarriage of justice – Application for leave to appeal granted – Appeal allowed – Conviction in first proceeding and convictions in second proceeding quashed – Criminal Procedure Act 2009 ss 276(1)(b), 388 – Evidence Act 2008 ss 55, 76, 79, 108C – MA v The Queen (2013) 40 VR 546; M v The Queen [2011] NZCA 191 considered.

CRIMINAL LAW – Appeal – Conviction – Applicant convicted on one charge of rape in third proceeding – Applicant denied non-consensual intercourse with complainant – Applicant offered complainant to stay in his apartment – Applicant told complainant apartment had two bedrooms – Apartment was a studio apartment – Complainant arrived and applicant told her he recently moved to studio apartment – Trial judge admitted lease of studio apartment on basis that lease was relevant to applicant’s credibility – Whether substantial miscarriage of justice – Lease not admissible as credibility evidence under ss 108A and 108B of the Evidence Act2008 – Documentary evidence tendered to jury capable of being given undue weight – Substantial miscarriage of justice due to admission of lease into evidence – Application for leave to appeal granted – Appeal allowed – Conviction in third proceeding quashed – Evidence Act 2008 ss 102, 108A, 108B.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Ms G Connelly	Emma Turnbull Lawyers
For the Respondent	Mr B Sonnet	Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
KENNEDY AJA:

The applicant was originally subject to a 21 charge indictment which alleged that he had committed a number of sexual offences in respect of six complainants over a seven week period between 30 March and 21 May 2015. As a consequence of an interlocutory appeal on behalf of the applicant, the charges relating to each complainant were severed.[2]
[2]Jacobs (a pseudonym) v The Queen [2017] VSCA 309.

In the upshot, the applicant was subject to separate trials in four proceedings. The first trial (‘the first proceeding’) concerned two charges involving complainant ‘AR’.[3] The applicant was acquitted on the first charge, and convicted on the second charge. The second trial (‘the second proceeding’) concerned three charges involving complainant ‘AF’. The applicant was acquitted on the first charge, and convicted of the second and third charges. The third trial (‘the third proceeding’) concerned one charge involving complainant ‘KL’. The applicant was convicted on that charge. The final trial, involving complainant ‘LK’, resulted in the applicant being acquitted on the five charges of rape, and one charge of false imprisonment. The prosecution discontinued the charges relating to the other two complainants.
[3]To ensure that there is no possibility of identification, this judgment has been anonymised by the use of initials in place of the names of the complainants and other witnesses.

The applicant was sentenced, in respect of the charges on which he was convicted, to a total effective term of imprisonment of 12 years and 4 months, with a minimum non-parole period of 7 years and 6 months.[4]
[4]DPP v Jacobs (a pseudonym) [2018] VCC 721 (‘Reasons’).

In each matter, the applicant seeks leave to appeal his convictions and sentence. One of the grounds of the applications for leave to appeal conviction, in respect of the first and second proceedings, concerns the admissibility of evidence by Dr Danny Sullivan, a forensic psychiatrist, which, in general terms, was directed to explaining responses by some complainants to unwanted sexual conduct, and delay by some complainants in reporting that conduct. There are some common issues that are raised by that ground of appeal in each application, but, in light of the different factual circumstances of each case, it is necessary to give the ground relied on separate consideration.

FIRST PROCEEDING — APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

At the time of the events with which the first proceeding was concerned, the applicant was 28 years of age, and the complainant, AR, was 29 years of age. The applicant was charged with two counts of rape which he was alleged to have committed on 24 April 2015. He was acquitted by the jury on the first charge, but convicted on the second charge. He was sentenced to a term of imprisonment of 6 years and 6 months in respect of that charge, with sixteen months of that sentence being directed to be served cumulatively with the sentences that were imposed in respect of the charges on which he was convicted in the second and third proceedings.

At some time before the date of the offence, the applicant and AR had each created profiles on an online dating platform, ‘Plenty of Fish’. Having connected with each other through that platform, they met on two occasions before the date of the offending, on 21 and 23 April 2015.

On 24 April 2015, the applicant and AR attended a bar together after AR had finished work. They then travelled together in a taxi to the applicant’s apartment. There, after watching a television show on a laptop, they commenced to become mutually intimate, in the course of which the applicant, with AR’s consent, penetrated her vagina with his penis. After he had done so, AR told him to desist. The applicant, after a short delay, withdrew and apologised. Those circumstances were the subject of charge 1 (rape), on which the applicant was acquitted. AR agreed to remain in the apartment, and she lay down again on the applicant’s bed. In due course they resumed becoming intimate. At one point the applicant was on top of AR. According to AR, she then told the applicant to desist. However, the applicant did not cease, and he inserted his penis into AR’s vagina. AR alleged that while doing so he held her hands and wrists, and he used his body weight to pin her to the bed. Those circumstances constituted charge 2 (rape), on which the applicant was convicted.

AR then left the apartment. In the following days, AR and the applicant exchanged text messages, in which the applicant stated that the incident had been a misunderstanding. AR did not report the matter to the police. However, she told friends and a fellow employee. The matter came to the attention of the police after the applicant’s telephone was examined as a result of a complaint by a different complainant. On 1 June 2015, police contacted AR and took a statement from her. That was the first occasion upon which AR complained to the police about the incident. No record of interview was conducted by the police with the applicant concerning the complaints made by AR.

At the trial, the applicant did not call evidence or give evidence on his behalf. He did not deny engaging in the sexual activity alleged by the complainant. The issues that were to be determined by the jury concerned AR’s consent and the applicant’s belief in AR’s consent.

Before the commencement of the trial, counsel for the applicant objected to the admissibility of evidence that the prosecution proposed to call from Dr Danny Sullivan. In the proposed amended summary of prosecution opening, the prosecution identified five ways in which it sought to lead the evidence, namely:

(a) there are no normal or usual responses to rape or other unwanted sexual activity;

(b) the majority of rapes are not reported to police, and in many cases are significantly delayed, at times by years;

(c) sexual assault is less commonly a behaviour perpetrated by strangers, but is more likely to occur with acquaintances, friends or even partners;

(d) cultural backgrounds, which endorse strong patriarchal values and limited power of women, may also be associated with tolerance of violence and sexual violence against women, and with limited police interest in fairness in the prosecution; and

(e) reactions at the time of rape are extremely variable.

The judge ruled that that evidence was admissible pursuant to s 108C of the Evidence Act 2008 and s 388 of the Criminal Procedure Act 2009.[5]
[5]DPP v AS (a pseudonym) (Ruling No 4) [2017] VCC 1675 (‘First Ruling’).

The applicant seeks leave to appeal the conviction on three grounds, the first two of which were directed to that ruling. The grounds upon which the applicant relies are as follows:

(1)The Learned Trial Judge erred in admitting the evidence of Dr Danny Sullivan over objection.
(1A)A substantial miscarriage of justice was caused by the jury being permitted to reason that Dr Sullivan’s evidence:
(a) enhanced the credibility of the particular complainant; and/or
(b) made it more likely that:
(i)The complainant did not consent; and/or
(ii)The accused was aware the complainant did not consent or might not have been consenting or did not have a reasonable belief in consent; and/or

(iii) The facts were as alleged by the prosecution.

(3)The Learned Trial Judge erred in refusing to administer a direction to the jury that the previous representations made by the complainant do not independently confirm her allegations.

In order to address those proposed grounds of appeal, it is necessary to summarise the evidence in the first proceeding in some more detail.

First proceeding — summary of evidence

AR gave evidence that she was born in Egypt in 1985. She belongs to the Muslim faith. In 1994, she migrated with her family to New Zealand. In 2012, she moved to Australia.

AR explained how she had a profile on the dating website ‘Plenty of Fish’, and that, through that website, she met the applicant. After a number of days communicating with each other, they met at a bar in Windsor by arrangement on 21 April 2015. While they were at the bar, AR suggested to the applicant that he accompany her to a trivia event on the same evening. After attending that event, the applicant and AR left separately. They met again two days later on 23 April outside the gymnasium that AR attended. After they met there, they visited a café, and then went to a bar. While they were at the café, the applicant attempted to hold AR’s hand, but she pulled it away. After attending the bar, the applicant and AR caught the same tram to their respective homes. While they were on the tram, the applicant held AR’s hand. AR said that she did not feel comfortable about that, but she did not want to make a scene, so she allowed him to do so. When AR alighted from the tram in Prahran, the applicant walked her to her accommodation. There he kissed her and bade her goodnight.

On Friday 24 April 2015, the applicant and AR met again by arrangement. Before they met, AR had attended a bar to have drinks with a colleague. There she consumed five alcoholic drinks. In her evidence, she said she was not intoxicated at that stage, but she was ‘just happy’. During the evening the applicant contacted AR by text messages. They arranged to meet on the same tram. Having met in that way, they travelled to Chapel Street, where they visited a bar and had a drink together.

After they left the bar, the applicant suggested that they should obtain some alcohol and go back to his house. AR responded that she had some alcohol at her own home, and that the applicant could accompany her there. They then caught a taxi together to AR’s residence in Windsor. When they arrived there, AR went inside and saw that her housemates were asleep. The applicant remained outside in the taxi. Although AR wanted the applicant to have a drink at her home, the applicant persuaded her to accompany him to his apartment. After initially resisting that suggestion, AR relented, and agreed to go back to the applicant’s home.

When they arrived at the applicant’s apartment, AR and the applicant continued to drink and smoke cigarettes together. They then sat on the applicant’s bed and watched a television show on the applicant’s laptop.

While they were doing so, the applicant and AR kissed each other, and the applicant touched AR’s breasts, slid his hand down her dress and kissed her bare breast. From there they commenced to become intimate, and the applicant undressed AR with her consent. He then removed his own clothes, got on top of AR, continued to kiss her, and inserted his penis into her vagina. At this stage there was no suggestion, in AR’s evidence, that she was not consenting to what was occurring. However, after the applicant had penetrated her, she told him to stop. According to AR, the applicant ‘kept going’ and ‘didn’t stop’. He then did remove his penis from her vagina, and she got up and tried to cover herself with the sheets or duvet. When AR said to him ‘what was that?’, he responded ‘I’m sorry I didn’t realise I think I’m drunk’. The applicant continued to apologise to AR. He persuaded AR to remain and not to leave his apartment.

AR then covered herself with the sheet, and lay down. The applicant kissed AR, and she kissed him back. He started touching her breasts, and kissing her breasts again. He then got on top of AR. At that point, she said ‘I don’t want to do this’. However, the applicant inserted his penis into her vagina. She tried to push him off. At that stage, the applicant was holding her hands or wrists, and his weight was on her torso. Despite her protests, the applicant continued to have intercourse with her. Eventually he removed his penis, and let go of her wrists. She pushed him off her, and started to get up. The applicant tried to grab her, and she pushed him away. However, she felt a push, and fell to the floor.

The applicant then tried to prevent AR from putting her clothes back on. Ultimately she succeeded in doing so. He tried to persuade her to stay. Eventually she was able to dress and leave the apartment.

In the early hours of 25 April 2015, AR sent a text message to her housemate, CW (who is a male), who was then in Daylesford. In the text messages that ensued, she said to CW that she was ‘Just in a bit of trouble but I’m okay now’. She also said ‘It was an awful night but it’s over now and I made it home okay’. On the following Monday, 27 April, she sent a message to a work colleague stating that her date with the applicant did not go well.

As mentioned, following the incident, there were a series of text messages between the applicant and AR. By a message dated 2 May, the applicant said that AR was ‘very confusing and I don’t know which part was real … the very romantic and amazing part, or when you became so angry all of a sudden’. He said that he expected an apology from AR. In turn, AR rejected the suggestion that she owed the applicant an apology, and said that it was ‘the worst night of my life’.

In a series of text messages that followed, the applicant suggested that AR’s conduct on the night in question had been confusing, which, AR promptly rejected, stating that the night for her was frightening and a ‘wake up call’. In order to address grounds 1 and 1A, it will be necessary to return to the content of those text messages.

AR also gave evidence that on 31 May she sent a message to her friend, LB, in which she described what had occurred, and wrote:

… he started getting a bit frisky, and then I said to stop, but he didn’t. It was a bit out of control. I tried to leave and he hit me.

In cross-examination, AR agreed that, in the prelude to the physical intimacy, she and the applicant had been kissing and ‘cuddling’ together on the bed, that they both became naked and exchanged kisses, and that in that process the applicant progressed to physical intimacy. She agreed that she was happy for that to occur. She also agreed that it was impossible for her to say how long it was, after she said to the applicant to stop, that the applicant in fact ceased having intercourse with her and withdrew, on the first occasion. She confirmed that the applicant did withdraw, and that he apologised. She also agreed that very shortly after that, consensual intimacy continued, with AR returning the applicant’s kisses ‘in full’. She agreed that, at that point, she was an ‘active, equal willing participant’ in the events. At that stage, they were still both naked. There was more passionate kissing, with the applicant kissing AR’s breasts, while she was on her back. She agreed that she then very suddenly ‘moved’ from being aroused, to not wanting things to go further. She also agreed that she could not say for how long the applicant penetrated her, after she told him to stop. AR agreed that, after that second episode, in order that she could get off the bed, the applicant had to let her do so. She agreed that when she got off the bed, she was highly emotional, and the applicant was telling her to calm down. She said that she struck the applicant, but that was after he first ‘came at’ her.

AR said that she did not recall having any redness, soreness or bruising to her wrists where she said she was held by the applicant. She did not take any photographs of any injuries. She said that she did not provide to the police officer, who took her statement, the name of the fellow employee to whom she spoke on the following Monday, 27 April. AR also said that she and the applicant are both Muslims, and, according to the tenets of that faith, the fact that she was having premarital sex was a sin.

In re-examination, the prosecutor asked AR some questions about that matter. She said that she identified as a ‘modern Muslim’. She subscribed to the beliefs of the religion, but that she did not ‘do a lot of the practising’.

LB gave evidence that she and AR were very close friends, ‘like sisters’. She identified the text messages that passed between herself and AR, in which AR said (inter alia) that the applicant ‘started getting a bit frisky, and then I said to stop, but he didn’t … was a bit out of control. I tried to leave and he hit me’.

CW gave evidence that at 3.16 am on 25 April 2015, his mobile telephone received a text message from AR asking if he was awake. CW was then asleep. When he responded to the message later that morning, AR replied with texts saying ‘Was just in a bit of trouble but I’m OK now’ and ‘It was an awful night but it’s over now and I made it home Ok’.

Dr Sullivan gave evidence, in a general form, relating to the reactions of persons who have experienced unwanted sexual activity. He stated that he based that evidence on his reading of academic literature, and his experience of practice in a clinical setting.

As we will discuss, the critical issue, in relation to Dr Sullivan’s evidence, concerns whether any of it was relevant to the issues in the trial. For that purpose, it is convenient to summarise the salient aspects of his evidence as follows. Dr Sullivan stated:

(1)The two main factors, that influence a person’s response to rape or other unwarranted sexual activity, are, first, the circumstances of the unwanted assault, and, secondly, the personal characteristics of the person who alleges the unwanted sexual activity, including that person’s age, gender, sexual experience, cultural or religious background, and the degree of support that was available to that person.
(2)According to professional literature, a minority of alleged rapes are reported to the police, and many of those reports are made some time later. In the majority of cases reports to police are delayed.
(3)Research produced by the Australian Institute of Family Studies states that there are a range of reasons why people do not report sexual assaults, including uncertainty about what constitutes an assault, a concern about the repercussions of the report (shame), and a range of different factors. Some women may feel that they have brought it upon themselves, or feel inhibited about reporting a sexual assault, because they come from a cultural, social or religious background which says that premarital sex is forbidden.
(4)There are differences in cultural responses to unwanted sexual activity. One example are women of particular cultural or social backgrounds in which they are not expected to affiliate with men outside their immediate family.
(5)The cultural background of the person is an important consideration. It is a ‘very critical and differing aspect’ of the way in which people react with doctors, police or hospitals. In many cases, culture defines a particular role in the community for a gender. In some cultures, physically active and assertive males are privileged, and in others quiet and dedicated males are privileged.
(6)A number of persons, who have been the subject of unwanted sexual activity, continue to have further contact with the protagonist. In clinical practice, numbers of patients have reported having returned to a relationship or seeing the person who perpetrated the assault. In one study, thirty per cent of women said they had sex again with the person after they believed they had been sexually assaulted.
(7)A woman’s immediate response to the commencement of unwanted sexual activity may depend on the circumstances, including if the protagonist is very violent and aggressive, it might be feared that resistance would lead to increased violence. Victims report a range of different responses, depending on their personality or their cultural, social or religious background.

Finally, the informant, who was a member of the Moorabbin Sexual Offences and Child Abuse Investigation team, gave evidence. She stated that on 31 May 2015 she contacted AR, and met with her on 2 June 2015 in order to take a statement from her.

We turn, then, to the three proposed grounds of appeal.

Application for leave to appeal against conviction — Grounds 1, 1A

Grounds 1 and 1A of the application for leave to appeal against conviction concern the admissibility of the evidence of Dr Sullivan.

At the commencement of the trial, before the jury was empanelled, counsel for the applicant objected to the admissibility of that evidence, primarily on the basis that none of it was relevant to any of the facts in issue in the case. Counsel also submitted that the evidence, that was proposed to be adduced from Dr Sullivan, and, in particular, that which related to the cultural backgrounds of the applicant and AR, invited unfair speculation, and would be likely to cause significant prejudice to the applicant. It was pointed out that AR, in her statement to the police, gave an explanation for her delay in speaking to the police. In her text messages with the applicant, AR said that she wanted to put the matter out of her mind and get on with her life. Thus, it was submitted, AR, by her own evidence, would give an explanation for why she did not speak to the police. Accordingly, it was submitted, the evidence that was sought to be adduced from Dr Sullivan was irrelevant.

In ruling that the proposed evidence was admissible, the judge stated that the prosecution sought to adduce the evidence of Dr Sullivan to meet an attack on the credibility and reliability of the complainant, arising from her delay in making a complaint, and from ‘maintaining some form of relationship with the accused after the event’.[6] The judge noted that the prosecution would use the proposed evidence of Dr Sullivan ‘to re-establish her credibility and dispel any myths put forward, or that the jury might conceive, about the behaviour of the complainant’.[7] The judge referred to the decision of this Court in MA v The Queen,[8] and stated:

By analogy in this case the evidence of Dr Sullivan is necessarily general and I am satisfied will assist the jury to identify a possible range of normal behaviour by a complainant, in this case as an adult, so as to allow the jury to properly assess her credibility and reliability. This applies particularly, even though the complainant does provide an explanation as to her delay in making a complaint, and also makes reference to matters of shame and embarrassment. The evidence is also relevant to the subsequent interaction between the complainant and the accused.[9]

[6]First Ruling [31].

[7]Ibid.

[8](2013) 40 VR 564 (‘MA’).

[9]First Ruling [42].

Accordingly, the judge held that the evidence was admissible pursuant to s 108C of the Evidence Act and s 388 of the Criminal Procedure Act.

Submissions — grounds 1, 1A

In support of ground 1 and ground 1A of the application for leave to appeal against conviction, counsel for the applicant noted that the rationale, relied on by the prosecution, for admitting the evidence of Dr Sullivan was to re-establish the credibility of AR, in view of the delay by AR in making a complaint about the conduct of the applicant, and the fact that they maintained a form of relationship after the date of the offence. Counsel submitted that that proposition was misconceived. It had not been foreshadowed by the defence that any such attack would be made on the credit of AR, nor was cross-examination directed to the delay by her in reporting the matter to the police, or to the content of the text messages that passed between herself and the applicant after the date of the offences.

Counsel for the applicant noted that, in order that the evidence be admissible under s 108C of the Evidence Act, it must have the capacity to ‘substantially affect’ the assessment of the complainant’s credit. The evidence of Dr Sullivan could not have that effect, in the absence of any attack on the credibility of AR relating to the delay in making a complaint, or maintaining a continuing relationship with the applicant. Further, it was not in issue in the trial that sexual penetration had taken place, or that, at some point, AR had come to the view that the sexual penetration of her by the applicant was unwanted. The evidence of AR was not consistent with any of the evidence to be adduced from Dr Sullivan. The prosecution did not foreshadow an application to rely on s 38 of the Evidence Act to cross-examine AR to provide a basis for contending that the evidence of Dr Sullivan might have provided some different explanation for the manner, in which she conducted herself after the date of the alleged offences, than that given by AR. Accordingly, counsel for the applicant submitted, the evidence of Dr Sullivan was not capable of substantially affecting the assessment of the credibility of the complainant, and it was therefore not admissible under s 108C of the Evidence Act.

Counsel submitted that, similarly, the evidence of Dr Sullivan was not admissible under s 388 of the Criminal Procedure Act, because the opinions expressed by Dr Sullivan were not relevant to any fact in issue in the trial. It was not necessary for Dr Sullivan to give evidence about the ‘nature of sexual offences’ in accordance with s 388(a), as AR gave specific evidence that she resisted the applicant. Nor was the evidence admissible under s 388(b) since AR, on leaving the applicant’s apartment, had made contact with her flatmate and sent him a text stating that she had had a troubling experience.

Counsel further contended that, even if the evidence of Dr Sullivan were admissible, it ought to have been excluded under s 137 of the Evidence Act. The probative value of the evidence was limited. On the other hand, the evidence had the capacity to impermissibly enhance the credibility of the complainant, by inferring that AR had behaved in a manner that was consistent with her being a victim of the offences that she alleged against the applicant. The prosecution case depended on the jury’s acceptance of the evidence of AR. Thus, it was submitted, the impermissible bolstering of her credibility resulted in a substantial miscarriage of justice.

In response, counsel for the respondent submitted that the evidence of Dr Sullivan remained relevant, even if the defence did not explore or address the issues of the conduct of AR after the date of the offences, and the fact that she did not report the matter to the police during that period. A central issue in the trial was the credibility of AR. Evidence was led from the informant that it was the investigating police who contacted AR on 31 May 2015 and took a statement from her two days later. That evidence might have been misused by the jury to reason that AR’s delay in reporting the event materially affected her credibility. Thus, it was submitted, the evidence of Dr Sullivan was relevant to dispel any such misconception which might be held by a member of the jury.

Counsel for the respondent submitted that the evidence of Dr Sullivan, that a majority of victims of rape know their perpetrators, was relevant in this case, because AR had some acquaintance with the applicant. The evidence as to the cultural background of AR was relevant, because there was evidence that AR was of Egyptian background and a member of the Muslim faith. Counsel noted that the issue of her faith, and reference to the fact that she and the applicant might have sinned, had been referred to in the subsequent text communications that were tendered in evidence.

Counsel conceded that although the evidence of Dr Sullivan was relevant, it was not capable of substantially affecting the credibility of AR, so as to be admissible under s 108C of the Evidence Act. However, he contended, s 388 of the Criminal Procedure Act provided an alternative avenue for the admissibility of that evidence, and it did not require that the evidence be capable of substantially affecting the credit of the complainant.

Counsel for the respondent further submitted that the judge correctly ruled that there was no basis upon which to exclude the evidence of Dr Sullivan under s 137 of the Evidence Act. The judge, in his charge, gave a standard direction to the jury on the topic of expert evidence, and as to how the jury should evaluate Dr Sullivan’s evidence. The judge reminded the jury that the prosecution relied on the evidence to assist its assessment of the complainant’s evidence. No exception was taken by defence counsel to the directions so given by the judge to the jury.

Grounds 1, 1A — analysis and conclusions

In any case in which the admissibility of opinion evidence is in issue, the starting point is to identify precisely the fact in issue to which that evidence is claimed to be relevant. That proposition is trite, yet of fundamental importance. Plainly, evidence that is not relevant to the proof of a fact in issue is inadmissible. Further and significantly, the precise identification of the issue, to which the proposed opinion evidence is relevant, is necessary in order to determine whether, in fact, the evidence is probative of that fact in issue, and, if so, whether the witness, who is to give the evidence, is qualified to express that opinion, and whether that opinion is wholly or substantially based on the witness’ expert knowledge.[10]
[10]Evidence Act 2008 ss 55, 79; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743–4 [85] (Heydon JA).

Thus, in Dasreef Pty Ltd v Hawchar the plurality, in considering ss 76 and 79 of the Evidence Act 1995 (NSW), said:

Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered ‘to prove the existence of a fact’. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between ‘opinion’ and ‘fact’ or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of ‘fact’. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.[11]

[11]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 602 [31] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Honeysett v The Queen (2014) 253 CLR 122, 132 [25].

In the present case, the prosecution contended, and the judge ruled, that the evidence of Dr Sullivan was admissible as being relevant to the jury’s assessment of the credibility of the complainant AR, pursuant to s 108C of the Evidence Act and s 388 of the Criminal Procedure Act.

Section 102 of the Evidence Act provides that credibility evidence about a witness is not admissible. Section 108C provides an exception to that rule. It is in the following form:

108C Exception—evidence of persons with specialised knowledge
(1)The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if—
(a)the person has specialised knowledge based on the person's training, study or experience; and
(b)the evidence is evidence of an opinion of the person that—
(i)is wholly or substantially based on that knowledge; and
(ii)could substantially affect the assessment of the credibility of the witness; and

(c)the court gives leave to adduce the evidence.

(2)To avoid doubt, and without limiting subsection (1)—
(a)a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and
(b)a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following—
(i)the development and behaviour of children generally;
(ii)the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Section 388 of the Criminal Procedure Act provides:

388 Evidence of specialised knowledge in certain cases
Despite any rule of law to the contrary, in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court may receive evidence of a person's opinion that is based on that person’s specialised knowledge (acquired through training, study or experience) of—
(a)the nature of sexual offences; and
(b)the social, psychological and cultural factors that may affect the behaviour of a person who has been the victim, or who alleges that he or she has been the victim, of a sexual offence, including the reasons that may contribute to a delay on the part of the victim to report the offence.

The effect of those provisions was considered by this Court in MA. In that case, in 2011, the accused was convicted of seven charges involving sexual assaults against his daughter, which occurred between 1985 and 1989, when his daughter was between 11 and 14 years of age. The complainant first reported that offending to the police in 2008, after she had spoken to the pastor in her church. In the trial, the defence relied on the fact that, after the complainant had made a complaint to her mother when she was about 14 years of age, she continued to reside in the family home until she was 18 years of age. Subsequently, she voluntarily returned to the home to reside with the accused and her mother until she moved out five years later. The complainant continued to maintain a family relationship with the accused. Following his separation from the complainant’s mother, she was the last of the family members to maintain contact with him. It was only after the complainant became involved in her church, and spoke to her pastor, that she came to report the matter to the police.[12]
[12]MA (2013) 40 VR 564, 566–8 [8]–[18].

Unsurprisingly in MA, a large part of the cross-examination of the complainant focused on her behaviour during and after the offending, which was said to be inconsistent with her evidence that the accused had sexually assaulted her on a number of occasions. It was to rebut the defence case that the prosecution successfully applied, to the trial judge, to call expert evidence from Dr Sullivan, which was directed to establishing that that behaviour of the complainant was neither necessarily inconsistent with the allegations she made, nor an abnormal response to offending of the type that she described.

The Court of Appeal held that the judge was correct to admit that evidence. Osborn JA (with whom Redlich and Whelan JJA agreed), referred to the report of the New Zealand Law Reform Commission, which explained the rationale for the admissibility of such evidence. The Commission relevantly stated:

… the purpose of the evidence is educative: to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and therefore be better able to evaluate it.
Part of that purpose is to correct erroneous beliefs that juries may otherwise hold intuitively. That is why such evidence is sometimes called ‘counter-intuitive evidence’ … The purpose of such evidence is to restore a complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. This is similar to the use of expert evidence to dispel myths and misconceptions about the behaviour of battered women.[13]

[13]New Zealand Law Reform Commission, Evidence: Evidence Code and Commentary (Report No 55, 1999) vol 2, 67 [C110]–[C111].

Osborn JA stated, in respect of the evidence of Dr Sullivan:

Such evidence could not establish that it was probable the complainant was telling the truth, but it could establish that her behaviour was not demonstrative of untruthfulness by reference to common or usual patterns of behaviour as asserted by the defence. In this sense, it could establish that the counter-intuitive behaviour complained of was of neutral significance. It could not demonstrate that the behaviour rendered it more or less likely that the offending had occurred as alleged.[14]

[14]MA (2013) 40 VR 564, 568 [22].

Thus his Honour concluded:

For present purposes, it is sufficient to say that Dr Sullivan’s evidence as to patterns of victims’ behaviour was relevant to rebut the defence case as to counter-intuitive behaviour on the complainant’s behalf. The evidence bore upon the complainant’s credibility as contemplated by s 55 in the specific manner contemplated by s 108C(2). It was capable of substantially affecting the assessment of the complainant’s credibility as required by s 108C(1).[15]

[15]Ibid 571 [34].

In reaching that conclusion, Osborn JA noted that s 388 of the Criminal Procedure Act might provide an alternative basis for the admission of Dr Sullivan’s evidence.[16] In their concurring judgment, Redlich and Whelan JJA noted that no argument in the appeal had been heard as to how s 108C of the Evidence Act and s 388 of the Criminal Procedure Act ‘might interact’. Their Honours considered, by way of obiter dictum, that ‘ordinarily the decision as to admissibility is likely to be the same’ whether the issue of admissibility arose under s 108C or s 388.[17]
[16]Ibid 572 [36].
[17]Ibid 584 [95].

In M v The Queen,[18] the New Zealand Court of Appeal considered the admissibility of ‘counterintuitive’ evidence. In doing so, the Court cautioned against misuse of that evidence, in terms which are consistent with MA, and which apply to the question of admissibility of such expert evidence under s 108C of the Evidence Act and s 388 of the Criminal Procedure Act.
[18][2011] NZCA 191 (‘M’).

In that case, the Court was concerned with the admissibility of expert evidence called by the prosecution as to the behaviour of children who have been sexually abused. Having referred to the report of the Law Reform Commission, the Court stated:

The Law Commission said that the purpose of counter-intuitive evidence is to restore the complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. Mr Weir [counsel for the appellant] submitted that counter-intuitive evidence tends to go further than this, to the point of bolstering a complainant’s credibility. It was no doubt for this reason that this Court said in RA v R that care must be taken to make it clear to the jury that counter-intuitive evidence is by way of general background education and says nothing about the credibility of the particular complainant.[19]

[19]Ibid [31] (citations omitted).

The Court then summarised some relevant principles concerning the admissibility of such evidence, and to the use to which it may be put. Relevantly, for the purposes of this case, it stated:

To summarise, then:
(a)In many contested cases involving allegations of sexual abuse against children, the jury’s verdict will depend critically on their assessment of the complainants’ credibility.
(b)Research indicates that there is a substantial risk that a jury’s assessment of a complainant’s credibility will be influenced by behavioural assumptions that are unjustified.
(c)Section 127 is a partial recognition of this, in that it allows a judge to instruct the jury on the question of delay in reporting abuse.
(d)In cases where such unjustified behavioural assumptions may influence the jury’s assessment, expert evidence as to those assumptions may be led (assuming the requirements of s 25 are met).
(e)Where that is done, however, the judge must take care to instruct the jury as to the purpose for which the expert evidence has been led and that the evidence says nothing about the credibility of the particular complainant. This is because there may be a tendency for the jury to reason that:
•delayed reporting (for example) is common where children have been sexually abused;
•this is a case where there was delayed reporting by a child alleging sexual abuse;
•given that there was delayed reporting, the child must have been sexually abused.

To use the language of Dr London, the risk is that what is descriptive or observational information (some sexually abused children act in this way) is used as a predictive or diagnostic tool (a child who acts in this way must have been sexually abused).
(f)Where the Crown wishes to lead this type of expert evidence, the matter should be addressed pre-trial so that the parties and the trial judge know in advance precisely what the position is.[20]

[20]Ibid [32] (emphasis in original). See also DH v The Queen [2015] 1 NZLR 625, 636–7 [30].

In accordance with those principles, in an appropriate case in which it is alleged that an accused person has engaged in non-consensual sexual conduct in respect of a complainant, evidence of the kind given by Dr Sullivan, in the first proceeding, may be relevant for two possible purposes. First, it may explain conduct or reactions by the complainant at the time of the alleged offending, which, in the absence of such an explanation, might be considered to contradict or be inconsistent with the evidence of the complainant that the sexual conduct, complained of, was not consensual. Secondly, such evidence might be relevant to explain conduct by a complainant, during the period between the date of the offence and the time at which it is reported to the police, which, if not explained, might seem to contradict or be inconsistent with the evidence of the complainant that the sexual conduct, complained of, was not consensual. In either or both of such cases, the evidence would be relevant to explain counterintuitive conduct by a complainant which, if not properly understood, might lead a jury to erroneously conclude that the conduct, alleged against the accused, might have been consensual. In that way, the evidence would be directed to dispel misconceptions or ‘myths’ held as to the manner in which it might be expected that a victim of a sexual offence might react either at the time of the offending or in the period that followed it.

In addressing the question of the relevance of the evidence adduced from Dr Sullivan in the first proceeding, two points are clear. First, in his thorough cross-examination of AR, counsel for the applicant did not, at any stage, suggest that, on her version of the events, her conduct, either in the course of the incident that was the basis of the charges against the applicant, or in the period between the date of that incident and when the police spoke to AR, in any way contradicted or militated against her account that she did not consent to being penetrated by the applicant. That being so, there was no issue, in the trial, to which the evidence of Dr Sullivan could be found to be relevant.

We have summarised, at some length, the cross-examination by counsel of AR at the trial. The topics, to which the cross-examination was directed, concerned the circumstances in which the two acts of penetration, that were the subject of the complaint, took place. In particular, the cross-examination was designed to establish that, in the immediate prelude to each act of penetration, there had been mutual physical intimacy between the applicant and AR. Counsel did not suggest that at that time AR had conducted herself submissively in a manner which might have given a false impression to the applicant that she was consenting. Rather, the cross-examination was directed to contradict her account that the applicant continued to have intercourse with her after she withdrew her consent (in respect of charge 1) or did not consent at all (in respect of charge 2).

Thus, at the time at which Dr Sullivan gave his evidence, there was no suggestion, on behalf of the applicant, that AR had engaged in any ‘counterintuitive’ conduct that was inconsistent with her evidence. Nor was it suggested that, in the period that followed, any of the conduct engaged in by her contradicted, or in any way militated against, the veracity of her claim that the two acts of penetration were non-consensual. Thus, at the time at which Dr Sullivan gave evidence, there was no issue in the trial to which the evidence, given by Dr Sullivan, could be or was relevant.

Further, and secondly, disregarding the cross-examination of AR, there was, in any event, no issue arising from the evidence of AR to which the evidence of Dr Sullivan could be logically relevant.

As we have discussed, on the evidence given by AR, there was no equivocality or ambiguity about the way that she conducted herself on the night in question, which might have led a jury to conclude that she was in fact consenting, or had given the false impression that that was so. In the first part of the incident — that was the subject of charge 1 — her evidence was that after penetration had commenced, she expressly told the applicant to stop. The prosecution case was that the applicant disregarded that instruction, and continued to penetrate AR against her consent. By its verdict the jury had a reasonable doubt that the applicant continued to penetrate her after she withdrew her consent. In the second part of the incident — that was the subject of charge 2 — AR’s evidence was that she told the applicant to stop, and that she did not want to have intercourse, before the act of penetration commenced. She said that she tried to push the applicant off her, and that she protested when he commenced to penetrate her. She also described how the applicant restrained her, by holding her hands or wrists, and pressing down on her torso and legs. Thus, there was no suggestion that by reason of cultural or other factors, AR conducted herself in a manner which might have been misconstrued by the jury as evidence of her consent, or as indicating to the applicant that she was consenting, when she in fact was not doing so.

In addition, there was no suggestion in the evidence that the fact, that AR was born in Egypt and was of Muslim faith, played any relevant role in the manner in which she reacted to the applicant’s conduct, either at the time of the incident, or in the period before she spoke to the police about it. Thus, the references by Dr Sullivan to the potential effect of a complainant’s cultural or religious background, had no relevance to any issue in the trial. Further, in the present case, while AR did not report the incident to the police, and only spoke to the police after they had contacted her on 31 May 2015, there was uncontradicted evidence that she made complaints about the conduct of the applicant during that intervening period, commencing shortly after the incident. It will be recalled that at 3.16 am on 25 April 2015 AR attempted to contact her flatmate CW. On the next morning, she contacted him by text messages stating that she had been in ‘a bit of trouble’ and that she had had ‘an awful night’. On the following Monday, 27 April, she sent a message to a work colleague that her date with the applicant had not gone well. On 31 May, she sent a message to her friend, LB, stating expressly that although she had said to ‘stop’ her date had not done so.

The only contact that AR had with the applicant, after the incident, was in a series of text messages that passed between them commencing on 2 May 2015. In those messages, AR made it plain that, from her point of view, she had had a most unpleasant and frightening experience. The applicant commenced with a message stating that he expected an apology from AR because she had acted in a very confusing manner. AR responded in three consecutive texts, in which she said, respectively, ‘An apology from me?’, ‘Are you serious?’ and ‘That was the worst night of my life’. The applicant then persisted with text messages suggesting that AR’s conduct had been confusing, and that he could not consider the evening they had had together to be a ‘one night stand’. AR responded with a text that included the following:

Don’t lie. … That wasn’t a one night stand for me. That was the scariest night of my life and a wake up call.

The series of text messages that ensued between AR and the applicant were very much in the same vein, and it is not necessary to set them out at length. However, two points are clear. First, AR made it plain to the applicant that she resented his conduct, and regarded that the evening had been quite frightening. Secondly, AR did not, in any way, suggest that they should have an ongoing relationship. The only continuing relationship with them was that constituted by the text messages which we have summarised. Thus, there was no relevance to the evidence of Dr Sullivan that a number of persons, who had been the subject of unwanted sexual activity, continued to have further contact with a protagonist in a manner which might appear to contradict the assertion that they had been the subject to non-consensual sexual assault with that person.

In those circumstances, it is clear that none of the evidence of Dr Sullivan, that we have summarised in point form in paragraph 32 of these reasons, was or could be relevant to any issue involving the conduct of AR, either at the time of the incidents that were the subject of the two charges, or in the period that followed those incidents until the police spoke to AR. That is, in terms of s 55 of the Evidence Act, the evidence was not capable of rationally affecting the assessment of a fact in issue in the proceeding.

It follows, from the foregoing, that it was plain, from the outset of the trial, that the evidence, that the prosecution sought to adduce from Dr Sullivan, and which was led from him, would be, and in fact was, entirely irrelevant to any fact in issue in this trial. As we have noted, it is trite, but of particular importance, to observe the principle that evidence is only admissible in a criminal (or civil) proceeding, if it is relevant to a fact in issue. That proposition is of particular importance in a criminal trial.

Counsel for the respondent sought to bypass that proposition, by submitting that, while the matters about which Dr Sullivan gave evidence were not relevant to any fact that was in issue in the trial, nevertheless it was relevant for Dr Sullivan to give evidence about them, in order to preclude the jury from misusing, or misconceiving, aspects of the conduct of AR in this case.

That proposition must be rejected for two reasons. First, as we have outlined, there was no aspect of the conduct of AR, either during the incident in question, or in the period before the police spoke to her, which the jury could have regarded as being counterintuitive conduct, or from which the jury could have drawn a conclusion (albeit erroneously) that might have been precluded by the evidence of Dr Sullivan. Secondly, if there was any reason to apprehend that the jury might, in some way, draw a conclusion from some counterintuitive conduct by AR, such an erroneous approach by the jury could be precluded by an appropriate direction given by the judge under s 52 of the Jury Directions Act 2015. It is almost a matter of routine, in criminal trials in this State, for judges to give cautionary directions to juries, in order to ensure that they do not misuse evidence that is put before them, or use such evidence for an impermissible purpose. Most often, such directions are given in order to preclude a jury from engaging in a line of reasoning that might be impermissible and unfair to an accused person. However, equally, it is appropriate for a judge to give such a direction, where necessary, in order to ensure that a jury does not engage in impermissible reasoning that might be to the disadvantage of the prosecution. It is for that precise reason that the legislature has specified the particular direction prescribed by s 52 of the Jury Directions Act.

The submission made by counsel for the respondent would, if accepted, have extraordinary consequences. In essence, as counsel properly conceded, if that submission were accepted in this case, then evidence, such as that which was adduced from Dr Sullivan, would be admissible in a very large number of criminal trials in this State involving sex offences, notwithstanding that there is no issue between the parties to which that evidence is relevant.

It follows, from the foregoing analysis that the evidence that was adduced from Dr Sullivan in the trial was irrelevant and inadmissible.

The question, then, is whether, as a result of the erroneous admission of the evidence of Dr Sullivan, there has been a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act.

The principles, that relate to an appellate court’s decision as to whether such a miscarriage has occurred, have been considered by a number of decisions of the High Court.[21] The relevant principles were conveniently summarised in the recent decision of this Court in Dailakis v The Queen in the following terms:
[21]See, eg, Baini v The Queen (2012) 246 CLR 469, 479–82 [25]–[33]; Weiss v The Queen (2005) 224 CLR 300; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, 102–4 [21]–[29]; Lane v The Queen (2018) 357 ALR 1, 8–10 [38]–[43]; Kalbasi v Western Australia (2018) 264 CLR 62, 101–7 [112]–[127]. See also Andelman v The Queen (2013) 38 VR 659, 677–8 [85].

The principles relating to the correct application, of s 276(1)(b) of the Criminal Procedure Act, were considered by the High Court in Baini v The Queen, and have since been summarised in this Court. The principles, discussed in Baini, that are applicable in this appeal, include the following:
(1)A miscarriage may occur where the Court of Appeal cannot be satisfied that the error or irregularity, in the trial, did not make a difference to the outcome of the trial.
(2)A Court of Appeal’s satisfaction that a finding of guilt, against an appellant, was inevitable, notwithstanding the error or defect in the trial, may lead to the conclusion that there has not been a substantial miscarriage of justice.
(3)In such a case, the question is not whether a guilty verdict was open to the jury. Rather, the essential enquiry is whether such a verdict was inevitable.
(4)Thus, where a respondent to an appeal seeks to establish that the verdict was inevitable, an appellant may successfully meet that point, by demonstrating no more than that, had there been no error, the jury ‘may’ have entertained a doubt as to his or her guilt.
(5)In considering whether a guilty verdict was inevitable, notwithstanding an error or defect in the trial, the court must act on the written record of the trial, but taking into account the natural limitations that may exist in undertaking such an analysis.[22]

[22]Dailakis v The Queen [2018] VSCA 101, [38] (citations omitted).

In the present case, counsel for the respondent submitted that the admission of the evidence of Dr Sullivan did not occasion a substantial miscarriage of justice, because his evidence was of a general nature, and did not reflect on the specific issues that were to be determined by the jury in the trial. We do not accept that proposition for the following reasons.

First, it could not be concluded that, in the absence of the evidence of Dr Sullivan, the conviction of the applicant was inevitable. In the circumstances of the case, the first part of the incident, in which the applicant initially penetrated AR, was, on any view of the facts, consensual. The jury acquitted the applicant on the basis that it was not satisfied beyond reasonable doubt that he had continued to penetrate her after AR had withdrawn her consent. The second act of penetration, which occurred shortly after that circumstance, and which was the subject of charge 2, commenced with further mutual intimacy between the applicant and AR. The critical question for the jury was whether it was satisfied, beyond reasonable doubt, that in that context AR did, as she maintained, refuse her consent. In the context to that factual contest, it could not be properly concluded that, in the absence of the evidence of Dr Sullivan, it was inevitable that the jury would be satisfied beyond reasonable doubt that, at that point, AR did refuse her consent to being penetrated by the applicant. There was, in a very real sense, a live issue as to whether AR did, at that stage of the incident, express her lack of consent.

Secondly, although the evidence of Dr Sullivan was general in nature, the prosecutor, in his final address, submitted to the jury that the evidence was in fact of specific relevance to the case which it was to determine. In his final address, after referring to Dr Sullivan’s qualifications, the prosecutor said:

He told you several things of particular application to this case.

The prosecutor then told the jury that Mr Sullivan had explained that there were a broad range of responses to unwanted sexual assault. He reminded the jury that Dr Sullivan had referred to factors such as age, gender, sexual experience, cultural and religious background and the degree of support available to a person. He then said:

I suggest to you that when you heard these things being described by Dr Sullivan, your ears would have pricked up, when you heard various of these things being mentioned.

The prosecutor then concluded:

Now I would suggest to you that Dr Sullivan was of great assistance, and you’ll be able to go from the general to the specific and to apply what he said generally to the specific instance of [AR] and what she told you, her responses, what she and what she didn’t do.

In that way, the prosecutor did make the evidence of Dr Sullivan specific to the issue of the credibility of AR in the case. In his charge to the jury, the judge did not rectify that proposition, or explain to the jury what uses it may, and what uses it may not, make of the evidence of Dr Sullivan. Rather, the judge gave to the jury the standard direction that is given to juries about expert witnesses, namely, that it is the jury, as judges of the facts, who are to evaluate the evidence, and that the jury was not required to accept the opinion of Dr Sullivan. Thus, the jury was left with the submission made by the prosecutor — which was not remedied by appropriate direction by the judge — that it might use the evidence of Dr Sullivan, in some way, to bolster the credibility of AR. That proposition was inconsistent with the principles stated by this Court in MA, and by the New Zealand Court of Appeal in M.

The third aspect of the evidence of Dr Sullivan, relevant to the issue of whether there was a miscarriage of justice, concerned Dr Sullivan’s reference to the importance of culture and religion in assessing the response by a person to unwanted sexual activity. In referring to that aspect, Dr Sullivan principally, but not exclusively, focused on the issue of the response of the recipient to the unwanted sexual conduct. However, at one point, he went further. He said:

So in many cases culture defines what it is to … have a particular role in the community and that’s particularly so for the genders. … [W]e see that in some cultures physically active and assertive males are privileged and in others quiet and dedicated males are privileged. So, again, culture has a strong influence on the formation of personality. (Emphasis added)

In that passage, Dr Sullivan went beyond discussing the reaction of the recipient of the sexual conduct, and reflected on the position of the male. Relevantly, in the present case, the jury was aware that the applicant had come to Australia from Egypt, and was of Muslim faith. The evidence given by Dr Sullivan thus had the potential to affect the jury’s assessment of the conduct of the applicant, by inducing it to engage in a form of impermissible general tendency reasoning that would be prejudicial to the applicant.

Taken together, those three matters, to which we have referred, lead to the conclusion that as a result of the admission of Dr Sullivan’s evidence, there has been a substantial miscarriage of justice. In that respect, it must be borne in mind that, in a criminal trial, expert evidence has the real potential to be given particular weight by a jury, in excess of that which it deserves. In Dupas v The Queen,[23] and in MA,[24] this Court quoted the following passage from Dawson J in Murphy v The Queen[25] concerning the dangers of wrongly admitting expert evidence:

The admission of such evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted.

[23](2012) 40 VR 182, 214 [125].

[24](2013) 40 VR 564, 585 [97].

[25](1989) 167 CLR 94, 131.

For those reasons, we have reached the conclusion that, in the first proceeding, the application for leave to appeal against conviction must be granted, and the appeal allowed.

Ground 3

In addressing ground 3 of the application for leave to appeal against conviction, counsel for the applicant noted that evidence of complaint was adduced from two friends of the complainant, namely, LB and CW. In addition, the complainant gave evidence of having made a partial complaint to a work colleague. Further, the Facebook exchange between the complainant and LB, and the exchange of text messages between the complainant and the applicant, were tendered in evidence. At trial, counsel sought a direction to the jury that the complainant’s account to LB, CW and to her work colleague did not provide independent support for the complainant’s account. The need for that warning was heightened in light of the fact that the text messages and the Facebook chat had been tendered in evidence. Accordingly, counsel contended that, although s 44C of the Jury Directions Act provides that a judge is not required to give such a direction, nevertheless, in the particular circumstances of this case, it was necessary that the judge direct the jury that the evidence of the previous representations made by the complainant to her friends and colleague did not independently confirm her evidence. It was submitted that the judge erred in failing to give such a direction.

In response, counsel for the respondent contended that the judge did not err in not giving any such a direction to the jury. Section 44C(2) makes it plain that a judge is not required to give such a direction to the jury. In the circumstances of the case, it was obvious that the complaints made by AR, to her friends and colleague, did not provide independent support to her account. The fact that the jury discriminated in terms of its verdicts on the two charges demonstrated that it did not give improper weight to that evidence.

Section 44C(2) of the Jury Directions Act provides that a trial judge is not required to direct a jury that the evidence of a previous representation by a person does not independently confirm the victim’s evidence of the commission of an offence against that person. However, by its express terms, s 44C does not preclude or prohibit a judge, in an appropriate case, giving such a direction. There may be cases where, in the interests of ensuring that both parties have a fair trial, such a direction should be given.

In the present case, the complaint by AR to CW was of short and limited compass. As we have already noted, in one of the text messages she sent to CW, AR said that she ‘was in a bit of trouble’. In the next text, she said ‘It was an awful night but it’s over now and I made it home okay’. While both of those texts might be relevantly considered to be a complaint by AR about the conduct of the applicant, they were expressed in general terms, and lacked detail. Similarly, the message that AR sent to LB on 31 May was brief and quite unspecific.

The text messages that passed between the applicant and AR commencing at 8.20 am on 2 May 2015 were somewhat more explicit. However, and relevantly, the messages contained, in effect, the applicant’s response to the suggestion that he had misconducted himself with AR. The gravamen of the applicant’s texts to AR constituted a complaint by him that AR had acted in a very confusing manner, at one time being ‘romantic’ and at another time all of a sudden becoming angry. Thus, the tenor of the text messages passing between AR and the applicant not only contained the general complaint made by the applicant, but also AR’s response, namely, that he had difficulty comprehending the volatile changes of AR’s response while they were being intimate.

In those circumstances, we do not consider that the judge was obliged to give a direction to the jury that the text messages did not provide independent support to the evidence of AR. His Honour correctly directed the jury that those messages were relevant to the credibility of AR, and that they might show that her account of the events in question have been consistent. In the circumstances of the case, that direction was sufficient. Accordingly, we would not uphold ground 3 of the application for leave to appeal against conviction.

However, for the reasons earlier stated, we consider that the applicant has made out ground 1 and ground 1A, so that the application for leave to appeal should be granted, the appeal allowed, and the applicant’s conviction on charge 2 in the first proceeding quashed.

SECOND PROCEEDING — APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

In the second proceeding, the applicant was charged with one count of false imprisonment, on which he was acquitted, and two counts of rape, on which he was convicted. Those charges arose from an incident between the applicant and the complainant, AF, on 6 May 2015. AF had come to Australia from Colombia in August 2014 in order to advance her career. At the time of the incident, she was 36 years of age. The applicant was sentenced to a term of imprisonment of 7 years on the first charge of rape, and 7 years and 6 months’ imprisonment on the second charge of rape.

Sometime before the incident with which the charges were concerned, AF had created an online profile on a dating platform ‘OK Cupid’. The applicant also had a profile on the same platform. In about April 2015, they started to communicate with each other. In due course, they exchanged telephone numbers. In the course of their communications, the applicant offered to help AF find employment. He said that he needed to view AF’s resume, and he suggested that they meet in order to do so.

At about 10.00 pm on 6 May 2015, AF and the applicant met at a tram stop. They proceeded to the applicant’s apartment. After a preliminary conversation, the applicant tried to hug and kiss AF. The applicant asked AF to spend the night at his apartment. He grabbed her and threw her on the bed, and removed her jumper and t-shirt. When AF tried to escape by running to the door, the applicant blocked her exit, and forced her back onto the bed. Those circumstances were the subject of charge 1 (false imprisonment), on which the applicant was acquitted. The applicant then removed AF’s pants, leggings and underwear. AF requested that he use a condom. The applicant then digitally penetrated AF’s vagina. That conduct was the subject of charge 2 (rape), on which the applicant was convicted. He then, using a condom, inserted his penis into AF’s vagina. That action was the subject of charge 3 (rape), on which the applicant was also convicted.

Shortly after those events, AF got dressed and left the applicant’s apartment. In the days that followed, AF and the applicant communicated with each other by way of text messages and WhatsApp messages. During those communications, AF told the applicant that she was willing to be his girlfriend, and that she liked having sex with him. In her evidence, AF said that she disclosed the incident to a friend, Mark Rocha (‘Rocha’) who was living in Barcelona, via Skype, and showed him a bruise on her chest. On 3 June 2015, AF told a friend, Miguel Mantilla (‘Mantilla’), what had occurred. On the same day, they attended the police station, and in the days that followed she made a statement to the police.

On the first trial of the charges, the jury was unable to reach a unanimous or majority verdict, so that the jury was discharged without verdict. On the re-trial of the charges, most of the evidence (including the evidence of AF) was presented to the jury by an audio visual recording of the evidence that had been given in the first trial.

Before the empanelment of the jury, counsel for the applicant objected to the admissibility of evidence that was proposed to be adduced from Dr Sullivan, and to the admissibility of the evidence that AF had told Rocha that she had suffered a bruise during the rape. In ruling that the evidence of Dr Sullivan was admissible, the judge applied the same reasoning, that he had adopted in the ruling in relation to the evidence of Dr Sullivan that was admitted in the first proceeding (relating to the complainant AR). The judge also held that the evidence, concerning what AF told Rocha, was admissible.

The applicant seeks leave to appeal conviction on two grounds, namely:

Ground 1
A substantial miscarriage of justice arose as a result of:
(a)The erroneous admission of the evidence of Dr Sullivan; and/or
(b)inadequate direction as to the use of Dr Sullivan’s evidence.

Ground 3

The Learned Trial Judge erred in refusing to administer a direction pursuant to section 43 of the Jury Directions Act, occasioning a substantial miscarriage of justice.

It is necessary, then, to summarise the evidence at the trial that was relevant to those grounds of appeal.

Second proceeding — summary of evidence

AF gave evidence that she first made contact with the applicant, on the ‘OK Cupid’ website, in April or May 2016. After they had exchanged telephone numbers, the applicant offered to help find her a job, because he had a friend who owned a restaurant. In due course, they arranged to meet at a tram stop on St Kilda Road. After they had met, they walked to the applicant’s apartment, because the applicant told her that he could check up on her curriculum vitae on his computer in his home.

After they entered the apartment, the applicant pulled a chair next to his bed, and AF sat on it. The applicant sat on his bed. They drank some soda or coca cola, had a smoke, and talked together. The applicant asked AF, a number of times, if she wanted to be his girlfriend. At that stage AF felt uneasy, and she asked if she could use the bathroom. When she returned, they continued to talk. The applicant was sitting on the bed, but was leaning towards AF. He tried to hug and kiss AF. She permitted him to hug her, but not to kiss her. She then tried to push the applicant away. The applicant told her that he wanted her to stay at his house. He said that she could sleep on the bed, and he would sleep on the couch. AF responded that she had classes the next day, and she needed to go home to study for them.

When she had been in the bathroom, she had seen some moisturiser. So, in order to distract the applicant, she asked him for some moisturiser on her hand, and he gave her some. She said that she felt as if the applicant was ‘controlling’ all the space around her. Then, at some stage, he threw her onto the bed and removed her sweater and t-shirt. She said to him that she wanted to go to the toilet. The applicant permitted her to stand. She ran towards the door, and, while doing so, grabbed the applicant’s mobile telephone. However, the applicant retrieved the telephone, and blocked her path to the door, saying to her ‘You cannot leave naked’.

The applicant then pushed AF back onto the bed, and got on top of her. He removed her pants and underwear. AF tried to scream, but the applicant grabbed her around the throat and started to choke her. AF said that she did not have enough strength to fight him, so she gave in. She begged the applicant to use a condom. He put his fingers in her vagina (charge 2). He then put on a condom and introduced his penis into her vagina, penetrating her (charge 3). After he had done so, AF got up, put her clothes back on, and left the apartment.

After she had left the applicant’s apartment, AF realised that she did not have her spectacles with her. She returned to the applicant’s apartment and knocked on the door. At her request, the applicant returned her spectacles to her. After she left, and was walking down the road, the applicant sent her a text message that she had left her wallet in his apartment. When AF realised that she did not have her wallet with her, she returned again to the apartment, and the applicant gave her her wallet. She then left and went home.

In her evidence-in-chief, AF was taken through a number of text messages that had been passed between herself and the applicant leading up to their meeting that evening. She was then taken to further text messages that passed between them after she had left the applicant’s home. In the first such message, which she sent to the applicant at 11.36 pm, she asked him ‘Are you my boyfriend?’. In her evidence, AF said that she sent that message, because the applicant had raped her repeatedly and asked if she wanted to be his girlfriend. She said she wanted to keep in contact with him, because she wanted to be able to take revenge and get justice done ‘because of what he had done to me’.

In the messages that followed, the applicant asked AF ‘why she did not seem happy with him, and why she kept pushing him away. AF responded ‘No, is really’. Subsequently, the applicant sent her a text message ‘So are you my girlfriend now?’ to which she responded ‘If you are nice with me and good’. In a subsequent text, she responded to the applicant saying ‘Good night my bf’, with ‘bf’ standing for ‘boyfriend’. Seven minutes later, the applicant asked her ‘Did you like sex with me?’, to which she responded ‘Of course’. Two minutes later, she sent a text stating ‘Do you want again?’. In evidence, she said she wanted to keep the applicant ‘Hooked up’, because she needed to take revenge.

On the following day, at 12.41 pm the applicant sent a text to AF stating that he wanted to ‘Fuck [her]’, to which AF responded ‘Of course, I like you’.

AF stated that, as a result of what occurred, she received a bruise to her upper chest level. She said that Rocha was a person with whom she communicated on the internet. A couple of weeks after 6 May, she spoke to Rocha, and told him that she had ‘met a person and that that person wanted to have sexual access to me but I didn’t let him’. She told Rocha that that person had caused bruising to her body. Rocha responded that she should go to the police.

In her evidence, AF said that she had not gone to the police, because she had no idea where the police station might be, she did not know the emergency numbers for the police, and did not know how to deal with the police.

On 3 June 2015 Mantilla, a friend, came to AF’s house. She told him that she had met a man on a tram, and had accepted to go to his house, where he tried to rape her. In her evidence, AF said that she gave that version to Mantilla, because in Colombia it is not acceptable for people to meet on dating websites. She said she did not tell Mantilla that she had been raped, because she did not trust Mantilla that much, she felt very guilty, she felt she had put herself in that position, and that Mantilla was going to judge her. However, on the following day she met again with Mantilla and told him the truth, that the ‘guy had raped me … that I met … on a dating website’. As a result they went to the police station and reported the matter.

In cross-examination, AF agreed that she knew that ‘OK Cupid’ was a dating site. She said that she used that site in order to meet people and make friends. She agreed that, based on the applicant’s photographs and reading his profile, she thought he was reasonably attractive. However, she did not discuss with the applicant anything about having a romantic date together. Rather, they met in order that they could review her CV, which she had formulated while she was in Colombia, and make any changes that were necessary for the local market. She also said that, after they arrived at the applicant’s apartment, at no time did he want to talk about her employment prospects. Rather, he kept asking AF whether she liked him. Counsel then put to AF a series of questions which suggested that, before the applicant penetrated her, they had engaged in mutual intimacy. AF denied each of the propositions that were put to her to that effect. She said that when he digitally penetrated her vagina, he did so without her consent. At that point, she was ‘feeling totally defeated and I gave in’. She said that she begged the applicant to put on a condom ‘because I knew he was going to rape me’.

KL then said that they arrived at the apartment block. The applicant’s apartment did not have two bedrooms, but was a ‘studio apartment’. The applicant offered that KL would sleep on the bed and he would sleep on the floor. The applicant and she then spent time together in the apartment during the afternoon. In the evening, they were on the balcony together, and the applicant kissed her. They went back inside the apartment, and had consensual sexual intercourse. After that, they had a shower together. At that time, KL told the applicant she was unsure who she was in love with. She had another person who she liked or loved, and she was feeling a bit guilty about having intercourse with the applicant. She told the applicant she needed some time to think through what she really wanted.

On the same evening, the applicant and KL went out shopping. They then had dinner at a restaurant with KL’s friends. After dinner, the applicant and KL returned to the applicant’s apartment, where they watched television shows together. KL then went to sleep on the bed, and the applicant went to sleep on the floor.

On the following day, 21 May, they both awoke late in the morning. The applicant was lying on the floor. He asked KL to ‘go over’ to him, but she said she was warm in the bed. The applicant then attempted to get into the bed. They talked together on the bed, and she again said she would like to have some time to think who she liked. The applicant tried to touch her breasts, and to remove her pants. KL told him to stop and used her hand to push his hands away. She said that she needed time to think, and she did not want to have sex with him when her mind was unsure. The applicant wanted to know why she had changed her mind. When he asked to have sex one more time, she responded ‘No’. At that point, the applicant removed her pants. She was lying on her back on the bed, and the applicant was on top of her. His legs were pressing down on hers, and he was grasping her forearms near the wrists. He then penetrated her vagina with his penis. She said to him ‘No’, and said she did not want to have sex. At about that point, the applicant bit her on the lower lip. In her evidence, she said that the penetration took some time, ‘five/ten minutes’.

After that incident, KL remained in the applicant’s apartment for the remainder of the day, using the internet to find alternative accommodation. Later that night, two police members came to the door. As a consequence, she was taken to a hospital for a medical practitioner to examine her.

KL then gave evidence as to the various text and WhatsApp messages that passed between herself and the applicant, and they were tendered in evidence. On 6 May 2015, KL had asked the applicant, by text, whether he had a two bedroom apartment. The applicant responded ‘Yeah and a bathroom’.

In cross-examination, KL agreed that the ‘OK Cupid’ dating app was an application that allowed a person to meet a prospective partner. She agreed that the messages that she had exchanged with the applicant, before she came to Melbourne, were messages that she expected would be exchanged with a person who she was getting to know as a prospective partner. She agreed that she would not sleep with the applicant, until she decided that he might be a partner. KL also agreed that on the way to the applicant’s apartment, he told her that he was not in a two bedroom apartment ‘any more’. Nevertheless, she continued walking to his apartment with him. KL said that she had enough money to stay in a hotel, but she did not want to leave the apartment. She saw the applicant as someone who was a ‘possible candidate’ for being something more than a friend. She agreed that not long after they had arrived at the apartment, the applicant and she had sex together. She also agreed that although she claimed that she was raped on the next morning, she did not leave the apartment on that day. Instead, after the incident, she stayed and had breakfast with the applicant. The applicant then left for work, and she did not leave the apartment during the day. Nor did she call the police during that time. She knew that the applicant was going to return home at the end of the day. During the day she exchanged a number of messages with the applicant which were of a friendly nature.

KL agreed that when she first went to the applicant’s apartment on 20 May, not long after arriving there, they started to kiss and they engaged in consensual sex on the bed. She said that she was ‘most probably’ returning the applicant’s kisses. She confirmed that after they had sex, they had a shower together. While they did so, they were hugging and kissing each other. She confirmed that they then went shopping together, and had dinner with friends.

Counsel then asked KL about the circumstances of the alleged rape on 21 May. She agreed that, in the statement that she made to the police, she did not mention that she had pushed the applicant’s hands or arms away when he started to touch her breasts. She also agreed that she did not tell the police that, during the incident, the applicant grabbed her by the wrists or held her wrists down with his forearms. She agreed that the first time that she mentioned that fact was in her evidence-in-chief.

KL also stated that when the police attended at the apartment that evening, the applicant was lying in bed, and she was working on the laptop. After the police arrived, she became aware that they had attended to speak to the applicant. She disagreed that it was only when the police arrived that she started to have concerns about whether she wanted to continue to have a relationship with the applicant. KL was then asked questions about the texts that passed between herself and the applicant on 21 May. She said that she found him to be a ‘normal friend’. She was reluctant to stay in his apartment and she was trying to find a place to move to. She said it would have been difficult to move to a hotel.

Dr Natasha Mitik-Dineva, a legally qualified medical practitioner, gave evidence of the examination that she made of KL at the Monash Hospital at 1.25 am on 22 May. She took a history in which KL said that the offender had become aggressive and had sexually assaulted her by penile/vaginal penetration. On examination, Dr Mitik-Dineva found a purple bruise to the left side of KL’s bottom lip. She also found two small parallel scratch abrasions to the right shoulder under the collarbone, a superficial abrasion to the right lower limb, and small bruises to the upper thigh, to the knee area and just above the ankle. On the left leg, she found a cluster of small bruises around the knee and on the inner aspect of the shin. In cross-examination, she agreed that the abrasions and bruising, that she observed, would be equally consistent with consensual or non-consensual intercourse, and could also have resulted from ordinary day to day activities.

The informant, Detective Senior Constable Georgeana Jones, gave evidence that, at 9.50 pm on 21 May 2015, she attended the applicant’s apartment in company with Detective Sergeant Quirk. On arrival, Sergeant Quirk immediately led KL out of the apartment into the hallway and spoke to her. KL asked the police members if she needed to be checked out by a doctor for a disease, because the applicant had had sex with her without using a condom. When asked by the police ‘Tell me about the sex?’, she responded ‘Well last night it was okay, bit rough’, and then she said ‘This morning, though, very forceful, and I say “I don’t want to” but he just do’. She said that she was ‘just sore’ and wanted to see a doctor. Detective Jones also produced the recording of the interview that was conducted with the applicant on the following day. The applicant’s lease of his apartment was tendered through Detective Jones.

Judge’s ruling — admissibility of lease

As mentioned, before Detective Jones gave evidence, the prosecutor told the judge that he sought to tender the lease through the informant, but that counsel for the applicant objected. In doing so, the prosecutor drew the judge’s attention to the question asked of KL in cross-examination, that when they were walking to his apartment, the applicant told her that he was not in a two bedroom apartment ‘any more’.

Counsel for the applicant objected to the admissibility of the lease on the ground that it was not relevant to an issue in the case. He pointed out that notwithstanding that she was told that the apartment did not have two bedrooms, KL was happy to stay with the applicant in it, and that they engaged in consensual sexual intercourse there together. He submitted that by seeking to tender the lease, the prosecution was intending to lead evidence of ‘bad character’.

In the discussion that ensued, the judge rejected that proposition, and, on a number of occasions, he remarked that the lease was relevant to the applicant’s credibility. His Honour considered that the lease would enable the jury to assess the credibility of the denials, made by the applicant in his interview, that he had had non-consensual intercourse with KL. In the course of that discussion, the prosecutor submitted that the lease was admissible because it demonstrated the applicant’s determination to get KL to go to his apartment. He submitted that the applicant was ‘prepared to say anything to get her to come to the apartment’. The prosecutor further submitted that the lease was relevant to the applicant’s credibility.

At the conclusion of discussion, the judge stated that the evidence was admissible. His Honour said:

Well, I’m ruling that I’m going to allow it. It doesn’t really matter whether its credibility evidence. I accept the prosecution submission that its credibility evidence. It goes, in the sense, to the credibility of your client.

Counsel for the applicant then interjected asking ‘But are you ruling that it’s not character evidence?’. The judge responded ‘I don’t need to rule whether its character or not character evidence. It’s only being led by the prosecution as to credibility’.

Third proceeding — submissions in support of application for leave to appeal conviction

Junior counsel for the applicant submitted that the evidence of the lease was inadmissible, first, because the evidence was not relevant to a fact in issue, and, secondly, the admissibility of that evidence in respect of the credibility of the applicant was precluded by s 108A and s 108B of the Evidence Act.

Counsel contended that the evidence of the lease was not logically relevant to any issue in the trial. First, she contended, it was illogical for the prosecution to argue to the jury that, because the applicant had been living in the bedsit for almost three months and had misrepresented to KL that he had recently moved there, the jury should use that false representation to reject his denial that he had non-consensual sexual intercourse with KL when he was interviewed by the police. Further, it was illogical for the prosecution to rely on that false representation as evidence of the applicant’s desire or readiness to have non-consensual sex with KL.

Further, counsel noted that the judge admitted the evidence as being relevant to the credibility of the denials made by the applicant, in the police interview, that he had had non-consensual intercourse with KL. Section 108A provides that credibility evidence may only be admitted, about a person who has made a representation that has been admitted in the proceeding, if the credibility evidence could ‘substantially affect the assessment of [that] person’s credibility’. In the present case, it could not be maintained that the proof of the false representation made by the applicant to KL — concerning how long he had been in the one bedroom apartment — could substantially affect the assessment of the denials made by him to the police that he had had non-consensual sexual intercourse with KL. Further, counsel referred to s 108B as a further barrier to the admissibility of the evidence. Section 108B(2) provides that if the person who made the previous representation, and whose credibility is sought to be impugned, is the accused, the credibility evidence is not admissible unless the court gives leave. Section 108B(4) prescribes the circumstances in which a judge may give leave to admit credibility evidence about an accused person. The circumstances, prescribed by that subsection, do not apply to the present case.

Accordingly, counsel submitted that the judge erred in admitting evidence of the lease as credibility evidence. She contended that the admission of that evidence has resulted in a substantial miscarriage of justice. Apart from limited medical evidence, which provided equivocal support for the complainant’s account, the case was essentially a ‘word on word case’. In those circumstances, the unlawful attack on the applicant’s credibility, and thus on the truthfulness of the account that he gave to the police, has resulted in a substantial miscarriage of justice.

In response, counsel for the respondent submitted that the evidence as to exchanges between the applicant and KL, before they arrived at the applicant’s apartment, was relevant as part of the narrative of events, so as to enable the jury to make a realistic assessment of KL’s account. As part of that evidence, it was submitted, it was relevant for the jury to receive the evidence of the lease, in order to demonstrate the ‘determined conduct’ of the applicant in having KL stay at his apartment and engage in sexual activity with him. Thus, it was submitted, while the evidence was not admissible as credibility evidence, nevertheless it was admissible as being relevant to demonstrate the designs that the applicant had on KL and what he was prepared to do in order to satisfy those demands.

Counsel for the respondent further contended that, in any event, if the evidence was not admissible, its reception into evidence occasioned no substantial miscarriage of justice. At trial, the prosecutor and defence counsel, in their closing addresses, made only brief reference to it. The judge, in his charge, dealt with the evidence in concise terms. Counsel submitted that, in the context of the case, the evidence was a very minor piece of evidence which could not have impermissibly affected the decision made by the jury to convict the applicant.

Third proceeding — analysis and conclusion

In our view, it is clear that the judge erred in admitting the evidence of the lease on the basis that it was credibility evidence. Indeed, on this application, counsel for the respondent did not seek to defend the decision of the judge on that basis.

Section 102 of the Evidence Act provides that, by way of general rule, the credibility evidence about a witness is not admissible. Section 108A(1) provides an exception to that general rule. In summary, subsection (1) provides that if evidence of a previous representation has been admitted in a proceeding, and the person who made that representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about that person is not admissible ‘unless the evidence could substantially affect the assessment of the person’s credibility’.

As we understand it, the judge considered that the evidence of the lease was relevant to the credibility of the denials made by the applicant, in his interview with the police, that he had had non-consensual intercourse with KL, and, in particular, it was relevant to his assertion that if KL had said she did not wish to have sex, he would have stopped doing so. However, on analysis, and taking the view that would be most favourable to the prosecution, it could not be sensibly maintained that the evidence of the lease would have the capacity to ‘substantially’ affect the assessment of those denials made by the applicant in his interview. Put simply, the fact that the applicant may have lied to KL about whether he ever had a lease over a two bedroom apartment, could not substantially affect the rational assessment by a jury of the credibility of the denial by the applicant that he had had non-consensual sex with KL. We should observe that it was not contended, on behalf of the respondent, that the evidence of the lease was capable of having such an effect.

There was a further barrier, however, to the admissibility of the evidence of the lease as credibility evidence. Section 108B(2) provides that, if the person referred to in s 108A is an accused person in a criminal proceeding, the credibility evidence is not admissible unless the court gives leave. Section 108B(3) provides an exception to that rule, which is plainly not applicable to this case. Section 108B(4) provides:

The prosecution must not be given leave under subsection (2) unless evidence adduced by the accused has been admitted that —
(a)tends to prove that a witness called by the prosecution has a tendency to be untruthful; and

(b) is relevant solely or mainly to the witness’s credibility.

At no stage during the trial was evidence adduced by the accused which fulfilled the two criteria specified in s 108B(4). Accordingly, even if the evidence of the lease could substantially affect the assessment of the applicant’s credibility, s 108B precluded its admissibility, as credibility evidence.

As we have mentioned, counsel for the respondent, quite correctly, did not seek to defend the decision of the judge, to admit the evidence of the lease as credibility evidence. Rather, it was submitted that the lease was relevant as background or ‘narrative’ evidence, because it demonstrated that the applicant was prepared even to tell untruths to KL in order to induce her to stay in his apartment so that he could have sex with her, regardless of whether she was consenting or not.

In our view, that argument is unsustainable. The circumstance, that the applicant may have told an untruth to KL — namely, that he did not have a two bedroom apartment ‘any more’ — while they were walking to his apartment, or that he had previously told an untruth to her that he did have such a two bedroom apartment, might logically support an inference that he wished to induce KL to stay at his apartment in order that they could have sexual relations. However, logically such an untruth could not support or enhance the proposition that he intended to have sex with KL regardless of whether she consented. Indeed, at no time in the prosecution case, was it put that, from the outset, the applicant intended to have non-consensual sex with KL at the apartment. That proposition was not, as we understand it, part of the prosecution case. Nor, indeed, did the prosecution go to the extent of making a submission to that effect in final address.

It follows that the evidence of the lease was irrelevant, and accordingly it was wrongly admitted in the trial in the third proceeding.

The question, then, is whether the wrongful admission of the lease into evidence resulted in a substantial miscarriage of justice. On behalf of the respondent, it was contended that the evidence played, at best, a peripheral role in the trial, and that only fleeting reference was made to it in the final addresses of counsel.

In analysing the issue, whether there has been a substantial miscarriage of justice, it is important to note that, based on the evidence in the trial, the conviction of the applicant was far from inevitable. On her own evidence, KL engaged in consensual sex with the applicant on the same afternoon in which they met together. They then went out to dinner together and returned to the applicant’s apartment. During the night, KL slept in the bed and the applicant slept on the floor. On the next morning, the applicant again had sexual intercourse with KL. The critical question is whether the prosecution could prove, in those circumstances, beyond reasonable doubt, that that intercourse was non-consensual. All of the conduct engaged in by KL, in the day that followed, was inconsistent with that of a person who has been the subject of a rape. She had breakfast with the applicant. She remained in the applicant’s apartment, after he had left for work. During the day, she exchanged friendly text messages with the applicant. In cross-examination, she said that she did have the financial capacity to seek alternative accommodation, but she nevertheless remained in the apartment throughout the day, knowing that the applicant would return to it in the evening. In those circumstances, the success of the prosecution in the trial was far from guaranteed.

It was in that context that the lease was wrongly admitted into evidence. The prosecutor referred to it twice in the course of his relatively brief final address. As we have explained, as a matter of law, it was not permissible for the lease to have been admitted on the basis that it was relevant to the credibility of the denial made by the applicant that he had had intercourse with KL without her consent. There was, in our view, a realistic risk that the jury might impermissibly reason — as in fact the judge did — that the lease, in some way, affected the credibility of the applicant’s denials that the sexual intercourse that he engaged in with KL was non-consensual. It is the long experience of those involved in the criminal justice system that documentary evidence, tendered to a jury, is capable of being given undue weight, and being misused by a jury. In those circumstances, we are persuaded that the admission of the lease into evidence did result in a substantial miscarriage of justice.

It follows that the application for leave to appeal should be granted, the appeal allowed, and the conviction of the applicant in the third proceeding be quashed. In those circumstances, we do not need to consider the application for leave to appeal against sentence.

SUMMARY OF CONCLUSIONS

For the foregoing reasons, we have concluded that, in each of the three proceedings in which the applicant was convicted, the application for leave to appeal should be granted, the appeal allowed, and the convictions of the applicant, in those proceedings, quashed.

Before departing from these applications, we should also add one observation. In the first and second proceedings, the evidence given by Dr Sullivan encompassed a significant number of facets of the conduct of persons who complain of, or have been subject to, unwanted sexual activity. As we have earlier stated, it is important, in any case, that, pursuant to s 79(1) of the Evidence Act, an expert witness be only permitted to proffer an opinion that is wholly or substantially based on that expert’s training, study or experience. In the applications concerning the first and second proceedings, the issue, concerning the admissibility of Dr Sullivan’s evidence, was confined to the relevance of that evidence. The question of the qualifications of Dr Sullivan to give each aspect of that evidence was not agitated on these applications. Accordingly, we express no views on that question.

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[2019] VSCA 285

6 December 2019