Kim v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0115

AHN SUP KIM	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, WALKER and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2023
DATE OF ORDERS:	22 August 2023
DATE OF REASONS:	20 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 228
JUDGMENT APPEALED FROM:	DPP v Kim [2022] VCC 490 (Judge Tinney)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault and rape charges – Whether trial judge misdirected jury that act relevant to one sexual assault charge not in dispute – Senior defence counsel addressed jury on basis that act in dispute – Junior defence counsel conceded act not in dispute – Trial judge instructed jury act not in dispute – No exception taken – Jury question asking for clarification – Junior defence counsel again conceded act not in dispute – Jury question answered accordingly – Ground upheld.

CRIMINAL LAW – Appeal – Conviction – Whether judge erred in directing jury that certain denials by applicant could be used as evidence of incriminating conduct – Whether judge erred in failing to direct jury to consider lies separately in relation to each charge – Bald denials incapable of being used as evidence of incriminating conduct absent ‘bootstraps’ reasoning – Necessity for direction that lies to be considered separately in relation to each charge – Substantial miscarriage of justice – Appeal allowed – New trial ordered.

Jury Directions Act 2015, s 20.

R v Gionfriddo (1990) 50 A Crim R 327 discussed – R v Laz [1998] 1 VR 453, R v Smith [2002] VSCA 219 referred to.

CRIMINAL LAW – Appeal – Conviction – Whether judge’s charge unbalanced in content and tone – Charge not unbalanced – Ground dismissed.

McKell v The Queen (2019) 264 CLR 307 discussed.

CRIMINAL LAW – Appeal – Conviction – Whether jury should have entertained a reasonable doubt about applicant’s guilt on two charges – Jury not bound to entertain reasonable doubt – Ground dismissed.

Criminal Procedure Act 2009, s 276.

M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, Dansie v The Queen (2022) 96 ALJR 728 discussed.

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Counsel
Applicant:	Mr D Dann KC with Ms C Boston
Respondent:	Mr C Boyce KC
Solicitors
Applicant:	Doogue & George
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WALKER JA
TAYLOR JA:

Introduction and summary

On 5 March 2022, following a 14 day trial, a jury in the County Court convicted the applicant of one charge of rape (charge 7 on the indictment) and six charges of sexual assault (charges 2–6 and 8).
The complainant in respect of all charges was Cynthia Price[1] who, at the relevant time, worked as a hostess at a karaoke club in the Melbourne CBD. The applicant visited that club on the night of 26 September 2017. All the offending was alleged to have occurred there in the early hours of the following day.
[1]A pseudonym.
On 8 April 2022, the applicant was sentenced to a total effective term of imprisonment of 7 years and 6 months with a non-parole period of 5 years.
The applicant applied for and, on 18 January 2023, was granted an extension of time in which to bring an application for leave to appeal against conviction and sentence.
He does so with respect to conviction on the following proposed grounds:[2]
1.   A substantial miscarriage of justice has occurred in circumstances where the Learned Trial Judge repeatedly provided the jury with a fundamental misdirection that the first element as regards charge 5 was not in dispute.
2.   The Learned Trial Judge erred in directing the jury that the Applicant’s denials of penetrating the Complainant’s vagina and touching the Complainant’s vagina beneath her underwear, could be used by them as evidence of incriminating conduct.
3.   The Learned Trial Judge erred in failing to direct the jury to consider the lies relied on by the prosecution as evidence of incriminating conduct – separately as regards charges 2, 3, 4, 5, 6, 7 and 8 on the Indictment.
4.   The Learned Trial Judge failed to provide a balanced charge.
5.   The guilty verdict on the charge of rape is unsafe and unsatisfactory in that any jury acting reasonably must have had a doubt that the Applicant penetrated the Complainant’s vagina.
6.   The guilty verdict on charge 5 is unsafe and unsatisfactory in that the Learned Prosecutor and Learned Trial Judge failed to identify any evidence that could support this charge.
[2]For convenience we will refer to the proposed grounds of appeal as grounds of appeal.
Leave to appeal against sentence is sought with respect to the single ground that the sentence imposed on the charge of rape, the total effective sentence and the non-parole period are manifestly excessive.
At the conclusion of the hearing of the application for leave to appeal with respect to conviction, the Court was of the view that at least grounds 2 and 3 had to succeed. We made orders granting leaving to appeal, allowing the appeal, setting aside the convictions and ordering a new trial. These are our reasons for those orders.

Background

The applicant is a Korean-born medical doctor who, on 26 September 2017, was visiting Melbourne from Sydney. He was then aged 48 years. At about 11:00 pm he attended at a karaoke club in the Melbourne CBD. Ms Price, then aged 26 years, was a Korean woman in Australia on a student visa. She worked as a hostess at the club.
Upon arrival the applicant booked a private room and requested the services of a Korean hostess. Ms Price and one other hostess, AY,[3] attended the room. The applicant selected Ms Price. AY left the room.
[3]A pseudonym.
Ms Price sat down with the applicant. She served him drinks and they talked. They exchanged telephone numbers. At about 3:28 am on 27 September 2017 the applicant gave a lit cigarette to Ms Price. She understood it to be ordinary tobacco. When Ms Price inhaled from it she immediately felt sick, weak and lethargic, struggling to keep her eyes open. She had trouble talking and could not control her body.
At trial the prosecution alleged that the applicant had administered Ms Price with a substance via the cigarette. He was acquitted of the charge of administering a drug for sexual purposes (charge 1).
The prosecution case was that while Ms Price was in a physically compromised state the applicant touched her breasts over her clothes (charge 2), kissed her on the lips (charge 3) and touched her vagina over her clothes after he spread her legs apart (charge 4). He then put his right hand down the front of her pants and touched her vagina (charge 5) before penetrating Ms Price’s vagina with his fingers (charge 7). While the applicant was doing this, he put his left hand on Ms Price’s breasts underneath her clothing (charge 6). At this stage Ms Price’s body was limp and she appeared barely conscious. She slid off the couch almost to the floor. When the applicant ceased touching Ms Price, she did then slide to the floor. He pulled her back onto the couch and again touched her vagina over her clothing (charge 8). The applicant left the room a short time later.
These events, which took place over three to four minutes, were captured by a CCTV camera affixed in the private room.
Another employee of the club later found Ms Price lying on the couch. Unable to rouse her, he alerted the manager of the club. Together they again tried to rouse Ms Price. After about 15 minutes she became more conscious, but was dizzy and not in control of her body.
At about 5:00 am Ms Price called AY and said that she felt strange and could not move her body. AY and another woman attended the club and found Ms Price still lying on the couch. They tried to pick her up but she could not move. With some assistance, Ms Price travelled home. There Ms Price told AY that she felt ‘really weird’ after inhaling from the cigarette and could not move or see, but could hear and feel things. Ms Price said that while she was unable to move the applicant touched her sexually and put his finger inside her vagina.
At about 3:00 pm Ms Price decided to seek medical attention. En route she received a call from the applicant which she did not answer. Ms Price then sent a text message to the applicant, which prompted the following exchange:
Ms Price:I remember everything about yesterday, I am going to the hospital now. Let’s talk via text messages.
Applicant:Are you in a lot of pain??? You seemed to be having a really hard time yesterday so I was really sorry…
Ms Price:What on earth did you do…? I am on my way to the hospital.
Applicant:For what problems???
Ms Price:You know it well, I remember everything.
Ms Price attended a general practitioner. She reported symptoms of nasal congestion and an irritating, dry cough. She made no complaint of sexual assault or penetration.
At about 8:00 pm that evening Ms Price sent the applicant a text message stating ‘I am preparing to report this as a sexual assault’. The applicant did not reply.
On 2 October 2017 Ms Price returned to the club and with the manager watched the CCTV footage from the private room she had shared with the applicant on 26–27 September 2017. Ms Price recorded parts of that CCTV footage on her mobile phone.
Later that same day Ms Price sent the applicant a text message in the following terms. It was accompanied by a screenshot of a still from the footage.
I found out the number of Syden (sic) Burwood cosmetic surgery clinic, your wife’s number and I have a photo, video with your face
//captured video screen//
I am not going to be silent about this. Call me when you can.
A day or two later Ms Price said she was with her friend ‘Vanessa’, who spoke to the applicant’s lawyer in the guise of Ms Price and at her behest. Vanessa requested $60,000 from the applicant.
On 5 October 2017 Ms Price left Australia for a pre-arranged holiday in Korea.
By 26 October 2017 Ms Price had returned to Australia. On that date she sent the applicant a text message: ‘Ask your lawyer to contact me, I have something to say’. The same day Ms Price received a phone call from a woman called Jenny who said that she was close to the applicant and wanted to meet and talk. Ms Price declined.
On 3 November 2017 Ms Price sent a further text message to the applicant:
Your lawyer hasn’t contacted me and I don’t want to contact them either.
I want to resolve this with you. Contact me. This is the last time I am contacting you.
On 4 November 2017 Ms Price sent another text message to the applicant. She said that she did not want to destroy the applicant’s life by escalating the matter but had ‘suffered so much physically and mentally because of the sexual assault’. She said that she had possession of a video and wanted compensation for ‘mental health treatment fees, air fares to Korea for the purpose of receiving treatment and the loss of income incurred as a result of this incident’. The message was accompanied by a screenshot of a still from the CCTV footage. The applicant did not reply.
On 9 November Ms Price was contacted by a Korean-based solicitor on a Korean messaging application called KakaoTalk. A document written by the solicitor was attached to the message. It accused her of breaching the criminal law of the Republic of Korea by possessing drugs and threatening to blackmail the applicant with the CCTV footage. It further threatened the involvement of the Consulate of the Republic of Korea in Australia in the matter and the potential deportation of Ms Price to Korea.
On 11 November Ms Price sent the following response:
I contacted you after having a meeting with an Australian lawyer today but you did not answer, so I am leaving this message. My lawyer strongly recommended me to report this to the Australian police, so I am planning to report it next week. You already know why I am contacting you, so I am advising you, in goodwill for the last time, to prepare yourself for that. From now on, you or your lawyer can talk to the Australian police directly.
On 16 November 2017 Ms Price made a complaint to police. Police obtained the copied CCTV footage from her phone. Inquiries made that same day of the manager at the karaoke club revealed that the original CCTV recording of 26–27 September 2017 was no longer available.
On 27 November 2017 Ms Price swore a police statement. It did not contain any allegation of digital penetration. She swore a second police statement on 28 April 2018 which did.
The applicant was interviewed by police on 18 January 2018. He initially denied any sexual touching of Ms Price. When shown a still image taken from the CCTV footage that depicted him touching Ms Price between her legs with his right hand while his left hand was on her breast, the applicant admitted some sexual touching and said it was consensual. The applicant maintained his denial of both touching Ms Price’s vagina underneath her underwear and penetrating her vagina with his finger or fingers.
The defence case at trial was that the applicant had not administered any substance to Ms Price in the cigarette. It was argued that Ms Price consented to any sexual touching that had occurred and the applicant had a reasonable belief in her consent. The consensual sexual touching did not include any touching of the vagina beneath the underwear nor any penetration of the vagina. Ms Price had determined to blackmail the applicant with false accusations of sexual misconduct.

Grounds of appeal

Grounds 2 and 3 – Incriminating conduct

As we have said, after full argument we were of the view that at least grounds 2 and 3 had to succeed. The manner in which evidence of incriminating conduct was left to the jury was productive of a substantial miscarriage of justice.
It is therefore appropriate to consider grounds 2 and 3 together and first.
The evidence and argument at trial
Grounds 2 and 3 concerned the manner in which the judge directed the jury in relation to the applicant’s answers to 25 questions in the record of interview. It is thus necessary to set out the questions and answers relevant to these grounds, and consider how they were dealt with at the trial. The relevant questions and answers were as follows:
778    Did you put your hand under her top and touch her bare breast?
No. No.
779    Definitely?
Definitely not.
780    Why is it that you say no is it - is it ---?
Bare breast means I go in and do that.
781    Yeah?
I – I don’t do that. I didn’t do that.
782    Did you touch her breast above her top?
Probably up to – sorry breast ---?
783    Breast – the – her breasts?
Yeah, breast above the top?
784    No, no, did you touch her breast over the top of her clothing?
No.
785    No?
No.
786    Did you touch her vagina over her pants?
No.
787    Did you touch her area over her pants?
No, no.
788    No?
No.
789    Did you put your hands under her pants and touch her vagina?
No. No way.
790    So you didn’t have your hands in her pants?
No.
791    Did you insert your finger in her vagina --- ?
No, no.
792      --- when ---?
No.
793    No?
No.
794    OK. So I just want to establish ---?
Yes.
795    --- that you definitely didn’t do any of this?
No.
796    It’s not a case of you can’t remember?
No, it’s definitely I haven’t done this.
797    OK?
Yeah.
798    If you had of done that would you remember it?
(NO AUDIBLE REPLY)
799    Are you saying that it’s not ---?
No.
800    --- it’s not a case of memory loss ---?
Yeah, yeah, yeah.
801    --- it’s just a case of you flat out didn’t ---?
Yeah, flat out, yeah, yeah, is.
802OK. Did you check her pulse at any stage when you were in that – in the karaoke room?
No, I don’t do that.
The focus of grounds 2 and 3 is on the answers given to questions 789 and 791, highlighted above.
As is apparent, the applicant made six specific denials: to touching Ms Price’s breast, both over and under her clothing; touching her vagina, both over and under her pants; to inserting his finger in her vagina; and to checking her pulse.
Later in the record of interview, and only after he had been shown various still images from the CCTV footage, the applicant admitted that he had touched Ms Price’s breast, both over and under her clothing, had touched her vagina over her pants and checked her pulse. He also then said that he did not fully remember the evening.
At the conclusion of the evidence, counsel for the applicant filed written submissions concerning the purported use of the answers to questions 778 to 802 as incriminating conduct in which it was submitted that the applicant did not make any admission to touching Ms Price’s vagina under her clothing. That submission was not developed in oral argument. The focus of the oral submissions was rather that none of the relevant answers were reasonably capable of being viewed as deliberate lies, as opposed to inadvertently inaccurate statements produced by a faulty memory.
The trial judge ruled that the answers to questions 778 to 802 in the record of interview were, on the basis of the evidence as a whole, reasonably capable of being viewed by the jury as deliberate lies and, therefore, incriminating conduct. His Honour did so in a global manner, stating:
I will give a direction in relation to that; that the conduct that can be relied upon in relation to each one of the sexual acts alleged on the indictment, and for that matter, any alternative to such act.
The prosecutor read all 25 questions and answers to the jury during his closing address. He then said:
All lies. The reason that he lies about those things is that he knows that he’s done the wrong thing. Those denials are crucial when you come to assess the other things that he says in the record of interview and in a moment I’ll tell you how you can use the lies in the record of interview. [Senior counsel for the applicant] will address this and his Honour will give you very careful direction about how you can use these lies in the record of interview.
In her address to the jury, senior counsel for the applicant argued that the jury could not be satisfied that the answers to those questions were deliberate lies, suggesting that they were the product of a less than perfect memory.
In his charge, the trial judge said the following:
The second way, though, in which you may be able to use a lie in this case is as evidence that [the applicant] believed that he committed the various sexual offences with which he is charged, that he touched and penetrated her without her consent and with no reasonable belief in her consent. You may only use evidence that he lied in this way if you find that he did tell a deliberate untruth and that the only reasonable explanation for him doing so is he believed that telling the truth would implicate him in these crimes, all right.[4]
[4]Emphasis added.
His Honour next referred to the necessity for the alleged lies to be deliberate untruths — and the defence argument that they were not — before then reading questions and answers 778 to 801. His Honour then gave directions pursuant to ss 21 and 22 of the Jury Directions Act 2015 (‘JDA’) before continuing to say:
So the alleged lies are those that I have set out within that portion. They are relied upon to prove all of the sexual offences, including the rape and any alternatives that you come to consider, so relied upon in proof of the happening of the act as well as the lack of consent and his not having any reasonable belief in consent. They are not – and I repeat not – relied upon to prove charge 1. So they are not relied upon in relation to charge 1. You cannot use them in relation to proof of that charge.[5]
[5]Emphasis added.
Finally his Honour outlined the prosecution and defence arguments as to why the answers were or were not deliberate lies.

The parties’ submissions on the appeal

In relation to ground 2, the applicant argues that two of the answers he gave to police in the record of interview, namely his answer to question 789 — the denial of touching Ms Price’s vagina beneath her underwear — and the answer he gave to question 791 — the denial of digital penetration — were incapable of constituting lies amounting to implied admissions of having committed an element of an offence charged. They were nothing more than bald denials of the acts relevant to charges 5 and 7. A finding that those denials were lies was possible only by ‘bootstraps’ reasoning that the applicant had in fact engaged in those acts.

These bald denials were contained within a discrete series of answers given by the applicant during the record of interview in which he denied a number of the acts relied upon for the separate charges. The applicant does not take issue that the other denials were reasonably capable of being viewed by the jury as evidence of incriminating conduct, because those denials were contradicted by the CCTV footage and the applicant’s later answers in the record of interview. Rather, the applicant argues that the trial judge erred in directing the jury that, if satisfied that the series of answers (which included the two bald denials) were lies, it could use them as evidence that the applicant believed he had committed ‘the offences’ charged, except charge 1. He submitted that the case required the judge to specifically direct the jury as to which alleged lie related to which separate charge. This is the complaint under ground 3.
The respondent argued that the two answers concerning the touching of Ms Price’s vagina beneath her underwear and of digital penetration were more than bare denials and were reasonably capable of being viewed by the jury as evidence of incriminating conduct. The respondent submitted that the jury was entitled to use these false denials in the context of other patently false denials of any sexual touching as a concocted story by the applicant to minimise his illicit conduct.
The respondent further argued that this was not a case which required the trial judge to isolate each alleged lie as relevant to each charge. The jury had been instructed to consider each charge separately and that evidence relating to the various acts comprising charges 2 to 8 could not be used in proof of one another. Accordingly, the jury would not, for example, have mistaken that a lie in relation to the touching of a breast could be used in proof of a charge concerning vaginal touching.

Discussion

Four of the six denials made by the applicant within the relevant portion of the record of interview are reasonably capable of being viewed as deliberate lies. The CCTV footage depicts the applicant touching the breast of Ms Price in both manners alleged, touching her vagina over her pants and checking her pulse. He later admitted doing so in the record of interview only after he had been shown various stills of the CCTV footage. Except for the taking of the pulse, he also admitted that it was sexual touching.
However, having initially denied both touching Ms Price’s vagina under her pants and inserting his finger into her vagina, the applicant maintained those denials. He did so even though he admitted to putting his hand inside Ms Price’s pants. The applicant said that he only touched her to the top of her pubic hair and no further. The CCTV footage shows that the applicant had his hand inside Ms Price’s pants for a period of about 1 minute and 30 seconds and his hand appearing to move during that time, but it could not establish whether his hand was beneath her underwear and/or whether he was either touching or penetrating her vagina.
Accordingly, the applicant’s answers to questions 789 and 791 in the record of interview did not and could not amount to incriminating conduct. They are denials of the acts relevant to charges 5 and 7. There is no basis in the evidence from which to reason that these two denials were deliberately false unless it is first assumed that the applicant did those acts.
That circular reasoning is impermissible. As the Court of Criminal Appeal in R v Gionfriddo said:
A lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charge axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps.[6]
[6](1990) 50 A Crim R 327, 332–3 (Crockett and O’Bryan JJ); [1989] VSC 498 (‘Gionfriddo’). See also R v Laz [1998] 1 VR 453, 466 (Ormiston and Charles JJA, Vincent AJA) and R v Smith [2002] VSCA 219, [109] (Phillips CJ, Phillips and Chernov JJA).
It follows that ground 2 must be upheld. We do not accept the respondent’s submission that there was no risk that the jury would have engaged in ‘bootstraps’ reasoning based on the answers given to questions 789 and 791. We consider that there was a real risk that they may have done so. That risk is productive of a substantial miscarriage of justice in relation to charges 5 and 7.
Turning to ground 3, as is apparent from the extract of the charge cited at paragraph 43 above, his Honour did not instruct the jury as to which lie (if the jury was satisfied that it was a deliberate lie) could be used as incriminating conduct in relation to which charge.
His Honour did, earlier, give the jury a separate consideration direction and illustrated that direction in the following manner:
If a particular piece of evidence is only relevant to one charge you may only use it when deciding whether or not he is guilty of that charge. You must not consider it in relation to one of the other charges.
Now, as an example, here [Ms Price] has given evidence of a number of these acts. Well, you recall that evidence. What she describes as the particular conduct the subject of a particular charge is only evidence in relation to that charge. You do not use that evidence in relation to one charge as evidence in relation to another and vice versa.
However, the manner in which his Honour directed the jury about the use of the alleged lies, reproduced at paragraph 43, was at odds with the separate consideration instruction, reproduced at paragraph 55. The judge directed the jury that ‘a lie’ could be used as evidence that the applicant believed he had committed ‘the various sexual offences’, specifically that he had ‘touched and penetrated’ Ms Price, and also that the ‘lies’ were relied upon in proof of ‘all the sexual offences, including the rape and any alternatives’. His Honour added that this use of the ‘lies’ was not permissible in relation to charge 1. Irrespective of the earlier separate consideration direction, the jury may well have understood these later directions to mean that any single lie could be used in relation to any of the charges (except charge 1) and that the combined force of the lies was also relevant to all the charges. That danger is compounded by the fact that two of the alleged lies, be they used as a single lie or as part of the suite, were incapable of being used as evidence of incriminating conduct at all.
Further, the risk of infection of impermissible reasoning spreading from the bald denials of the conduct relevant to charges 5 and 7 in the trial judge’s global direction was heightened by the nature of the prosecution case. The various sexual offences were alleged to have occurred in a temporally limited sequence that escalated both in brazenness and seriousness. As a result of the fused direction that ‘a lie’ or ‘the lies’ could be used as incriminating conduct with respect to ‘all of the sexual offences’, there was a very real risk that, for example, the jury would have reasoned that a lie about touching Ms Price’s breast under her clothing could be used as incriminating conduct in relation to rape which, on the prosecution case, occurred simultaneously, or that a lie about digital penetration — which could not be used as a lie in any manner — would necessarily mean that all the other earlier alleged sexual touching had occurred.
It follows that ground 3 must be upheld. There is a real risk that the jury may have reasoned impermissibly in this manner, which is productive of a substantial miscarriage of justice with respect to all of the charges of which the applicant was convicted.

Ground 1 – Misdirection on charge 5

Ground 1 is that the trial judge misdirected the jury that the first element of charge 5 — namely that the applicant touched the complainant’s vagina — was not in dispute. In order to understand this ground, it is necessary first to set out some detail about how this issue was dealt with at trial.

The evidence and argument at trial

Charge 5 is that the applicant ‘intentionally sexually touched [the complainant] without her consent in circumstances where [the applicant] did not reasonably believe that [Ms Price] consented to the touching. The particulars of the indictment of charge 5 are: ‘[The applicant] touched [Ms Price’s] vagina’. That is in contradistinction to the particulars of charge 4, which was also a charge of intentional sexual touching without a reasonable belief in consent, being ‘[The applicant] touched [Ms Price’s] vagina over her clothing’.
The Summary of Prosecution Opening filed in advance of the trial described charges 4 and 5 as follows:
[11]The accused then touched the complainant’s vagina over her pants. After a short time, he spread her legs apart and once again touched her vagina over her pants [Charge 4 – Sexual Assault] While he did these things, the complainant was still slumped over and she was unable to move.
[12]The accused continued. He put his right hand down the front of the complainant’s pants and into her underwear. [Charge 5 – Sexual Assault] At that point, the complainant attempted to grab his hand to stop him from putting it down her pants, however, she was unable to do so. Moments later, the complainant lost control of her body.
Following an unsuccessful attempt to have the CCTV footage excluded from evidence, the applicant sought and was granted leave to amend his Defence Response to state that he admitted to touching the complainant in a sexual manner ‘subject to the denials herein’. In oral argument before the trial judge seeking that leave, senior counsel submitted that it was artificial for the defence to have to identify precisely what touching was admitted. She said that the applicant was prepared to say that at some points he did touch Ms Price ‘on the breast and in the vaginal region over the clothes’. When asked by his Honour if the hand inside the pants was in dispute, senior counsel replied:
Now, the hand inside the pants is part of the proof of the digital penetration, as I understand it. And so whilst it is not disputed that the hand went inside the pants … it didn’t go – it certainly didn’t penetrate the vagina, or even the inner interior underpants. … So, the touching, then, must be confined to touching outside the clothes in sexual area of the body.
During his opening address to the jury, the prosecutor summarised and distinguished charge 4 as ‘that he touched her vagina over her clothing’ and charge 5 as ‘that he touched her vagina, so that’s not over the clothing, that’s skin on skin.’
During her opening address to the jury, senior counsel for the applicant stated that it was not disputed that there was some sexual or intimate touching by the applicant but any such touching was done with consent or a reasonable belief in consent. Senior counsel expressly disavowed digital penetration by the applicant (charge 7). Her argument with respect to charge 5 was more oblique. She said that it was ‘conceded at once that at one point, the accused appears to be putting his hand into the pants but it will be always a matter for you just how far that could possibly have gone.’
It is unnecessary to reproduce the cross-examination of Ms Price in any detail. It was suggested to her that she was lying about the entirety of the incident for the purpose of blackmailing the applicant. It was suggested to her that the applicant did not have his hand beneath her underwear and stopped at her pubic hair. It was suggested that the CCTV footage depicted the applicant’s shirt cuff and the skin of his wrist and upper hand at the time his hand was in her pants.
During the discussion at the conclusion of the evidence concerning the directions to be given to the jury by the trial judge, the following exchange occurred between the trial judge and junior counsel for the applicant.
HIS HONOUR:        Charge 5 – touching her vagina. This is I think said to be under the clothing. Obviously not involving penetration, that one. It connects ---
COUNSEL:Well, vagina, again – I mean, I suppose the difficulty is vagina. Obviously we’re not admitting that he’s touched her vagina.
HIS HONOUR:        Well, (indistinct words) but it’s not one alleging penetration; it’s in that area.
COUNSEL:It is, and the evidence, we say supports – the position of the defence is that his fingers are put down her pants at the top of the pubic area.
HIS HONOUR:        All right. So it’s that act admitted and also the character of it being a sexual touching?
COUNSEL:Yes, Your Honour. I’m just concerned about the use of the term ‘vagina’. That obviously needs some careful ---
HIS HONOUR:        Yes, but we know the way it’s described. We’re not dealing with penetration for that one ---
COUNSEL:Yes, understood.
HIS HONOUR:        --- because that would involve an allegation of rape – there’s a later allegation, so ---
COUNSEL:Yes, but I’m still mindful of or concerned about the use of the term ‘vagina’ in the context of these sexual assault charges ---
HIS HONOUR:        I follow that.
COUNSEL:--- subject to the specificity of what we say the evidence shows. Yes.
HIS HONOUR:        Anyway, you’re telling me the act – so the first and second elements are not in dispute?
COUNSEL:That’s right, Your Honour.
A little later, when the prosecutor was addressing the judge, his Honour reiterated his understanding as being that ‘the one act in dispute[7] [was] the penetration subject of charge 7 but the sexual touching [was] not in dispute’.
[7]Aside from charge 1.
In his closing address, the prosecutor again referred to charge 4 as a touching of the vagina over the clothing and charge 5 as a touching of the vagina under the clothing.
In her closing address to the jury, senior counsel for the applicant said that the applicant conceded that there was some ‘intimate touching’ and that it was acknowledged ‘that the hand was inside the outer pants, the high-waisted pants’. She said that the applicant was ‘very, very definite about not having touched her vagina’.
In his charge, the trial judge explained the elements of sexual assault, as they applied to ‘charges 2–6 on the indictment, charge 8, and also that second alternative [to charge 7, rape]’. In relation to the first element of the offence, his Honour said:
[The applicant] must have intentionally touched the complainant in the way alleged.
Now the way alleged is set out in the indictment, you know, and there is no mystery about that. You see the particular of the actual touching that is alleged in the indictment.
Now there is a lot more I could say on this score, but the touching, the act in relation to these matters, it is not in dispute in this case. You will recall [senior counsel for the applicant’s] submissions in relation to that. It is submitted that he touched [Ms Price] in the way alleged. So this element will not trouble you at all. It is not in dispute, so I do not need to go through and describe what sort of touching it has to be.[8]
[8]Emphasis added.
Later in the charge the trial judge took the jury through a checklist of the elements that had been provided to them and again said with respect to all the charges of sexual assault that there was no dispute ‘as to the touching’.
No exception was taken to his Honour’s charge.
After the jury had retired to deliberate, they asked two questions. First, whether the touching of the clitoris would constitute rape. Second, to ‘please confirm that element 1 of charge 5 is not in dispute’.
Discussion in the absence of the jury included the following exchange between his Honour and junior counsel for the applicant:
HIS HONOUR: Please confirm that element 1 of charge 5 is not in dispute. Your leader has told them it isn’t.
COUNSEL:Yes. Sorry, I’m just pulling it up, I’m not disagreeing. No, that is correct, Your Honour, it’s not in dispute, I’d agree with that.
His Honour then answered the jury’s question accordingly.

The parties’ submissions on the appeal

The applicant argues that it was ‘abundantly clear’ that the defence case was that the applicant did not touch Ms Price’s vagina beneath her underwear. He maintained his denial of that act in the record of interview. Senior counsel addressed the jury on that basis, arguing that the applicant’s hand reached the top of the pubic hair but not beyond. There was cross-examination conducted and argument made in the trial designed to show that the applicant’s finger(s) could not have reached Ms Price’s vagina. The latter concerned the alleged small size of the applicant’s hands, the high-waisted pants worn by Ms Price and the visibility on the CCTV footage of the applicant’s shirt cuff and watch at the time his hand was beneath Ms Price’s pants.
The applicant further argues that the abundant clarity of that position should not have been clouded by junior counsel for the applicant accepting as accurate the trial judge’s characterisation of the issues in dispute with respect to charge 5 as being the same for the other charges of sexual assault, in that the elements in dispute were limited to consent and reasonable belief in consent.
The applicant submits that, inconsistently with the defence case throughout the trial (aside from the concessions made by junior counsel), his Honour directed the jury that the act of touching the vagina relevant to charge 5 was not in dispute. Not only did that undermine the defence with respect to that charge, it inexorably infected the reasoning process with respect to charge 7. A central plank of the defence to the rape charge was that the applicant’s finger(s) could not have penetrated Ms Price’s vagina because they never went beyond the top of her pubic hair.
The respondent submits that the trial judge directed the jury on the basis of the applicant’s junior counsel’s concession that the applicant touched Ms Price’s vagina beneath her underwear and was correct to do so. There was a basis for that concession in the evidence of Ms Price and the CCTV footage. Alternatively, the respondent submits that the jury would have understood, in the context of the evidence, that the allegation was that the applicant placed his hand beneath Ms Price’s pants and touched her genital region, being her pubic hair, and that such touching was sexual in nature.

Discussion

Charge 5 alleged that the applicant touched the vagina of Ms Price underneath her clothing — ‘skin on skin’ as described by the prosecutor. It was not an allegation that he touched the vaginal, genital or pubic area. So much is plain from the indictment.
What is equally plain is that the defence case was that the applicant did not touch Ms Price’s vagina underneath her clothing. He consistently denied doing so. His senior counsel argued to the jury that his hand went no further than the start of Ms Price’s pubic hair. While that intentional touching (if the other three elements of sexual assault were satisfied beyond reasonable doubt) would amount to a sexual assault, it was not the sexual assault alleged in the particulars of charge 5.
That being so, the dissonance between the concessions made by junior counsel for the applicant in the absence of the jury and the defence case as argued by senior counsel to the jury is unfathomable. The resulting dissonance between the defence address and his Honour’s charge was obviously perceived by the jury and caused them concern. There could be no other basis for their second question. In this regard, it is to be noted that in his charge concerning the elements of rape, his Honour directed the jury as to the legal definition of ‘vagina’.
Having then been told that the first element of charge 5 was not in dispute, the verdict could mean either that the jury rejected the defence case and were satisfied beyond reasonable doubt of an intentional touching ‘on the vagina’ or that the jury were satisfied beyond reasonable doubt that the intentional touching to the top of the pubic hair equated with an intentional touching on the vagina. While the verdict of guilty on charge 7 may indicate the former is more likely, there is an obvious and unacceptable risk that the applicant was convicted of an offence other than that pleaded on the indictment.

That being so, we are of the view that, on this basis, the conviction on charge 5 amounts to a substantial miscarriage of justice even in light of the conduct of defence counsel not only failing to take exception to the charge but acquiescing to it. The interests of justice demand that course.[9]
[9]R v Caine (1990) 48 A Crim R 464, 475 (Crockett, McGarvie and Beach JJ).
It follows that ground 1 must be upheld.

Ground 4 – unbalanced charge

The parties’ submissions

The applicant submitted that the trial judge’s charge was unbalanced, both in tone and content. It was argued that the following matters contributed to the imbalance:
(a)The motive to lie direction rehearsed in full the prosecution argument that it was ludicrous that Ms Price had determined to blackmail the applicant, using language not used by the prosecutor, but failed to adequately put the defence position. In particular, the judge’s tone and demeanour had the effect of making it plain to the jury that he agreed with the prosecution on the issue.
(b)In giving directions in relation to prior inconsistent statements and differences in accounts, the trial judge referred to material to which the prosecutor had not referred, and which had the effect of restoring the credibility and consistency of the complainant.
(c)In giving the direction as to opinion evidence the judge referred to numerous criticisms that had been made of the defence expert by the prosecution, but made no reference to the defence’s criticisms of the prosecution expert.
(d)In giving a direction about attempted rape as an alternative to charge 7, the trial judge referred to the fact that the applicant had put his hand down the complainant’s pants and commented ‘nothing remote or distant about that’.
(e)During the circumstantial evidence direction, the time given to the prosecution case was five times as long as that given to the defence case.
(f)There were several occasions on which his Honour posed and answered questions not drawn from the address of the prosecutor.
(g)The misdirection on charge 5 (relevant to ground 1).
(h)The error in the incriminating conduct direction (relevant to grounds 2 and 3).
The respondent argued that the charge was fair and balanced, both in its content and delivery.

Discussion

The plurality of the High Court in McKell v The Queen restated the duty of a trial judge in charging a jury as follows:
A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. In Domican v The Queen, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ observed that “the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury”. In carrying out this task, it is no part of the trial judge’s role to “don the mantle of prosecution or defence counsel”. As Gibbs CJ said in Cleland v The Queen, “[i]t is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused”.[10]
[10](2019) 264 CLR 307, 319–20 [35]; [2019] HCA 5 (‘McKell’) (citations omitted).
Having reviewed the charge as a whole and having watched an excerpt of it during the hearing of the application, we consider that the judge held an even balance between the cases of the prosecution and the accused, as was his duty.
The specific matters relied upon by the applicant vary in strength of criticism. But, neither alone or in combination do they amount to a substantial miscarriage of justice. On occasion his Honour adopted the language used by counsel. On other occasions the judge paraphrased what both counsel had said with equivalent descriptors and summarised arguments by posing questions of fact. There is nothing improper in that course. It is also unsurprising that at times a summary of one argument takes longer than the summary of its counterpart. In this case that differential went in both directions. And, nothing that the trial judge said in those summaries was without evidential foundation.
Further, there was nothing in the tone of his Honour that had the effect of undermining the defence case or adding force to the prosecution case. Trial judges are not required to charge juries in a monotone. In this case, following the issue being raised by defence counsel, his Honour specifically told the jury that the level of his animation was immaterial to their task.
It follows that ground 4 must fail.

Grounds 5 and 6 – Unreasonable or insupportable verdicts

The parties’ submissions

The applicant argues that the verdicts on charges 5 and 7 are unreasonable or insupportable, but for different reasons.
With respect to charge 7 (ground 5), it is argued that any jury acting reasonably must have had a reasonable doubt as to whether penetration had occurred. That is based on a number of interrelated submissions.
(a)First, that Ms Price was not credible or reliable as to the act of penetration because of the many differences in her accounts as to whether she was sure that penetration had occurred.
(b)Second, that the prosecution case as to lack of consent was based on the physical incapacity of Ms Price. She could not give truthful and accurate evidence of an event that was alleged to have occurred when she was asleep or unconscious or so affected by alcohol or a drug as to be incapable of consent.
(c)Third, the CCTV footage could not establish the act of penetration.
(d)Fourth, the negative impact on Ms Price’s credibility arising from her friend Vanessa’s request for $60,000 from the applicant.
(e)Fifth, the applicant’s consistent denial of penetration.
(f)Sixth, the jury question as to whether a touching of the clitoris would constitute penetration in circumstances where Ms Price had given no evidence of clitoral touching.
The respondent argues that the differences in accounts given by Ms Price, her state of consciousness, her overall credibility and the question asked by the jury are not sufficient bases to conclude that it was not open to the jury, acting reasonably, to find beyond reasonable doubt that the applicant had penetrated the vagina of Ms Price.
With respect to charge 5 (ground 6) the applicant argues that the prosecution failed to identify any evidence upon which the jury could be satisfied that he touched Ms Price’s vagina. Evidence that the applicant put his hand beneath the waistband of Ms Price’s pants was insufficient. There was no evidence given by Ms Price that would allow the jury to isolate an incident of the applicant touching her vagina beneath her underwear and the evidence relied on to establish penetration. That situation was further exacerbated by the trial judge’s direction that the jury could consider a charge of sexual assault as an alternative to charge 7 if not satisfied that penetration had occurred.
The respondent argues that the sexual touching alleged with respect to charge 5 was clearly distinguished from that alleged with respect to both charges 4 and 8 by it being ‘skin on skin’, as opposed to over the clothing, and from charge 7 by it occurring prior to the separate act of penetration. So much was made plain by the prosecutor in his opening address. And, the evidence then led at trial allowed for a finding beyond reasonable doubt that the act of touching alleged in count 5 occurred.

Discussion

The principles relating to the inquiry necessitated by s 276(1)(a) of the Criminal Procedure Act 2009 are well settled. The question for this court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.[11]
[11]Dansie v The Queen (2022) 96 ALJR 728, 730–32 [7]–[15] (The Court); [2022] HCA 25; M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’).
The question is to be decided by the appellate court’s independent assessment of the evidence. That assessment must proceed on the assumption that the jury assessed the complainant’s evidence to be credible and reliable.[12] A doubt an appellate court experiences when embarking on an independent assessment will, in most cases, be a doubt which a jury ought to have experienced. However, the court must consider that the jury is entrusted with the primary responsibility of determining guilt and give full weight to the advantage it had in seeing and hearing witnesses give their evidence.[13]
[12]Pell v The Queen (2020) 268 CLR 123, 145 [39] (The Court); [2020] HCA 12 (‘Pell’).
[13]M (1994) 181 CLR 487, 492–4 (Mason CJ, Deane, Dawson and Toohey JJ).
It is only where such an advantage is capable of resolving a doubt experienced by an appellate court that the court may conclude that no miscarriage of justice occurred. If, even making full allowance for the advantages enjoyed by the jury in assessing the credibility of witnesses, the appellate court concludes that there is a significant possibility that an innocent person has been convicted because the evidence on the record is tainted, contains discrepancies, displays inadequacies or otherwise lacks probative force, that court is bound to act and set aside the impugned verdict.[14]
[14]Ibid, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ).
Having undertaken our own review of all of the evidence in this case, we are not persuaded that the jury must have had a reasonable doubt about the applicant’s guilt on either charge 5 or 7.
Dealing first with charge 7 (ground 5), issues concerning the credibility of Ms Price and the differences in her account were ventilated before the jury. Even though Ms Price made no allegation of penetration in her first police statement and was equivocal about it at committal, the complaint evidence to AY in the immediate aftermath of the incident was powerful. While Ms Price described herself as being ‘unconscious’ during the events, she explained that her incapacitation did not affect all of her senses and did not affect her memory at all. Next, the jury may well have accepted the defence argument that ‘Vanessa’ did not exist and that Ms Price attempted to exploit the situation for her own financial benefit after the event. However, the defence case that Ms Price feigned incapacity and consented to all sexual acts for the purposes of extracting money from the applicant depended upon her deciding upon that course after learning he was a doctor but before any sexual act occurred. That is, the defence case is that she assumed that if she feigned unconsciousness she would — and in fact did — tempt the applicant to engage in sexual acts which she could later claim were not consensual. The jury may have accepted the prosecution’s characterisation of that notion as ludicrous. Finally the jury question concerning touching of the clitoris may have simply reflected confusion about the legal definition of vagina as including the external genitalia, particularly in light of some of the cross-examination of Ms Price about the nature of the penetration she alleged. But, whatever it reflected, it cannot lead to a conclusion that the verdict was not open on the evidence.
Turning to charge 5 (ground 6), it was clear on the prosecution case that the touching of the vagina on the skin preceded the act of penetration. That is, the applicant first touched Ms Price on her vagina beneath her underwear and then penetrated her vagina with his finger(s). The evidence was that at the time of the act of charge 5 Ms Price attempted to grab the applicant’s hand to stop him but was unable to fully move her arm. Her movement is discernible in the CCTV footage, as is that of the applicant’s hand while it was inside Ms Price’s pants. His hand was there for about one and a half minutes. In accepting Ms Price’s evidence that penetration had occurred, the jury may well have reasoned that in the factual circumstances it was impossible for that digital penetration inside the underwear to have occurred without prior ‘skin on skin’ touching of the vagina. Further, there is no risk that the jury could have understood that any touching of the vagina short of penetration as an alternative charge to charge 7 was indistinguishable from or interchangeable with count 5.
It follows that grounds 5 and 6 must fail.
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[2023] VSCA 228

20 September 2023