Jonathon Hubbard v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2020 0062

JONATHON HUBBARD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and WEINBERG JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2020
DATE OF JUDGMENT:	26 November 2020
MEDIUM NEUTRAL CITATION	[2020] VSCA 303
JUDGMENT APPEALED FROM:	DPP v Hubbard (Unreported, County Court of Victoria, Judge Quin, 5 May 2020)

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CRIMINAL LAW – Appeal – Conviction – Rape – Whether verdict of guilt reasonably open on the evidence as a whole – Accused’s reasonable belief in consent when complainant asleep at time of sexual penetration – Whether accused knew or believed complainant was asleep at time of penetration, Pell v The Queen (2020) 94 ALJR 394 applied, Crimes Act 1958 ss 36(2)(d), 36A, 38, Criminal Procedure Act 2009 s 276(1)(a), Jury Directions Act 2015 s 47 – Leave to appeal granted – Appeal allowed.

EVIDENCE – Jury directions – Jury directions as to jury’s use of evidence of an admission – Whether judge should have given direction under s 136 to limit use of evidence of an admission – Statutory definition of ‘admission’ – Whether phone call evidence capable of containing an admission – Inadmissible propensity reasoning – Whether ‘boys will always be boys’ invites jury to engage in propensity reasoning – Whether judge should have issued direction not to engage in propensity reasoning – Judge’s direction as to jury’s use of prosecution argument; Crimes Act 1958 s 36A, Evidence Act 2008 s 136.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Morrissey SC	Brand Partners
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:

Following a jury trial in the County Court at Melbourne the applicant was convicted of a single charge of rape. He was sentenced to 4 years’ imprisonment with a minimum non-parole period of 18 months.

By notice of application for leave to appeal against conviction the applicant proposes three grounds of appeal. They are:

Ground 1 (the ‘unsafe’ ground): The verdict of the jury is unreasonable or cannot be supported by the evidence.
Ground 2 (the ‘boys will always be boys’ ground): Her Honour erred by failing to direct the jury
(a) to disregard the submission; and
(b)not to reason that it is natural for men to proceed without consent, or that men have a propensity to do so.
Ground 3:(the ‘pretext call’ ground): Her Honour erred
(a)by failing to limit the use to which the ‘pretext conversation’ could be put; [and]
(b)by failing to direct the jury in how to use the ‘pretext’ call.

Overview

The complainant, AC, and her then partner, PJ, went to the Electric Ladyland nightclub in Chapel Street, Prahran at about midnight on Friday 26 May 2017. Both had consumed some alcohol earlier in the evening. The applicant then worked as a manager for a business group that operated various nightclubs in Prahran, including Electric Ladyland. He had known the complainant socially in the club milieu for about a year.

While consuming a shot of tequila and some chardonnay, the complainant mingled with various friends including at times the applicant and at other times PJ. At about 1:00 am PJ decided to leave as he was tired. The complainant decided to remain at the club. At about 1:30 am she was invited to go to an upstairs room at the club with the applicant and three other people. It seems that all five people nasally ingested a quantity of cocaine. The complainant returned downstairs with others and remained at the bar consuming alcohol until about 5:00 am.

CCTV has captured various interchanges between the applicant and the complainant throughout the early morning at Electric Ladyland. An inordinate amount of time was spent by defence counsel at trial examining every conceivable nuance said to be evidenced by the footage. Insofar as I can tell, the footage appears to show the applicant and the complainant on friendly terms. In my view the term ‘flirtatious’, floated by the defence at trial to apply to the complainant, overstates the effect of the footage. The applicant did not press upon this Court that the footage demonstrated any more than friendly terms and stepped back from the heavy reliance placed upon the footage at trial.

At about 5:00 am, the applicant, the complainant and four other nightclubbers left the club and walked to the applicant’s nearby apartment.

Within a short time of arriving the complainant retired upstairs to sleep on the applicant’s bed. She slept for some hours.

The four other visitors left the apartment at some stage a little later in the morning. The applicant went up to his bedroom. Up until this stage there is little dispute between the applicant’s and complainant’s accounts and no dispute of any significance. I shall examine the rest of the evidence relevant to the appeal grounds whilst dealing with those grounds.

Ground 1
The verdict of the jury is unreasonable or cannot be supported by the evidence.

Section 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’) provides that this Court must allow an appeal against conviction if the appellant satisfies the Court that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In Pell v The Queen,[1] the High Court reiterated the approach that must be taken by an intermediate appellate court when addressing a ground of this type. The Court stated:

At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing ‘the unreasonableness ground’ was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt. (Footnote omitted; emphasis in original)
As their Honours observed, to say that a jury ‘must have had a doubt’ is another way of saying it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.[2]

[1](2020) 94 ALJR 394 (‘Pell’).

[2]Ibid 403 [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), quoting M v The Queen (1994) 181 CLR 487, 493, Libke v The Queen (2007) 230 CLR 559, 596–7 [113].

In the judge’s charge, her Honour correctly directed the jury that the elements of rape were:

(1) that the applicant intentionally sexually penetrated the complainant;

(2) that the complainant did not consent to sexual penetration; and

(3) that the applicant did not reasonably believe that the complainant consented to sexual penetration.

Element (1) was not in dispute at trial nor on this application. While element (2) was in dispute at trial, it is accepted by the applicant that it was open to the jury to conclude beyond reasonable doubt that this element was established. I consider this to be a sensible concession and I have independently reached the same conclusion.

Thus, this application focuses on the third element: has the applicant established that it was unreasonable or unsupported by the evidence for the jury to conclude that the applicant had no reasonable belief that the complainant consented to sexual penetration? Put another way, was the jury bound to have a reasonable doubt on this issue?

The complainant stated in evidence that she lay face down on the bed, fully clothed, and went to sleep. Her tight pants were buttoned up at the waist and zipped. She stated that she woke some time later, at about 9:00 am, to find that her pants has been pulled down to mid-thigh level. She was lying on her back and the applicant was lying on the bed next to her penetrating her vagina with two fingers. She stated that initially she thought this was her partner PJ, and she did not protest. She stated that this penetration went on for some time, perhaps up to five minutes, and, ‘it wasn’t until I opened my eyes and looked at the roof that I realised that I wasn’t in my house, and that is when I saw that it was Jonathon next to me’. The complainant stated that she pushed him away and said, ‘Fuck off’, and/or ‘What the fuck, Jono?’ He stopped touching her immediately.

The complainant stated that she pulled up her pants, buttoned them and went to the balcony to have a cigarette. She came back inside to find the applicant crying. ‘I said to him that I was asleep, and he said I didn’t know it was you’. At about this time the complainant told the applicant that she ‘felt extremely violated’.

The complainant, having realised that the battery in her phone was flat, asked the applicant to call her an Uber. He did so. The complainant subsequently made complaints to her partner, PJ, and a friend, KF, in text and Facebook messages. I shall reproduce the relevant messages and others that were said to place them into a context.

To PJ:
AC:I fell asleep alone in the bed. Fully clothed with my shoes on. I was woken to Jono touching me. I jumped up immediately and said ‘what the fuck’. I was shaking and said I feel completely violated. I left immediately. I am so disappointed in someone who I thought was my friend, who I trusted. I didn’t mean to fall asleep there and when I woke I have never felt so upset. I am also upset in how naive I was … And this is perhaps the biggest learning lesson I have ever faced. I still can’t believe it … I am so very sorry [PJ]. But as I said to you and looked you deep in the eyes I know I can marry you and commit to you knowing I have been faithful to you and that I have done nothing wrong. I was violated. My actions of trusting and crashing were wrong. I am so incredibly sorry. I love you with all my heart and meant what I said when I said I want to spend the rest of my life with you.

PJ: Touching you where
And [were] his hands down your pants
…

AC: His hands [were] in my pants
PJ: He was fingering you
…
For how long
What time do you finish
I’m beside myself. We need to talk

AC: I finish in 10 [minutes]
For how long I’m not sure. I woke to it and burst into tears.
I’m beside myself

PJ: Hurry home, drive safe and we will chat it through
Don’t hide anything from me anymore
Be prepared to say every little detail
Just drive safe. I’m not angry

AC: I’ll drive safe and see you soon… I love you xx

To KF:
KF: [PJ’s] freaking babe
AC: Just called him
I passed out haaard
like dead to the world hard

KF: That’s what I said [haha]
What did you [do]
…

KF:     What happened??
AC:     I just passed out at jonos. we all went back and I was out like a light
KF:     Haha I called it!
AC:     he’s really not happy [though]
AC:     poor thing
KF:     How did it go
AC:     He is really upset and I totally get it
KF:     Who isn’t happy? Jono or [PJ]?
AC:     [PJ]
KF:     Oh I know
AC:     im so upset
KF:     He wasn’t happy this morning
AC:     I obviously didn’t mean for this to happen at all
KF:     Yeah [I] know
AC:     I [fell] dead asleep
KF:     But jonos a friend not like you slept with him
AC:     But he is upset because I slept at jonos
yeah exactly

AC:     but he is thinking the worst [sad face emoji]
KF:     Does [PJ] live with [y]ou?
AC:     yeah honey
KF:     Jono [didn’t] try anything did [h]e? …
AC:     He did
I have never felt so violated

AC:     [I] just told [PJ] then
AC:     I woke up to him touching me
KF:     [Wow]
What the fuck
…

KF: Where did he touch you
Did you say [something]??
What did [PJ] say?
Do you want me to come over in a couple hours

KF: How did it go?
AC:So I think [PJ] and I are going to work this out… I am still in shock and can’t deal.

The complainant was cross-examined over three and a half days. The vast bulk of this questioning concerned matters peripheral to the impugned events. I do not propose to recite the effect of that evidence. Before referring to the complainant’s relevant answers to cross-examination it is convenient to observe that the applicant’s defence, subsequently given in evidence, was that he believed at the time of digital penetration that the applicant was consenting, and he offered several indications given to him by the complainant said to support that belief. These included her leaning into him, shifting her weight and moaning upon her breast being touched, heavy breathing and similar. He stated that she opened her legs, facilitated the lowering of her tight jeans and moaned further upon external and internal touching of her vagina. These indications were put to the complainant in cross-examination. I shall reproduce some of the exchanges relied upon by the applicant.

[Defence counsel]:     Jonathon Hubbard was therefore, the next morning, on your right-hand side?---I woke up to him on my right-hand side, yes.
You felt him put his arm across your stomach area?---I woke up with my pants down my mid-thigh and [his] fingers inside my vagina
And you say that his fingers were in your — inside your vagina for about five minutes before you realised what was going on. Is that right?---I couldn’t give you a timeframe of how long it was. Sorry, your Honour, could I please have a break?
…
[Defence counsel]:     Is this your position, that you say that you woke up to the sensation of fingers inside you?---Quite aggressively, yes.
And that was going on for about five minutes before you called a halt; is that right?
Her Honour:   She said she can’t give a timeframe.
[Defence counsel]:     I am asking---I can’t give a timeframe. I was asleep and I woke up to this feeling. It happened for some time, and it wasn’t until I opened my eyes and I looked at the roof that I realised I wasn’t in my house, and that is when I saw that it was Jonathon next to me.
You thought [PJ] was touching you intimately; is that right?---I did think that. I was like ‘Why is [PJ] so heavy-handed today?’ because I thought I was home, and it wasn’t until I saw the roof that I realised that I wasn’t back home.
This is at p.41, Your Honour. This is a question directed to you, directed to the topic of how long this experience was going on. You gave evidence of pushing Jonno off you?---Correct.
This was said to you: ‘That, on your account’— that is, pushing him off — ‘That, on your account, happened within moments?’ Answer: ‘Of — yeah, it was definitely — it would have been’ — ‘it would have’. Then this was said: ‘Was it a second or something?’ and then you said ‘No, not a second at all. It was about five — five minutes before I realised what was happening.’ Were you asked that question and did you give that answer?---I did give that answer.
Was that a correct answer?---Yes, from my memory in that particular instance, yes.
…
[Defence counsel]:     And then in response to that you say ‘Sorry’, and something that’s indistinct. Then this was put to you, following on: ‘Fingers touching your genital area for about five minutes before you asked Jonno to stop. Yes?’ And your response was: ‘As you mentioned, I thought it was [PJ] at that point in time.’---I said that just before, yes.
And was that accurate evidence?---Correct.
Yes. ‘But eventually’ — this is next put to you — ‘but eventually, you say you opened your eyes after about five minutes of this intimate touching, and then saw the ceiling.[’] And you said — and this is your response: ‘And then, yeah, excuse my language, but I said, “What the fuck, Jonno,” and I pushed.’

---Correct.
Was that a — is that accurate evidence?---Correct.
And then, this was put to you: ‘And he stopped immediately.’ You said that?---I did.
…
[Defence counsel]:     Right … I’m putting to you Jonathon Hubbard put his right arm across your waist area, and that was the first contact he made with you?---He had his fingers inside of me. That is how I woke up. So I disagree with your statement being that’s the first contact.
…
[Defence counsel]:     And he was caressing your stomach area, that area around your waist?---No, that is not how I woke up. I woke up with his fingers inside of me.
And that you nestled into — your head into — or nuzzled or nestled your head into his right shoulder area?---I completely disagree with that.
Do you say you were still on your stomach, because that’s the way you always sleep?---I was on my back, when this happened.
Do you know how you got to your back?---No.
Jonathon Hubbard was caressing your waist and stomach area, and moving his hand over the top of your clothing, up to your breasts?---No.
And caressed your breast?---Not that I remember that.
With you nuzzling into him, you responded by soft moaning sounds, indicating that you were taking pleasure in that touching? That was is experience, I’m putting to you?---(No audible response).
Her Honour:   Well, how would she know what his experience was? Does she say that she did that?
[Defence counsel]:     Do you agree that he did that, or do you not know?---No. No, that is not how I woke up. I was asleep. And I woke up to this. So if you’re trying to suggest that it was consensual then you’re very wrong.
That he then slid his hand up underneath your top, touching your stomach area?---I don’t recall this.
And moved his hands up towards your breast, but over your bra?---I don’t recall that. His hands were not there, they were — as I said, inside of me.
You responded to that touching, you shifted your weight in bed, and you were pushing your body more firmly against him.
Her Honour:   What touching?
[Defence counsel]:     The touching that I just described.
Her Honour:   On her stomach and over her breast?
[Defence counsel]:     Yes.
Her Honour:   Over her bra?
[Defence counsel]:     Over her bra, yes?---I disagree.
And you were making positive sounds, indicating some sexual arousal?---That is absolutely incorrect. I was in pain actually. It was not comfortable.
Mr Hubbard moved his hands down under your top, from under your top, and then ran his hands on the outside of your trousers, up and down your knee area and inner thigh?---That is not how I woke up. He may well have done this while I was asleep. I woke up with my pants down my mid-thigh, and his fingers inside of my vagina.
He moved — he touched you in the crotch area, over your pants?---While I was asleep.
You continued to show pleasure in that — in response to that touching?---I completely disagree with you there, sir.
He then attempted to slide his hand under your — the top of your pants, the waistband area of your pants?---(No audible response).
But he was unable to do so?---I disagree.
And he was unable to do so, because your pants were so tight. So---I extremely disagree with this.
Yes. Now in order to---If my pants were so tight, they were ripped anyway. So therefore they would have been loose for him to be able to move them down, towards my mid-thigh.
In order to undo your pants, you would agree, that the waistband had to be undone in order to move your pants down to mid-thigh?---Absolutely.
Yes. Now in order to undo your pants, the waistband of your pants, that is, it would be necessary, first, to unfasten a hook-clip that was on your waistband. Correct?---Yes.
Then it would be necessary to undo a button that was also on your waistband? Correct?---Correct.
Then after that, it would be necessary to unzip the fly. Correct?---Correct.
Jonathon Hubbard did all of those things?---He did.
He unclipped your clip, he unbuttoned the button, he pulled down the zip. Do you recall that being done?---Well how else would they — my pants end up halfway down my thighs?

I’m putting to you that you had to be aware that he was doing that?---I woke up to his fingers inside of me. I’ve already said that. I can’t tell you that he — that I remember him pulling my pants down because I was asleep.
There was a bit of mucking around involved in that process as he endeavoured to do — perform those steps, and he did so?---I disagree.
But you didn’t---Not to my — not to my memory.
You say you didn’t perform those tasks?---Absolutely not.
You were awake while he was doing that?---No I wasn’t.
Her Honour: Doing what?
[Defence counsel]: Unfastening your trousers?---No I was not. I woke up in pain with him inside me.
You were moving your body during the time that he was unfastening your trousers and pulling down the zip?---Says who?
I’m just putting to you that that was the fact?---That’s — that’s definitely not my fact.
After undoing your pants, Mr Hubbard then slid his hand down the front of your pants towards your genital area. Do you recall that occurring?---I woke up with my pants at my mid-thigh and his fingers inside of me. All this build up, I am not aware of.
He got his hand, moved to an area near your pubic bone area and his fingers were — reached down to the area of your pubic bone. Do you recall that happening?---I recall his fingers inside of me and my pants at my mid-thigh.
Your pants were so tight that he, in order to move his hand further down, arched his hand to try to move your pants further down, but that was unsuccessful in moving your pants further down?---Well, I disagree because that’s how I woke up.
You responded by shifting your weight. You raised up your knees and lifted your bottom of the bed?---I highly disagree with this.
And you assisted him in pushing your pants down. You see, these are pants that are so tight on you that they split when you’re descending stairs, and you say you did not have any sense of your — you did not have any---So that’s what you’re suggesting. That because my — because my pants were tight, that made it okay.
You did not---Is that what you’re suggesting?
You did not have any sense of him pulling down those pants?---I was asleep.
Correction. You pulling down or assisting him to move your pants down?---I was asleep.
Your pants could not have been moved down to your mid-thigh level given how tight they were without your assistance?---Well, then, I’ll put it to you this way. How could I pull them up if they were so tight?
You were on your back at this time?---I was on my back, yes.
With your bottom pressing obviously against the mattress?---I was asleep when all of this happened. If my pants were so tight for him not to take them down, how were they so tight for me not to be able to pull them up and put them on in the first place? That’s not an excuse.
You put your hands on the waistband and moved the pants down around your knee, thigh area?---No.
Jonathon Hubbard then inserted a finger into your vagina?---Two fingers.
Followed shortly afterward by a second finger into your vagina?---Thank you. That is what I woke up to.
Throughout his time leading up to that point, you were awake and participating in the way that I’ve described, both through your responses of heavy breathing, plus assisting to have —move your pants down by pulling them with two hands?---No. I highly— I highly disagree with this.
You’re wiggling your bottom in order to assist — enable you to get the pants down?---I highly disagree.
With your bottom lifted off the mattress?---I highly disagree.
This might have occurred — I withdraw that. Shortly after Mr Hubbard had inserted two fingers into your vagina, you reached up and you took hold of the pillow, and you put it over your face?---I disagree. I have no memory of that.
And you were making moaning and pleasure type sounds when you did that?---I — I highly disagree with you. It was not an enjoyable experience. It was actually quite painful.
You were moving your thighs against — your body, you were pressing forward as his fingers were in your — inside your vagina?---No.
Showing pleasure and participation?---No. No, that is incorrect.
A short time after this touching with two fingers inside you, you said, ‘Stop’. Do you agree with that?---No. I turned to him and said, ‘What the fuck, Jonno’, and get off me and I pushed him off. That was the first communication in this incident.

On 29 May 2017 the complainant went to the police. This was days after the alleged rape. At police suggestion she engaged in what is commonly described as a ‘pretext call’. It is necessary to set out the full transcript of the call.

[AC]:My full name is [AC]. Today is the 2^nd day of June 2017. The time is 9am. I am currently at St Kilda Police Station and I am the person who will activate this recording device. I activate this device freely and without any inducement or coercion from any other person. The telephone number that I’m about to dial is […] and I expect to speak to John (sic) Hubbard.

[AC]:             Hello.
Mr Hubbard: Hello.
[AC]:             Hi, is this Jono?
Mr Hubbard: It is, yes.
[AC]:             Hey, Jono, it’s [AC], how are you?
Mr Hubbard: Hey, how are you doing?
[AC]:Yeah, not so good. I guess I just wanted to give you a call and talk about what happened last ---

Mr Hubbard: Yep.
[AC]:--- last Friday. It’s obviously been on my mind and it’s really upsetting me.

Mr Hubbard: Yeah, me too, yeah.
[AC]:I guess I just, you know, want to know, I guess, why — why you did that when I was asleep.
Mr Hubbard: Yeah, I don’t — I don’t even really know, [AC]. I’m — I don’t know what really happened. I was sort of — I was kind of just like in a — in a sort of a drunken weird state and didn’t — I don’t think I really, like, knew exactly what I was doing myself.

[AC]: Yeah.
Mr Hubbard: I just remember, like, I was downstairs on the couch and, I passed out on the couch and then apparently just jumped into bed and then — and then the next thing … and then passed out again, and I’ve … I don’t know, just, like, woke up, and, yeah, I don’t know, I just don’t really know what — what sort of — what I was doing.

[AC]: Yeah.
Mr Hubbard: I wasn’t — I don’t think that I, like, was, you know, was intentionally trying to — trying to do that, I just, I — I — I don’t know, it’s really hard to explain, I ---

[AC]: Did you do anything else to me that I don’t know about?
Mr Hubbard: No, not — no, I didn’t, no.
[AC]:‘Cause I just remember you fingering me and then that’s when I, like, lost my shit.

Mr Hubbard: Yeah.
[AC]:             So did — did you do anything else?
Mr Hubbard: No, I didn’t, no, no.
[AC]:             So you just did that?
Mr Hubbard: Yeah, yeah.
[AC]:             Yeah.
Mr Hubbard: I think I, like — and I — I’d had, like, some sort of weird dream.

[AC]: Mm’hm.
Mr Hubbard: And then — and when — and when I sort of woke up, like, and — and — and got handsie with you I, like, I don’t know, I don’t think I even, like, knew that it was — I didn’t even think that it was you.

[AC]:             Mm’hm.
Mr Hubbard: But, yeah, nothing — I didn’t do anything else.
[AC]:             OK. Yeah, I’m pretty upset about it all.
Mr Hubbard: Yeah, I can imagine, so — so am I.
[AC]:             Mm’hm.
Mr Hubbard: You know it’s — it’s just horrible and I’m — and I’m — and I’m so … fucken … devastated and — and sorry and ---

[AC]: Yep.
Mr Hubbard: --- I just don’t know — I don’t know what to say.
[AC]: Yeah. Yeah, I’m a bit of a mess to be honest.
Mr Hubbard: Yeah.
[AC]:And it wasn’t really nice to wake up to, I’m still really shaky about it all too.

Mr Hubbard: Yep.
[AC]:Anyway, I guess I just wanted to call and make sure that there was nothing else that was — that was — all that happened ‘cause, like, maybe … whatnot, so ---

Mr Hubbard: Yeah, yeah.
[AC]:             Yep. I might go, though.
Mr Hubbard: I’m sorry, [AC].
[AC]:             That’s alright. I’ll speak to you later, I guess.
Mr Hubbard: Yeah, all right.
[AC]:             Thanks for answering my call.
Mr Hubbard: All right, bye.
[AC]:             Bye-bye.
END OF CALL
[AC]:The person I spoke to was Jono Hubbard. The time is now 9.05 and I will conclude this recording.

END OF RECORDING

The balance of the prosecution case consisted of PJ, other witnesses to peripheral lead-up events, uncontested police evidence and innocuous medical evidence. In cross-examination the doctor told the Court that, upon inquiry, the complainant had denied post-offence sexual intercourse. This denial was in fact incorrect.

The applicant gave evidence. He stated that he believed that the complainant had shown a romantic interest in him prior to the impugned event. He stated that he perceived that attraction both at the club and at the flat. He stated that when he went up to the bedroom the complainant was asleep in his double bed. He got into the bed and went to sleep. He woke at around 8:30–9:00 am. The complainant was asleep on her back. He rolled over and put his arm around the complainant and rested his head on her shoulder. She moved back into him and he said that he then caressed her breast outside her clothes. In response to this touching, he said the complainant made soft moaning noises without words being exchanged. He moved his hands under her top and she continued to moan as her breathing became heavier. He said he touched her inner leg, and he formed a belief that she was responding positively to his touching and was consenting to it. He stated that he undid the complainant’s tight pants and put his hand inside them. He stated that the complainant slid her pants down to her mid-leg and that he assisted her with this. He said that he started to touch the complainant’s vagina, and she made more moaning noises, which indicated to him that she found the touching pleasurable. This continued for a period of time and the applicant believed that the complainant was consenting to this touching. After a period of time the complainant sat up in bed and said stop. He immediately removed his fingers from her vagina. The complainant said she had thought he was PJ, retrieved her possessions and went downstairs.

The applicant was challenged strongly in cross-examination, including a suggestion that he had waited until the prosecution had served the brief of materials upon him and then tailored his account to meet the prosecution case.

The applicant denied this, and also denied that he knew the complainant was asleep when he commenced to digitally penetrate her. The cross-examination about the pretext call occupied several pages of transcript. This passage of the pretext call was put to the applicant:

[AC]:I guess I just, you know, want to know, I guess, why — why you did that when I was asleep.
Mr Hubbard: Yeah, I don’t — I don’t even really know, [AC]. I’m — I don’t know what really happened.

The applicant was cross-examined on this particular part of the exchange as follows.

[Prosecution counsel]: And your belief was, rightly or wrongly, that [PJ] was somewhere nearby during this telephone conversation?---Yes, that’s right.
Yes? You’ve heard the evidence from the police officer that there was no loudspeaker used in that conversation. You’ve heard that, haven’t you?---Yes.
In any event, your belief, you say, was that he was present somewhere?---Yes, that’s right.
And that, was it your belief that he might be a bit behind this phone call?---Yes, I thought the reason for the phone call was for the benefit of [PJ].
Yes. Yes. One of the first — would you be assisted by having the transcript of this conversation in front of you or don’t you care?---Ah, yes, that would assist. Yep.
Perhaps the witness could be shown the — it’s in the exhibit book, I think at the last section.
Sorry. If you turn to p.2?---Yes.
The top of the page, she says to you, ‘I guess I just, you know, want to know, I guess, why you did that when I was asleep.’ That’s what she says to you?---Yes.
Did you take her ‘that’ to be the fingering?---Um, I wasn’t exactly sure what she was referring to at that point.
What did you think she could be referring to?---Well, I wasn’t sure what she had or hadn’t said to [PJ], um, and I — yeah, I wasn’t sure exactly what specifically she was referring to at that point.
But be that as it may, what did you think that meant? She’s talking to you. You’re trying to understand what she’s saying? You must have a — when she said, ‘Why did you’, in tearful tones, as we’ve heard, or let’s go back to p.1, the bottom of p.1. ‘What happened last Friday, it’s obviously been on my mind and it’s really upsetting me. I guess I just, you know, want to know, I guess why — why you did that when I was asleep.’ What did you think the ‘that’ meant?---Well, when she’s saying that why I did that when — ‘why you did that when I was asleep’, this is the point where I thought that the reason for the conversation on the phone, the reason for what she was saying was that she was attempting to, um, save her relationship with [PJ] and she’s saying and doing what she has to — to try and make sure that the relationship is — is sound.
But I’ve asked you a direct question. I haven’t asked you to keep regurgitating your reasons for answering the way you do. I’ve asked you, what did you think the ‘that’ was a reference to?---Nothing, because nothing — I didn’t do anything to her when she was asleep.
But you knew you fingered her, to use the expression?---Yes, when she was awake.
Yes, but I’m asking you not about the asleep bit, but the ‘that’ bit. What was the ‘that’?---I’m not sure what she’s referring to.
You’re saying you didn’t realise she’s referring to fingering which she’s put a stop to? You’re saying you didn’t — which she’s put a sudden unexpected stop to, on your version. Are you saying you didn’t think that meant the fingering?---I didn’t know and — or think at that point what she was specifically referring to.
But it must have occurred to you that [was] referring to the fingering?---As I’ve just said, I wasn’t sure at that point exactly what she was referring to.
Your evidence is that when you did finger her, she was not asleep. That’s your evidence, isn’t it?---Yes, that’s correct.
Right. And you knew that you had penetrated her with your finger, didn’t you?---Yes.
And what you’ve answered is, ‘I don’t even really know, [AC]. I don’t know what really happened.’ That’s your answer?---Yes.
You didn’t say to her, ‘You were not asleep’, did you?---No.
No, and you said something about being in a sort of drunken, weird state. ‘I don’t think I really, like, know exactly what I was doing myself’?---Yes.
So you must have realised she’s talking about the fingering, mustn’t you?---I didn’t know at that point specifically what she was talking about. I was just trying to get across that I didn’t know what was happening either because I wasn’t a hundred per cent sure what she had or hadn’t said at that point.
Yes?---I wasn’t trying to contradict anything.
No, no, and you weren’t trying to contradict that she was asleep when you did something?---Yes, I wasn’t---
You didn’t contradict that, did you?---No, I didn’t, no.
No, and you knew that — and you didn’t query her in any way, ‘I was not asleep’ (sic), or any words of that effect. Correct?---No, I — no, I didn’t.
Then later on down that same page 2, ‘I don’t think, like, was, you know, was intentionally trying to do that, and it’s hard to explain’, et cetera. So you’ve used the word ‘that’, haven’t you?---Yes.
Well, you were referring to the fingering, weren’t you? That was the ‘that’?---Ah, no, I was just trying to keep it very broad because, as I said, I wasn’t sure exactly what she was referring to or what she had or hadn’t said at that point.
But you said you didn’t intend whatever it was, you didn’t intend to do that. What did you mean?---I was trying to get across the point to [PJ] who I believed to be listening to the phone call that, um, that I didn’t, you know, that she’s saying that — ah, she’s trying to get back from any blame that she’s got in the part by saying that, ‘did that while — when I was asleep’, whatever it is she’s referring to, I was trying to get the point across to [PJ] that I wasn’t, you know, intentionally trying it on with his missus.
Yes, but ‘trying to do that’. What was the ‘that’ you didn’t intend?---At that point, I wasn’t sure specifically of what she was referring to, so I was just going along with what she was saying and just trying to keep it as open as possible to not contradict anything that she had or hadn’t said.
Well, you’re contradicting it because you said you didn’t have an intention and you were — ‘to do that’, and that you were in a drunken, weird state, and you — et cetera. You were contradicting, weren’t you?---Um, I don’t believe so, no.
Yes. You were admitting that she was asleep when you fingered her?---No, ‘cause she wasn’t.
No, that’s what you’re saying now, but at the time you’re speaking to her on 2 June 2017, you were admitting to her that you had done that, namely fingering, while she was asleep, weren’t you?---No.
That’s what you were prepared to do, wasn’t it?---No.
Yes?---She’s not said anywhere in there about fingering up to this point.
Yes?---As I said, I didn’t know exactly what specifically she was talking about.
Well?---I was just going along with what — what her narrative was.
But she didn’t — you knew she wasn’t referring to being touched on the breast, didn’t you?---I didn’t know what she was referring to.
You didn’t know that she wasn’t — she was tearful. She was tearful and upset, and to use her words, ‘It’s been — it’s been upsetting me, it’s been really upsetting me.’ She started off with that tearfully, correct? Correct? Sorry, yes?---Yes, sorry, I was just having a sip of water.
Yes, about what happened last Friday. Are you saying on your oath that you thought that that might — could easily refer to being touched on her waist, or touched on her breast?---Yes, because I didn’t know what she had or had not said to [PJ], so I wasn’t sure what she was referring to in that point.
But it doesn’t matter what she said to [PJ]. She’s talking to you, she’s referring to what had upset her when she was asleep. The only real sexual thing you did, I know a bit of caressing and that. The serious sexual event was the fingering, wasn’t it?---Ah, I mean, there was, like ---
No, please. The serious sexual event was the fingering, wasn’t it?---Yes.
And you must have known that that’s what she was referring to about when she was asleep. You must have known that, I suggest?---Not specifically at that point, no.
Not specifically. And then when you said, ‘I wasn’t intentionally trying to do that’, you were referring to the fingering, weren’t you?---I was just trying to keep it very broad and open as ---
Well maybe you were. But you were referring to the fingering, weren’t you?

---No. I’m — I’ve just answered the question, I was trying to keep it broad and open so I wasn’t specifically referring to the fingering.
And when she said, ‘Did you do anything else to me that I don’t know about’, you knew she meant something other than fingering, didn’t you? Whatever the reasons you thought she was saying it — I’m not asking about that. You knew she was referring to the fingering, don’t (sic) you?---Yes.
So you were quite prepared in that interview to go along with her in relation to the allegation that you had fingered her while she was asleep, to an allegation that you fingered her while she was asleep. You were going along with her, weren’t you?---Yes.
For the reasons you’re saying?---Yes.
But you had thought they’d broken up, hadn’t you? You’ve told us that. You thought they broke up when she came up to you and said, ‘He’s gone, I’m staying.’ You thought that meant she’d broken up with him, didn’t you?---Yes.
So when you spoke to her on the phone you thought they’d broken up?---No, that’s not correct.
What, you thought they were back together?---Well when she was in the apartment and saying that um, she thought that I was [PJ] and that she was at home with [PJ], it dawned on me that there was still a lot more going on in the relationship than I was aware of.

Okay?---So I believed that that’s her reasoning for saying and doing what she was doing, because there was something still there.
Okay, this woman, you have gone along with the fact that she was asleep, correct? When whatever event happened, sexual event, she was asleep. You’ve gone along with that, haven’t you?---I’ve gone along with her narrative, yes.
Yes, and you went along with it because you knew it was the truth, didn’t you?---No, that’s not what happened.
Well I’m not asking about what happened, I’m asking you about you going along with it. You went along with it and your reasons for going along with it. You went along with it because you knew it was the truth?---No, that’s not correct.
Well you don’t want to go — you thought he was — would you be prepared to go along with her false narrative, and admit to a serious sexual crime?---I wasn’t thinking about it in those terms being a serious sexual crime. I thought that she was just simply trying to um, fix the relationship with [PJ], and I didn’t want to get in the way of that, so I went along with what she was saying.

Thus the applicant admitted in the pretext call to digitally penetrating the complainant but maintained in evidence that he went along with the complainant’s narrative on this issue because, in effect, he did not wish to inflame the situation further.

Reasonable belief in consent

The judge directed the jury correctly and succinctly about the third element of the offence. In summary form, she directed the jury as follows.

·The prosecution must prove beyond reasonable doubt that, at the time of sexual penetration, the accused did not reasonably believe the complainant was consenting.
·This third element will be met if the prosecution prove beyond reasonable doubt one of the following circumstances:
(a)the accused believed the complainant was not consenting; or
(b)the accused gave no thought to whether the complainant was consenting; or
(c)even if the accused may have believed that the complainant was consenting, this belief was not reasonable in the circumstances.[3]

·If the jury found that the complainant was asleep, the jury must then consider whether the accused knew or believed she was asleep: ‘If you find that [the accused] knew or believed that [the complainant] was asleep, that is enough to show that [the accused] did not reasonably believe [she] was consenting, and you may find this element proved.’
·A belief will be reasonable if there are reasonable grounds for a person in the position of the accused to hold that belief.
·The jury must consider all the circumstances in deciding whether a belief in consent was reasonable and must consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent.
·This element, like all elements, must be proved by the prosecution beyond reasonable doubt.

[3]See Jury Directions Act 2015 s 47; Crimes Act 1958 ss 36–36A

These directions were undisputed on this appeal. They are derived from ss 36, 36A and 38 of the Crimes Act 1958 (‘Crimes Act’) and from s 47 of the Jury Directions Act 2015 (‘Jury Directions Act’).

In oral argument Mr Morrissey SC for the applicant on this application accepted that if the evidence persuaded the jury or this Court that the applicant knew or believed that the complainant was asleep at the time of digital penetration then that would put an end to any ‘defence’ of reasonable belief in consent.

Mr Morrissey contended that the jury must have had a doubt about whether the applicant knew or believed the complainant was asleep at the time of penetration, and on all the evidence the jury, acting properly, could not have been satisfied of this element to the requisite standard. He invited this Court, in performing its independent evaluation of the evidence, to reach this conclusion.

Mr McWilliams for the respondent submitted that it was entirely open to the jury to accept the complainant’s evidence that she was asleep at the time of penetration and it was the rough penetration that in fact woke her up. Once the jury reached this conclusion, they could not find that the applicant had entertained a reasonable belief in consent and the jury were compelled to conclude that the prosecution had proved this element.

Analysis
Ground 1

The applicant digitally penetrated the complainant’s vagina over a sustained period of up to five minutes. There was no dispute on this issue at trial and the jury could not properly have concluded otherwise.

It is also undisputed that the jury could properly have concluded that the complainant did not consent to this digital penetration. The complainant’s evidence was cogent and credible.

The elements of the charge of rape are set out at para 10 of these reasons. The central issue at trial, and on this application, was whether the prosecution had proved to the criminal standard the third element of rape — that the applicant did not reasonably believe that the complainant was consenting to sexual penetration.

Normally, proof of the applicant’s state of mind as it relates to an alleged criminal act will be by way of inference. If there is a reasonable hypothesis consistent with innocence, the prosecution will have failed to meet its burden of proof regarding this element.[4]
[4]Pell (2020) 94 ALJR 394, 403 [46].

The applicant relied upon what he claimed to have been a reasonable, albeit possibly mistaken, belief that the complainant was consenting to his act of digital penetration, at least at its commencement. This asserted belief was no answer to the charge of rape if he realised at the moment of penetration that the complainant was, in the relevant sense, ‘asleep’.

Section 36(2)(d) of the Crimes Act provides that a victim is deemed not to have consented to an act of sexual penetration if he or she happened to be ‘asleep’ at the moment that the act of penetration took place. The term ‘asleep’ is, perhaps unsurprisingly, not defined in the Act.

Section 36A(1) provides that the determination of whether there was a reasonable belief on the part of the accused that the victim was consenting to an act of sexual penetration ‘depends on the circumstances’. Section 36A(2) provides that those circumstances include any steps that an accused took to ‘find out whether the other person consent[ed] … to the act’.

Importantly, in the present context, s 47(3)(a) of the Jury Directions Act provides that a judge, in directing a jury as to the elements of a sexual offence must, if so requested or if the judge considers there are substantial and compelling reasons to do so, make it clear that

if the jury concludes that the accused knew or believed that a circumstance referred to in section 36 of the Crimes Act 1958 existed in relation to a person, that knowledge or belief is enough to show that the accused did not reasonably believe that the person was consenting to the act[.]

Thus the legislature has, by virtue of the interaction between these provisions, established that an accused who sexually penetrates another person who happens to be asleep at the moment of penetration, and is known or believed by the accused to be so, cannot rely on what is sometimes (misleadingly) known as the ‘defence’ of reasonable belief in consent. As I have observed, senior counsel for the applicant on this application accepted that, if it was open to the jury to conclude that the complainant was ‘asleep’, and that the applicant knew or believed this, at the moment of penetration, then this ground of appeal would fail.

As I have also observed, the complainant’s evidence was cogent and credible. There was and is no reason to disbelieve it. The consistent theme of that evidence was that she woke up ‘with [the applicant’s] fingers inside … [her]’. The jury must have accepted this evidence; however in the unusual circumstances of this case, this acceptance does not demand rejection of the applicant’s account of events said to have occurred before the moment of penetration. Whilst the complainant consistently and firmly rejected the propositions that became the applicant’s evidence — namely that before penetration he had placed his arm around the complainant’s waist and his head on her shoulder and caressed her breast, and that she had responded by moaning, moving her legs towards him, ‘nuzzling into’ him and assisting in the lowering of her tight pants by arching her back — her evidence of events commenced at the time that she first perceived that she was being digitally penetrated. She could not give direct evidence of the length of time for which the penetration had occurred before she became aware of it, nor what events had occurred prior to her becoming sufficiently awake to have awareness and therefore recall of surrounding events. Thus, unlike many cases of this sort, the complainant’s evidence, taken at its highest, does not strictly contradict the evidence the applicant gave about the events leading up to penetration, nor the related proposition as to his belief in consent.

The state of being asleep is not binary in nature. It is a simple and well enough understood state of which judicial notice can be taken. It is plain that, as the normal English term ‘asleep’ is understood, there are various stages of sleep, ranging from deep sleep to something just short of full wakefulness. On this application, the applicant’s case is that there is a realistic possibility that the complainant participated in all these pre-penetration activities, without any subsequent recall, and thus gave the impression of consent to the applicant’s advances.

There is other evidence that bears upon the proposition that the complainant only slowly emerged from a state of full sleep. Her previous evening and early morning, until perhaps 5:00 am, had involved drinking and cocaine use. The impugned events took place only a few hours later. More significantly, on her own account, after perceiving that she was being digitally penetrated, the complainant took some time, perhaps as much as five minutes, to fully appreciate her circumstances — that is, where she was and whom she was with.

On the basis of the evidence I have reviewed, I consider that there is a reasonable possibility that the complainant carried out the activities attributed to her by the applicant while not sufficiently awake to recall doing so. Assuming this to be the case, without more, then I consider there is also a reasonable possibility that the applicant reasonably believed that the complainant was awake and consenting to his advances.

The ‘pretext call’

The respondent contends that there is more and that the pretext call set out in these reasons at para 17 contains an admission by the applicant that he knew at the time that he penetrated her that the complainant was asleep. As has been explained, if the applicant knew this at the moment of penetration it would be well open to the jury to be satisfied of the third element of the offence.

It will be recalled that the applicant was asked by the complainant ‘why [he] did that when [she] was asleep’.[5] His responses were highly equivocal:

Yeah, I don’t — I don’t even really know, [AC]. I’m — I don’t know what really happened. I was sort of — I was kind of just like in a — in a sort of a drunken weird state and didn’t — I don’t think I really, like, knew exactly what I was doing myself.

And shortly thereafter: ‘I don’t know, just, like, woke up, and, yeah, I don’t know, I just don’t really know what — what sort of — what I was doing.’ And then: ‘I wasn’t — I don’t think that I, like, was, you know, was intentionally trying to — trying to do that, I just, I — I — I don’t know, it’s really hard to explain, I …’. Later he said it was like ‘a weird dream’, and then, ‘when I sort of woke up, like, and — and — and got handsie with you I, like, I don’t know, I don’t think I even, like, knew that it was — I didn’t even think that it was you.’

[5]See above para 17.

The prosecutor, at trial, relied heavily on this part of the call and repeatedly put to the applicant that his response amounted to an acceptance of the premise of the question, that he had done ‘that’ with the knowledge that the complainant was asleep at the time. In his final address the prosecutor contended that the pretext call constituted an admission to all the elements of the offence. For my part, I have grave doubts that the pretext call is capable of conveying the meaning that the applicant knew, at the time of penetration, that the complainant was asleep. The Dictionary of the Evidence Act 2008 (‘Evidence Act’) defines an admission as follows:

admission means a previous representation that is—
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b)adverse to the person’s interest in the outcome of the proceeding.

Thus for present purposes an admission is a previous representation made by the accused which is adverse to his interest in achieving a verdict of not guilty to the charged offence and/or to a lesser alternative offence.[6]
[6]Haddara v The Queen [2014] VSCA 100, [125] (Priest JA).

In my view, it is sufficiently clear by his answers that the applicant was admitting digital penetration of the complainant — for example, he talks about when he ‘got handsie’ with the complainant, and denies doing anything more than ‘fingering’ her.

I have considerable doubt as to whether the pretext call contains a representation by the applicant that he knew the complainant was asleep when he penetrated her. It may be that the applicant by his vague responses was admitting no more than that he was responsible for digital penetration; he may possibly have been admitting that he now (ie at the time of the call) accepted that the complainant was relevantly asleep; or he may possibly have been admitting that at the time of penetration he knew she was asleep. The fact is, the pretext call allowed for multiple interpretations as to the conduct and state of knowledge that the applicant was admitting to. Nothing in the call itself or that emerged in cross-examination made the interpretation that the applicant was admitting that he had known that the complainant was asleep when he penetrated her any more likely than the other possible interpretations, and this interpretation was considerably less likely than his clear admission to penetration, although the two are not mutually exclusive.

Confronted with the uncertain and contentious content of the pretext call, the prosecutor pressed upon the applicant that his words were intended to represent an admission that he knew the complainant was asleep at the time of penetration. The applicant refused to concede this whilst maintaining on several occasions that he had been reluctant to contradict the complainant, suspecting that her partner was a silent party to the call, and not wishing to cause further damage to the relationship.

In my view, even if the pretext call contained an admission that at relevant times the applicant knew the complainant was asleep (which I doubt) its terms are sufficiently uncertain and ill-defined as to add very little to the prosecution case on the issue of reasonable belief in consent. Further, in my view, the applicant’s explanation for his rather passive and vague responses in the pretext call is plausible. In short, I am of the view that the overall content of the pretext call can be interpreted consistently with the applicant’s claim that he did not know that the complainant was asleep at the time of penetration. In these circumstances it does not resolve the doubt that arises from the evidence of the complainant and the applicant.

Conclusion on Ground 1

It is no small thing to overturn a jury verdict. However, in conducting an independent evaluation of the evidence, I have been unable to exclude the reasonable possibility that the applicant did not commit the offence.[7] Specifically, I have been unable to exclude the reasonable possibility that the applicant thought the complainant was awake and responding to his advances, and that he reasonably believed that she was consenting to the act of penetration. As long as an alternative reasonable hypothesis consistent with innocence exists, the prosecution will have failed to meet its burden of proof. Put another way, it was not open to the jury to conclude that
[7]See Pell (2020) 94 ALJR 394, 403 [42] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

(a) the accused knew the complainant was not consenting; or

(b) the accused gave no thought to whether the complainant was consenting; or

(c) even if the accused may have believed that the complainant was consenting, this belief was not reasonable in the circumstances.

I would grant leave to appeal on Ground 1 and allow the appeal.

Ground 2

Given my conclusions on Ground 1, it is unnecessary to consider Grounds 2 and 3. However, in deference to the excellence of the arguments, I offer the following observations.

In his final address the prosecutor made the following argument.

And so bringing your own understanding of human nature, human experience, you might think it’s her position and how she responded and how it evolved, is perfectly natural and understandable and not surprising. Put yourself in her position. It doesn’t look good on the surface, superficially. It looks at a first glance, and superficial glance, it looks suspicious, she’d be thinking. She’s been careless about her own safety and the night has jumped ahead of itself. She’s crashed on a man’s bed and the man is not a close friend, but someone she sees around the traps and interacts with. That’s all. She has stayed out for hours, all night. She’s stayed out probably, or at least perhaps, against her partner’s preference. So she’s sort of, if he didn’t — he said he’s not the person who controls things. He accepted it, ‘I’m tired, I’ll go home.’ She can stay on. And as she said, ‘I just wanted to, a night out. A couple of drinks with friends.’ That’s perfectly innocent, it’s perfectly natural, perfectly understandable and doesn’t prove anything. So she stayed out, probably as I say, or perhaps against his preference. She’s exposed herself and made herself vulnerable, unwisely and of course, boys will always be boys. That’s an ancient truth that she may well have forgotten. Boys will always be boys. And she’s exposed herself to that.[8]

[8]Emphasis added.

In legitimately arguing that the jury ought not be distracted by the earlier choices made by the complainant which made her vulnerable, the prosecutor twice stated, as an ‘ancient truth’, that ‘boys will always be boys’. In my view, the only sensible construction that can be placed on this phrase in its context is that men have a predisposition or propensity to commit sexual assault in the circumstances in which the applicant found the complainant.

I consider that the prosecutor’s use and emphasis of this phrase was most unwise. It was, as Mr Morrissey contended, an invitation to the jury to indulge in propensity reasoning, which usually carries with it a ‘prejudicial capacity of a high order’.[9] In my view the trial defence counsel’s objections should have resulted in the judge directing the jury to ignore this comment by the prosecutor and not to indulge in propensity reasoning. It is regrettable that her Honour declined, despite defence counsel’s requests, to give specific directions about these remarks. Instead her Honour gave only this general direction:

Throughout the trial, counsel have presented the prosecution and defence cases, while their comments and the arguments that you heard yesterday and today have been designed to assist you in reaching your decision. You also do not need to accept what they have said. Of course if you agree with an argument they have presented, you can adopt it.

[9]Pfennig v The Queen (1995) 182 CLR 461, 483 (Mason CJ, Deane and Dawson JJ).

By giving this direction, her Honour confirmed that the jury may accept and act upon the ‘boys will always be boys’ argument, should it appeal to them, without any constraints on the use they may make of it. As I have said, in my view the judge erred in (a) failing to direct the jury to disregard the comment, and (b) failing to direct the jury specifically that they may not reason that it is natural for all men to sexually assault women, and therefore natural for the applicant to do so.

Conclusion on Ground 2

As I have said, it is unnecessary, given my conclusions on Ground 1, to consider the question of whether these errors constituted a substantial miscarriage of justice under s 276 of the CPA. For the reasons I have set out, I am of the view that the failure to direct the jury in the manner that I have proposed constituted an irregularity or error in the trial.

Ground 3

Ground 3 complains not that the pretext call was inadmissible in the trial but that the judge erred in failing to direct the jury that the call could only be used in a limited way. The ground goes on to complain that the judge’s directions on how the call could be used were inadequate.

I have set out the terms of the call and my conclusions as to its content.[10] To reiterate, I consider that the call clearly contains an admission that the applicant digitally penetrated the complainant. The content of the applicant’s responses included a representation made by him to this effect and it was relevantly adverse to his interest in the outcome of the proceeding.[11] The applicant now says that her Honour should have directed the jury that, under s 136 of the Evidence Act, it could not treat the applicant’s representations as an admission that he knew the complainant was asleep when he penetrated her, and that her Honour should have limited its relevance to the reliance placed upon it in the Amended Summary of Prosecution Opening.
[10]See paras [17], [42]–[49] of these reasons.
[11]See Evidence Act 2008 Dictionary pt 1 (definition of ‘admission’). See also para [44] of these reasons.

The criticism now made by the applicant’s counsel does not sit well with the concession made by the applicant’s very experienced counsel at trial:

Her Honour: All right, well I’ll just repeat what I’m going to say, and could the parties just indicate what, if anything, they want to say.
‘In this trial, the prosecution argued that you can use the evidence of the accused in responding to questions from [AC] in the pretext conversation as evidence that he believed that he had committed the offence of rape. You may only use this evidence in this way if you find this conduct occurred, and the only reasonable explanation of the conduct is that the accused believed he had committed the offence.
‘However, I must warn you that even if you find the accused believed he committed the offence charged, you must consider all the evidence when deciding whether the prosecution has proved the accused’s guilt beyond reasonable doubt. I must also warn you that there are all sorts of reasons why a person might behave in a way that makes them look guilty. This means the accused may have given those answers even though he was not guilty of the offence. For example, he may have thought that the call was for the benefit of [PJ] and [AC].
‘Even if you think this conduct makes him look guilty, that does not necessarily mean he is.’
[Defence counsel]: Thank you.

Conclusion on Ground 3

Whilst there may well have been merit in requesting her Honour to give the jury a s 136 direction, in the absence of such a request, the direction foreshadowed by her Honour above was adequate in the circumstances. Given my conclusion on Ground 1 of this appeal, it is unnecessary to consider this ground further.

Conclusion

Leave to appeal is granted. Ground 1 being made out, I would allow the appeal. The applicant’s conviction of rape will be quashed and a verdict of not guilty substituted.

WEINBERG JA:

I agree, for the reasons given by T Forrest JA, that the applicant’s conviction on the charge of rape should be set aside, and a judgment and verdict of acquittal entered. In my opinion, having regard to the evidence as a whole, it was not open to the jury to be satisfied, to the requisite standard, that the applicant did not reasonably believe, at the moment of sexual penetration, that the complainant consented to that act.

Given the unusual circumstances of this case, and particularly the complainant’s confusion as to where she was, and by whom she was being sexually penetrated, the jury may well have reached this conclusion, but for the combined operation of s 36(2)(d) of the Crimes Act 1958 and s 47(3)(a) of the Jury Directions Act 2015. Pursuant to those provisions, knowledge, or belief, on the part of the accused that a victim happened to be ‘asleep’ at the moment that an act of sexual penetration took place, is deemed to negate any reasonable belief in consent, and the jury were so directed. Yet, having regard to the state of the evidence, taken as a whole, no finding of that kind could, at least to the requisite standard, have been made.

In relation to ground 2, I can do no more than deprecate the prosecutor’s use of the expression ‘boys will be boys’, in his closing address. More is expected of prosecutors than that.

Because there must be a judgment and verdict of acquittal, it is unnecessary to determine whether ground 2, had it stood alone, would have vitiated the conviction, and led to a new trial.

I agree with T Forrest JA’s discussion of ground 3. That ground is without merit.

LASRY AJA:

I have had the benefit of reading in draft the detailed reasons of T Forrest JA for his conclusion that the applicant’s conviction on the charge of rape should be set aside and a judgment and verdict of acquittal be entered. I have also read in draft the reasons of Weinberg JA for his agreement with T Forrest JA and the outcome proposed.

I respectfully agree with their Honours’ reasons and I do not wish to add anything to the discussion about ground 1 which has been carefully and thoroughly analysed and which resolves the application.

As to ground 2, there are several brief points I wish to make in agreeing with the reasons of T Forrest JA as to how that ground might have proceeded in the absence of ground 1. In my opinion it was an error of judgement for an experienced prosecutor to make the remark in his final address that:

She’s exposed herself and made herself vulnerable, unwisely and of course, boys will always be boys. That’s an ancient truth which she may well have forgotten. Boys will always be boys. And she’s exposed herself to that.[12]

Because the comment stood as a signal to engage in the impermissible propensity reasoning it implied, the trial judge should have directed the jury to disregard what the prosecutor had said and not use it in that way or at all. Ideally, that would have occurred at the first opportunity after the comment was made or at the conclusion of the prosecutor’s address and before counsel for the applicant was called upon to address the jury. If that had happened, no significant difficulty would have persisted however unwise the comment. However, counsel for the applicant did not raise the issue until after he had also addressed the jury. During that address he twice referred to the prosecutor’s remark, likely compounding the harm caused if only by reminding the jury of it.

[12]Emphasis added.

In my opinion, those circumstances made the need for a clear direction on the issue in the judge’s final charge all the more significant. However, her Honour’s conclusion as to how she would deal with it was in error. As T Forrest JA has concluded, the direction her Honour did give effectively confirmed that the jury could act on the prosecutor’s impugned argument without constraint.

In my opinion, had this ground stood alone, the combination of circumstances I have summarised would have been likely to have vitiated the applicant’s conviction with a new trial to have been ordered.

Finally, I also agree with T Forrest JA’s observations concerning ground 3 and do not wish to add anything further.

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Citations

Jonathon Hubbard v The Queen [2020] VSCA 303

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Libke v The Queen [2007] HCA 30

Haddara v The Queen [2014] VSCA 100

[2020] VSCA 303

26 November 2020