Mitchell Benson (a pseudonym)1 v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0166

MITCHELL BENSON (A PSEUDONYM)¹	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, BONGIORNO and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 February 2014
DATE OF JUDGMENT	28 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 51
JUDGMENT APPEALED FROM	DPP v [Benson] (Unreported, County Court of Victoria, Judge Douglas, 19 July 2013).

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Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a non‑parole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Turnbull Lawyers
For the Respondent	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

¹To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

NEAVE JA:

On 29 May 2013 the applicant, Mitchell Benson, was found guilty by a County Court jury of one charge of raping his wife. He was acquitted of charges of intentionally causing injury, recklessly causing injury and making a threat to kill. On 19 July 2013, the trial judge sentenced him to a total effective sentence of seven years imprisonment with a non-parole period of five years. He now seeks leave to appeal against his conviction and sentence.

Background

The applicant had lived with the complainant for 13 years. At the time of the alleged offending they had been married for six years and had four young children, JB, SB, CB and EB, who were 11, 10, 7 and 4 years old, respectively.

The main evidence led by the prosecution was as follows. The complainant said that about a month before the alleged offence, the applicant hit her when she refused to have sex with him. Because the relationship had been a violent one, this was the ‘last straw’ and she told him that she wanted to leave him. They continued sleeping in the same bed for a time, but on Friday 6 May 2011, she told the applicant that she had decided to start sleeping in the spare room.

In the early hours of Sunday, 8 May 2011, the applicant, who had been drinking, entered the spare bedroom, got into bed with the complainant and tried to cuddle her. The complainant told the applicant to ‘get off me’ and jumped out of the bed. The applicant attempted to persuade the complainant to go with him to the main bedroom and the complainant retreated to the kitchen. The applicant pulled her up a short flight of stairs to the bedroom ‘not too forcefully’ and the complainant retreated again to the spare room. The applicant removed the doona and mattress from the bed in the spare room. The complainant got up and stood near a heater and then went down to the kitchen again. She began cooking because they were having guests the following day. Her husband then pulled her up the stairs to the main bedroom again.

The complainant gave evidence that once she was in bed with the applicant, she tried to lie as far away from him as possible, and that he ‘bear hugged her’ so she could hardly breathe. She feigned illness and attempted, again, to retreat to the kitchen. The applicant followed her and forcefully pulled her through the hallway, up the stairs and back into the bed once more. She hit the stairs with her ribs while she was resisting him. The applicant forced the complainant onto her back, knelt over her and pulled off her pyjama pants. The applicant then held the complainant down, with one arm pinned behind her back, and penetrated her with his penis without her consent. While he was doing so he threatened her family. The complainant was screaming and punching him with her free hand while he was having intercourse with her. She saw her son JB standing at the top of the stairs. He said he was calling the police and she told him to do so.

The complainant said that the applicant then kicked the door shut and said ‘go back to bed, you little cunt’ to his son. JB phoned the police. He called out that he had done so and shortly afterwards the applicant stopped having intercourse with the complainant. Both the applicant and the complainant then got dressed and the applicant went downstairs. After having a cup of coffee he went out the back of the house. The police arrived shortly after and the complainant, who was visibly distressed, told them the applicant had raped her.

JB was interviewed by the police and his Visual and Audio Recorded Evidence, or ‘VARE’, was admitted in evidence. JB said that he woke up when he heard yelling and his father telling his mother to get out of her bed and come into the other room and ‘she didn’t want to go into his bed’. He stayed in bed hoping the argument would calm down but then heard his father pulling his mother upstairs. He went up a short stairway towards the main bedroom and saw his father naked on top of his mother and heard his mother yelling ‘get off’. JB also heard the applicant say, ‘no’ and observed that his father ‘just kept on going’. JB then yelled out that he was going to call the police. His mother told JB to do so and he walked downstairs and phoned them.

In cross-examination JB said he now could not remember whether he got to the top of the stairs or whether he saw his father close the bedroom door. A transcript of JB’s 000 call was admitted into evidence. In the call he told the police that his father had called his mother into the bedroom and was trying to rape her and that she was still screaming in the bedroom.

In her VARE, SB said that she was woken by the sound of yelling and heard her father telling her mother to get into bed. Later she heard JB telling her father to stop it and heard her mother telling JB to call the police.

The Crown also called evidence from Ms Sheena Vaneck, a forensic nurse examiner, who examined the complainant on the morning of 8 May 2011 and observed that she had a sore neck and chest, superficial abrasions and bruising.

The applicant did not give evidence at the trial. The defence case was that JB misinterpreted the seriousness of the argument between the applicant and the complainant and that, although the complainant was initially reluctant she had later freely agreed to have sex with the applicant.

In his interview with the police the applicant said that ‘I was that drunk I can’t remember half the stuff’ and that ‘she’d probably know more than what I would’. He did not contradict the complainant’s evidence that she had told him she did not want to go to the main bedroom. He agreed he had removed the doona so she would come into the main bedroom and that he gave her a ‘big bear hug and threw her on the bed’. However he said after initially resisting him the complainant eventually agreed to have sex with him, saying, ’okay then, hurry up and get it over and done with’. He denied that he had raped her, but said ‘I might be forcing myself a bit on her but I didn’t hurt her in any way’.

He conceded that the complainant had yelled ‘get off me’ a number of times before the sexual intercourse took place, and that he had held her down by lying on top of her. He was not asked whether JB had come into the bedroom while he was on top of the complainant, as the complainant alleged, but said that the complainant told him to get off her and ‘that’s I think when [JB] rang up the police and we weren’t quick enough to answer the phone’. He said that they had made up after the police had been called and he ended up having sex with the complainant. He also said that the complainant had told him that if he did not stop she would ring the police and that JB ‘just automatically rang’ and that by the time the police rang back he and the complainant must have missed the call.[1]
[1]In another part of the interview he said that he had gone to the kitchen for a drink and that JB was up and threatened to call the police, because his parents were making too much noise and he couldn’t sleep. He then said that he was upstairs when JB ‘first rang’.

Grounds of appeal

These were as follows:

1The learned trial Judge erred in admitting evidence of past violent conduct by the Applicant because the evidence was not relevant.
2In the alternative to ground 1, her Honour erred in admitting the evidence of the applicant’s past violent conduct in the exercise of her discretion.

The Judge’s ruling

At the trial, the Crown sought leave to admit evidence of prior assaults by the applicant on the complainant. It was argued that evidence of the prior assaults explained the context in which the alleged rape occurred, and was relevant to whether the complainant had freely agreed[2] to have intercourse with the applicant and whether the applicant was aware that the complainant was not consenting or might not be consenting[3] on the night of the alleged offence.
[2]Section 36 of the Crimes Act 1958 (Vic) defines consent as ‘free agreement’.
[3]Crimes Act 1958 ( Vic) s 38.

The evidence on which the Crown sought to rely was that:

· around 1999, after the applicant had been drinking, he had punched her in the face, giving her a black eye and a fat lip;

· around 2000, the applicant kicked the complainant in the thigh;

· in 2001, the applicant struck the complainant in the stomach with the butt of a rifle;

· on another occasion, the applicant punched the complainant in the cheek, causing the complainant to believe it was broken;

· in about 2003, when the complainant was running away from the applicant during an argument, he broke the complainant’s nose;

· in April 2011, after the applicant asked the complainant for sex and she refused, he struck the complainant on the left temple with what she described as a ‘push punch’.

The complainant said that the April 2011 incident was the only occasion on which the applicant assaulted her when she refused to have intercourse with him, but the complainant said that there had been numerous occasions in the course of the relationship when the applicant assaulted her after he had been drinking.

In his record of interview the applicant admitted separate incidents in which he had ‘hit [his] wife years ago’, grabbed her by the hair, threatened her with a gun and that there had been ‘a few intervention orders’ over the past ten years. He also said that he had ‘made a joke’ about ‘fixing her family up’ if she left him. He said he held her and lay on top of her and ‘that’s the only reason I forced myself because I was laying on top of her’.

The Crown had initially filed tendency and coincidence notices seeking to have the evidence of the prior assaults on the complainant admitted for tendency and/or coincidence purposes, but those applications were not pursued. Instead the prosecutor argued that admission of the evidence of the prior assaults was relevant and admissible for the limited purpose of enabling the jury to assess whether the complainant had consented to intercourse and/or whether the accused was aware that the complainant was not consenting or might not be consenting when they had intercourse.[4]
[4]Crimes Act 1958 s 38(2).

In her ruling, her Honour noted the differences between the applicant’s and complainant’s accounts as to the circumstances in which the alleged sexual penetration charge occurred. She said that:

Upon consideration of the complainant’s statement, the evidence of the children, the medical evidence and the record of interview, I accept that, in the circumstances, to present the jury with evidence of disharmony between the parties on one occasion, in circumstances where the relationship had been of 13 years duration, where the complainant asserts that that occasion was the straw that broke the camel’s back and the prosecution case is that there was a progression of violence to the incident, giving the context of the fact that she didn’t consent, is artificial as the prosecution, in the circumstances, is entitled to lead evidence as to the extent of the complainant’s dislike of the accused as a result of his behaviour over a continuing period of years and not just one incident over 13 years, a month before.
As to the issues of the accused’s state of mind and whether the complainant consented, the accused said in the record of interview that she did consent and that he was hopeful of a reconciliation. I read some of the questions and answers in relation to his view of that relationship and his optimism, according to his answers. The basis of the complainant’s opinion or feelings for the accused as to her assertion that she didn’t consent would be distorted by just presenting evidence of one incident over that period where the assumption is it was a normal relationship, except for that incident a week before – a month before, therefore it would be leading evidence in a vacuum.

The trial judge referred to the fact that in the applicant’s record of interview, he did not dispute that he had assaulted the complainant in the past and that intervention orders had been made against him. Her Honour also noted that the applicant claimed that the act of sexual penetration was ‘consensual’, in the sense although the complainant had initially resisted the applicant’s advances, she later ‘calmed down’ and the applicant said they later then ‘made love on top’.[5]
[5]Presumably this referred to his position.

In her ruling her Honour did not explicitly refer to her discretion to exclude the evidence under s 135 of the Evidence Act 2008, (the ‘Act’) because its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the accused, or to the requirement under s 137 of the Act to exclude it if the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused. However it is clear from her Honour’s discussion with counsel prior to making her ruling that she took account of the highly prejudicial nature of the evidence but considered that it was both relevant to and probative of the facts in issue and should be admitted for the limited purpose described in her ruling.

In her jury direction the trial judge gave the jury the usual warnings about the limited use they could make of this evidence. She went on to say that the jury had to consider whether this evidence demonstrated the nature of the relationship between the applicant and the complainant and whether it assisted in understanding the context of the offence ‘as to the state of mind of the complainant and the state of mind of the accused’. The proposed grounds of appeal do not contend that the warning was deficient.

Counsel’s submissions

The applicant argues that the evidence of the prior assaults (except the evidence of the April 2011 assault) was inadmissible under s 56 of the Act , because it was not relevant to the occurrence of the alleged offence. Evidence that the applicant had assaulted the complainant more than once, some years before the alleged rape occurred could not rationally affect (directly or indirectly) the assessment of the probability of the existence of facts in issue,[6] namely, whether the complainant consented to penetration on 8 May 2011 and whether the applicant was aware that she was not consenting or might not be consenting on that occasion. The history of prior violence did not negate apparent consent, because the complainant gave evidence that she had resisted. Nor was it relevant to the question of whether the applicant believed she had consented, because there was no evidence that the applicant had previously used violence to force the complainant to submit to sexual acts. Thus this was not a situation where it was necessary to admit the evidence to explain why the complainant acted in a way which would otherwise appear inexplicable, or to provide a realistic picture of the circumstances in which the alleged offence occurred. The evidence of the prior assaults was properly characterised as evidence of tendency alone, which could not be admitted unless it satisfied the tests set out in ss 97 and 101 of the Act.
[6]Evidence Act 2008 s 55.

In the alternative, counsel for the applicant argued under ground 2 that the judge should have exercised her discretion under s 135(a) of the Act to exclude the evidence, because it was unfairly prejudicial to the accused. Alternatively her Honour was required to exclude the evidence under s 137 of the Act, because its probative value was outweighed by the danger of unfair prejudice to the accused.

The Crown submitted that the evidence was relevant to the presence or absence of consent to sexual penetration. This was apparent from the link which the complainant made between the April 2011 assault (which the applicant conceded was admissible) and the previous assaults. In the complainant’s mind, the April 2011 assault was ‘the straw that broke the camel’s back…and I was afraid he would continue to hurt me’. The complainant’s evidence that she had not voluntarily agreed to sexual penetration did not make the evidence of prior assaults irrelevant, because the jury was confronted with competing versions of the events. The evidence of prior assaults was also relevant to the applicant’s state of mind and whether he had appreciated that the complainant was not consenting or might not be consenting.

Nor did the trial judge err in failing to exclude the evidence under ss 135 or 137 of the Act. Any risk of prejudice was adequately overcome by the clear jury directions as to the limited use which the jury could make of this evidence. Thus there had been no substantial miscarriage of justice as a result of the admission of the evidence.

Conclusion
Was the evidence admissible?

For the sake of convenience I will describe the evidence that the applicant had assaulted the complainant on a number of previous occasions as ‘relationship evidence’, though that description has sometimes been criticised.[7]
[7]See for example R v Clark (2001) 123 A Crim R 506, 566 (Heydon JA).

Evidence of the relationship between an accused and the alleged victim of an offence may be relevant and admissible for the purpose of placing the event which is the subject matter of the offence in context, where such evidence may assist the jury to evaluate the conduct of the complainant and the applicant on the occasion which gave rise to the charge. Where the evidence is of criminal or other disreputable acts committed by the accused, so that there is a danger that the jury will treat it as evidence that the accused has a propensity to commit acts of the kind charged, the judge must warn the jury of the limited purpose for which the evidence can be used. In particular the jury must be told that the relationship evidence cannot be regarded as a substitute for the evidence that the accused committed the charged acts, or for the purpose of showing that the accused is ‘the kind of person’ likely to have committed that offence.[8]
[8]For the full terms of the required warning see R v Grech (1997) 2 VR 609. See also Victorian Criminal Charge Book, Bench Notes, [4.16.7].

Relationship evidence is often admitted in sexual offence cases.[9] Such evidence may be relied upon by an accused to show that the complainant has previously consented to sexual acts, in support of the claim that she or he freely agreed[10] to those acts on the relevant occasion.[11] In the case of child complainants, the Crown may be permitted to call relationship evidence to show that the accused has sexually abused the complainant on occasions other than those relating to the charged offences, for the limited purpose of permitting the jury to evaluate evidence of behaviour which may otherwise appear unlikely or inexplicable.[12]
[9]For some recent examples see R v Bastan [2009] VSCA 157, where evidence that the complainant, who had separated from the accused and had obtained an intervention order against him three years before the alleged offence, was held to be admissible because it was relevant to the likelihood that the complainant had consented to have intercourse with him.
[10]s 36 of the Crimes Act 1958 defines consent as meaning ‘free agreement’.
[11]See R v Bastan [2009] VSCA 157, [45] (Weinberg J). However, where relevant the jury must be directed that they must not regard a person as having freely agreed to a sexual act just because they had freely agreed to another sexual act with that person; Crimes Act 1958, s 37AAA(iii).
[12]R v TJB [1998] 4 VR 621. For a detailed discussion of the authorities see WFS v R (2011) 33 VR 406.

Relationship evidence indicating that an accused has previously been violent to the complainant may be admissible, because it assists the jury to evaluate whether the complainant had freely agreed to sexual activity on the occasion to which the charge relates, or whether the accused knew that the complainant had not consented or might not have consented to having sex on that occasion.

In R v Loguancio,[13] the appellant was convicted of numerous counts of rape and of offences arising from violent attacks on his wife. On appeal he argued that the judge had wrongly admitted evidence of prior uncharged assaults on his wife, including evidence that he had first assaulted her within six months of their marriage, that she was hit or beaten and was black and blue every day thereafter, that she was threatened with death if she left and that she had been strangled with a belt on several occasions. The Crown had not sought to rely on previous uncharged acts of rape, but the complainant had inadvertently testified about one such act. The Court of Appeal held that the judge had not erred in admitting the evidence of the uncharged act of rape for the purpose of placing the charged offences in context, or in telling the jury that it was permissible to have regard to the alleged prior acts of violence for that purpose and particularly for the purpose of explaining why the complainant was ‘passive and submissive’ when he attempted to have intercourse with her.
[13](2000) 1 VR 235, 23 (Callaway JA). It may be noted that to the extent that this was regarded as propensity evidence it was held that its probative value outweighed its prejudicial effect under s 398A of the Crimes Act 1958.

Relationship evidence, involving the commission of prior acts of violence by the accused, may also be admissible where a person is charged with homicide or an offence arising out of the infliction of injury on a victim, because such evidence is relevant in evaluating the accused person’s claim that he or she had an amicable relationship with the victim, or that he or she acted in self-defence. In Wilson v The Queen[14] for example, the High Court held that there had been no error in admitting evidence in a murder trial that the wife of the accused had told him in the presence of a witness that she knew he wanted to kill her, in circumstances where the accused claimed that he had accidentally shot his wife. In R v Mala[15] the Court of Appeal held that evidence of earlier assaults by the accused of the victim in the two years preceding the offence was admissible in his trial for intentionally causing serious injury, because it was relevant to the issue of whether the accused, who was drug affected at the time of the assault, had intended to harm the victim.[16]
[14](1970) 123 CLR 334.
[15](Unreported, Court of Appeal, Brooking, Ormiston, Batt JJA, 27 November 1997).
[16]Evidence of prior acts of violence was held to be admissible in R v Loguancio (2000) 1 VR 235 in relation to the charges of threats to kill, intentionally causing injury and common assault.

By contrast, in R v Tsingopoulos,[17] the Full Court held that, in a murder trial, evidence of hostile statements made by the accused about his wife in 1957 and 1959 was inadmissible, because the lapse of time would prevent a reasonable jury from inferring that the feelings of grievance or resentment expressed in the statements had persisted until that time (the alleged offence occurred in May 1963).
[17](1964) VR 676.

In this case the applicant correctly conceded that the evidence of his assault on his wife when she refused to have sexual intercourse with him only a month before the alleged rape was relevant in assessing the likelihood that she had in fact voluntarily agreed to have intercourse with him, or that he believed that she had done so, on the occasion charged. If the wife had left the applicant after the earlier assaults and had claimed that he had raped her after the separation, evidence of those assaults would also have been relevant as relationship evidence, because it bore on the likelihood that she would have freely agreed to intercourse in these circumstances.

However, despite the appalling nature of the earlier assaults, I consider that the evidence of those assaults was not sufficiently relevant to the nature of the relationship which existed at the time of the alleged rape to the admission of that evidence. There was a lengthy time lapse between the earlier assaults and the alleged rape. Of itself, that time lapse might not have made the evidence irrelevant. As Buchanan JA observed in R v Bastan:

Whether evidence of events bearing upon a relationship of an offender and his victim is too remote depends upon all the circumstances of the case. The time between the events and the commission of the alleged offence is but one aspect of the matter. Although the making of the intervention order and the threats to kill occurred three years earlier, they were significant events in that they revealed the circumstances in which the applicant and the complainant separated.[18]

[18][2009] VSCA 157, [18] (Maxwell P, Buchanan and Weinberg JJA agreeing).

However in this case there was not only a significant time delay between the alleged rape and the earlier assaults, but the complainant remained with the applicant despite the assaults and bore him children after those assaults had occurred. It may be that she did not leave him earlier because she was afraid of him, but there was no evidence that he had assaulted her because she refused to have sex with him, prior to April 2011. The Crown did not seek to call evidence of earlier uncharged acts of rape, which might have been admissible as tendency evidence under ss 97 and 101 of the Act.

In my view the trial judge erred in admitting evidence which described particular assaults, the last of which had occurred in 2003. Such evidence was insufficiently relevant to whether the complainant freely agreed to intercourse in 2011 or whether the applicant was aware she was not consenting or might not be consenting. Even if the judge correctly considered that it had some relevance to the matters in issue, the probative value of this evidence was well outweighed by the danger of unfair prejudice to the applicant.

In reaching that conclusion I note that it may well have been open to the Crown to lead evidence from the complainant that, in the period prior to the alleged rape, she had submitted to having intercourse with the applicant on other occasions because he had forced her to do so, or because she feared he would assault her if she refused him.[19]
[19]Crimes Act 1958 s 36. In such circumstances a tendency notice might well have been required under Evidence Act 2008, s 97.

Was there a substantial miscarriage of justice?

Section 276 of the Criminal Procedure Act 2009 provides as follows:

276 Determination of appeal against conviction
(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.

This means that despite the error which occurred when the admission of evidence of the earlier assaults was admitted, the appeal can only be allowed if the applicant shows that the error resulted in a ‘substantial miscarriage of justice’.

The language of s 276 differs from that in the criminal appeal statutes in force in most other states (the ‘common form’ provisions). Section 276 replaced s 568 of the Crimes Act 1958, which was expressed in similar terms to those statutes, which are based on the Criminal Appeal Act 1907 (UK). The draft legislation was introduced after consultation with a specialist appeals advisory group and consultation with the Court of Appeal by the Department of Justice.

Section 276 was intended to simplify the law, overcoming uncertainties which had arisen in the application of s 568 following the decision of the High Court in Weiss v The Queen.[20]
[20](2005) 224 CLR 300. There is a helpful discussion of the law prior to and following Weiss by Gageler J in Baini v The Queen (2012) 246 CLR 469, 487–488, [51]–[53].

The explanatory memorandum to the Criminal Procedure Act2009 said that:

·A single-tiered test removes much of the complexity of the current provision and is preferred over a two-tiered grounds of appeal and proviso structure;
·the phrase ‘substantial miscarriage of justice’ should remain the ultimate test for determining whether an appeal should be allowed or dismissed;
·there is a presumption that, until the contrary is shown, a trial before judge and jury was fair and in accordance with law. It follows that the onus to persuade the court of the matters required for a successful appeal should be on the appellant;
·errors or irregularities in the trial should result in appeals being allowed when the problem could have reasonably made a difference to the trial outcome; or if the error or irregularity was of a fundamental kind depriving the appellant of a fair trial or amounting to an abuse of process (regardless of whether it could have made a difference to the trial outcome).[21]

[21]Explanatory Memorandum, Criminal Procedure Bill 2008, [101]–[102] (Emphasis added).

In Baini v The Queen[22] a majority of the High Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ, Gageler J dissenting) held that where either s 276(b) or (c) applied an appellant would meet the onus of showing that there had been a substantial miscarriage of justice by showing no more than that

had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant’s conviction was inevitable.[23]

[22](2012) 246 CLR 469.

[23]Ibid, 481 [31].

The majority held that in determining whether there had been a substantial miscarriage of justice, the Victorian Court of Appeal had erred, because it had not asked itself whether the conviction was ‘inevitable’ (that is to say that the appellant would have been convicted, if the error[24] had not been made).[25] No reference was made in the majority judgment to the Explanatory Memorandum or the Second Reading Speech made, when the provisions were introduced in parliament.
[24]The error related to the failure to sever blackmail counts relating to one victim, from blackmail counts relating to the other victim, with the consequence that the jury heard evidence from the second victim that the accused was a stand-over man, which would not have been heard if the counts relating to the first victim had been tried separately.
[25](2012) 246 CLR 469, 481 [32].

By contrast, Gageler J, in dissent, held that, consistently with the legislative intention revealed in the extrinsic materials, the relevant question to be asked in deciding whether there was a substantial miscarriage of justice was ‘is it reasonably possible that the jury that actually convicted the appellant would have acquitted the appellant if the error or irregularity had not occurred’.[26] He would have dismissed the appeal on the basis that there was no reasonable possibility that the applicant would have been acquitted of the relevant charges, if the error had not been made.
[26]Ibid, 493 [66]. In James v The Queen [2014] HCA 6, [79] Gageler J applied the inevitability test. It was unnecessary for the majority to discuss whether there had been a substantial miscarriage of justice, because it was held that the Court of Appeal had applied the correct approach.

In Andelman v The Queen[27] this Court summarised the decision of the majority of the High Court in Baini in the following terms:
[27][2013] VSCA 25. In that case the judge had failed to direct the jury on the use they could make of guilty pleas entered by the co-offenders, who gave evidence against the appellant, and failed to give the jury an unreliable evidence warning under Evidence Act 2008 s 165. The Crown had also failed to provide reasonable notice in writing to the accused of the intention to adduce tendency or coincidence evidence. The accused was unrepresented at the trial.

In allowing the appeal, the majority set out a detailed construction of s 276. The following salient points affecting the disposition of this appeal emerge from the majority’s analysis:
·Section 276 is not to be interpreted solely by reference to the interpretation given to the common form criminal appeal proviso in Weiss v The Queen. Comparing ‘a statute with its legislative predecessor … is only a useful exercise if doing so illuminates the actual text of the new provision’.
·There is no ‘single universally applicable’ definition of a ‘substantial miscarriage of justice’. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are ‘too numerous and too different to permit prescription of a singular test’.
·With respect to ss 276(1)(b)[28] and (c) (with which this appeal is concerned), the types of substantial miscarriage of justice include cases where ‘there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’.
[28]It may be noted that this appeal is concerned with s 276(b.)
·Those paragraphs also cover cases where ‘there has been a serious departure from the prescribed processes for trial’.
·A ‘substantial miscarriage of justice’ may occur where there has been a ‘departure from process’ even if the ‘verdict was open or it is not possible to conclude whether the verdict was open’.
·The question whether there has been a ‘substantial miscarriage of justice’ ‘may be affected by the strength of the prosecution case’. In such cases, however, the Court of Appeal must be aware of the ‘natural limitations that attend the appellate task’.
·A finding that the conviction was ‘inevitable’ is merely ‘relevant’ to the Court’s determination of whether there has been a substantial miscarriage of justice. It does not conclude the issue.
·If it is submitted that the verdict was inevitable, the appellant need show ‘no more than that, had there been no error, the jury may have entertained a doubt’.
·In assessing ‘inevitability’, the Court of Appeal must ‘decide that question on the written record of the trial’.
·In cases such as Baini where evidence has been wrongly admitted or excluded, the Court cannot determine that there has been no substantial miscarriage of justice ‘unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made’.

This reading of the majority’s reasons in Baini demonstrates that s 276 is to be applied on a case-by-case basis, having regard to the particular nature of the error made in the trial. Further, whereas the strength of the Crown case may well be a relevant factor, it is not necessarily determinative.[29]

[29][2013] VSCA 25, [85]–[86] (emphasis in original, citations omitted).

The Court in Andelman remarked that ‘it would seem to follow that the task of a respondent seeking to uphold a conviction in such a case will generally be more difficult under s 276(1) than it was under s 568(1) (post‑Weiss) when the phrase “substantial miscarriage of justice” appeared only in the proviso’.[30]
[30]Ibid [104].

The High Court seems to have taken a different approach in its recent decision in Reeves v The Queen,[31] which involved the application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), which is in similar form to the proviso previously

found in s 568 of the Victorian Crimes Act 1958.[32] In Reeves the trial judge had given an incorrect jury direction as to the elements of the offence. In that case, the plurality said the following:[33]
The conclusion that the applicant’s guilt was proved by evidence properly admitted at the trial was a necessary, but not a sufficient, condition for the dismissal of the applicant’s appeal. The record of the trial, upon which the appellate court bases its conclusion of guilt, includes the fact of the verdict. Where, as here, the legal error at the trial was a wrong direction relating to an element of liability, the significance of the verdict was to be assessed in light of the capacity of the misdirection to have led the jury to wrongly reason to guilt. Bathurst CJ addressed this consideration by asking whether the misdirection deprived the applicant of a ‘real chance’ of acquittal. The question echoes the formulation in Mraz v The Queen: did the error deprive the accused of ‘a chance fairly open’ of acquittal? His Honour’s conclusion, that in the way in which the trial was conducted there was not a ‘real likelihood’ that the jury reasoned to guilt on the basis of the misdirection, was an answer to the question that had been framed in terms of the existence of a ‘real chance’.
In decisions since Mraz this Court has cautioned against reference to judicial expressions that differ from the statutory expression when applying the proviso. The Court of Criminal Appeal was required to dismiss the applicant’s appeal if it considered that no substantial miscarriage of justice has actually occurred. The applicant’s contention that a misdirection concerning an element of liability is necessarily productive of a substantial miscarriage of justice should be rejected. The modifier ‘actually’ makes clear that the appellate court is to determine whether the error in this trial in fact occasioned a substantial miscarriage of justice. This requires consideration of the issues at the trial.

[31][2013] HCA 57.

[32]The New South Wales proviso provides: ‘[P]rovided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’; similarly, the Victorian Crimes Act 1958 proviso in s 568(1) provides: ‘Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’.

[33]Gageler J agreed but reserved his decision as to the nature of the analysis to be adopted in deciding whether the proviso applied.

Reeves was an appeal against an incorrect jury direction, whilst Baini concerned a failure to sever counts from the indictment. However the approach in Reeves appears to impose a less onerous test for determining whether there has been a substantial miscarriage of justice, than the requirement of inevitability, which now applies in determining whether there has been a substantial miscarriage of justice for the purposes of s 276(1)(b). Thus the decision in Reeves produces the counter‑intuitive result that s 276, which according to the Explanatory Memorandum, was intended to ensure that in cases of this kind the appellant bore the onus of showing that the errors or irregularities in the trial ‘could have reasonably made a difference to the trial outcome’, imposes a more onerous test for the purpose of determining whether the error resulted in a substantial miscarriage of justice, than the common form proviso.

For the reasons explained below, I consider that, having regard to the record of the trial, the applicant’s conviction was ‘inevitable’ in the sense required in Baini.

Although the strength of the Crown case is not determinative of the question whether there was a substantial miscarriage of justice, it is relevant that the Crown case was exceptionally strong. The complainant’s evidence that she did not freely agree to intercourse was consistent with the fact that she had told the applicant that she wanted to separate and had moved into the spare room. Standing alone, that evidence did not make it inevitable that the jury would have been satisfied beyond reasonable doubt that she did not subsequently agree to have intercourse with the applicant. However in his police interview, the applicant agreed that he had forced her into the main bedroom, that she was initially ‘yelling her guts out’ and that she had said ‘No’ when he tried to have sex with her. He also agreed that JB had said he would call the police. As soon as the police arrived, the complainant told police that she was raped by her husband and her evidence was not shaken to any material extent when she was cross-examined.

Unlike most allegations of rape, this was not simply a question of whether the jury accepted the complainant or applicant’s evidence as to the presence or absence of consent (that is it was not simply a case of ‘oath against oath’). The complainant’s evidence was supported by the forensic nurse’s evidence that the complainant had abrasions and bruises on her body. JB said he saw his naked father on top of his mother while she was yelling ‘get off’ but that his father ‘just kept on going’.

The conviction was inevitable, despite the applicant’s statement in his record of interview that after the complainant’s initial resistance he had ‘started turning her on and she had changed her mind’ and that she had ultimately agreed to have sex with him by saying ‘okay, hurry up and get it over and done with’.

If penetration was occurring when JB saw the applicant on top of the complainant, both the complainant and JB’s evidence indicated that she was resisting the applicant at that time. The applicant did not claim that she was consenting to intercourse at that time. In his interview with the police the applicant said she was then telling him to get off her, but they had ‘made up’ after JB had told them that he had called the police. In the unlikely event that the jury accepted that JB had observed an act preliminary to penetration, rather than the act of penetration itself, it is inconceivable that they would have accepted that the complainant had consented to have sex with the applicant, (as opposed to simply submitting because of her fear of force) after she had told JB to call the police. Even if the jury accepted the applicant’s evidence that the complainant told him to ‘get it over with’, those words do not indicate that she freely agreed to intercourse. Rather, they suggest that she submitted to sexual penetration after she had been dragged into the bedroom, held down by the applicant lying on top of her and heard him make threats against her family.[34] The jury could not have had any reasonable doubt as to whether she freely agreed to have sex with the applicant.
[34]See Crimes Act 1958, s 36(a) and (b).

Nor do I consider that the jury could have had any reasonable doubt about the applicant’s state of mind. In R v Getachew[35] the High Court considered the effect of the 2007 amendments to the Crimes Act 1958 relating to the required mental element for rape. The plurality observed that:

For present purposes, it is enough to notice that, if an accused asserted, or gave evidence at trial, that he or she thought or ‘believed’ the complainant was consenting, the prosecution may yet demonstrate to the requisite standard either that the accused was aware that the complainant might not be consenting or that the asserted belief was not held. It is to be recalled that, since the 2007 Act, the fault element of rape has been identified as the accused being aware that the complainant was not or might not be consenting or the accused not giving any thought to whether the complainant was not or might not be consenting. The reference to an accused’s awareness that the complainant might not be consenting is, of course, important. An accused’s belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting.[36]

[35](2012) 248 CLR 22.

[36]Ibid [27].

In my view the applicant’s statement in his record of interview clearly indicated that he must have been aware, at the very least, that the complainant might not have been consenting to have intercourse with him or gave no thought as to whether she was consenting or might not be consenting.[37] The complainant had told the applicant she intended to separate from him and was sleeping in a separate room. Despite the fact that she had moved to a separate room, he repeatedly dragged her into the main bedroom after she tried to escape him by going downstairs. She then feigned illness and escaped to the kitchen, where he dragged her back into the bedroom, held her down again, and penetrated her. If, as the applicant asserted, the act of penetration occurred after the complainant told JB to call the police, the applicant must have been aware that she might not be consenting to intercourse.
[37]Crimes Act 1958, s 38 (2).

In these circumstances, it was inevitable that the jury would have rejected the applicant’s claim that he was unaware that she was not consenting or that she might not be consenting when he had intercourse with her. In his police interview the applicant told the police that ‘I might be forcing myself a bit on her, but I didn’t rape her’, ‘I didn’t hurt her’ that he ‘forced her’ by holding her and rolling on top of her and that ‘She’s my wife. I didn’t rape her on purpose’. The applicant’s belief that he was entitled to force the complainant to have intercourse with him, simply because she was his wife, did not amount to a belief that she was consenting. Rather it was an expression of the view that he was entitled to have intercourse with his wife in circumstances where he was aware that she might not be consenting, or gave no thought to that issue, simply because she was his wife.[38]
[38]Section 37 AAA (e) of the Crimes Act 1958 provides that the jury is not to regard a person as having freely agreed to a sexual act just because on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person.

Having regard to the circumstances in which the alleged rape occurred, the fact that the applicant had been able to persuade the complainant to have intercourse with him, on previous occasions, although she was initially reluctant to do so, did not raise any reasonable doubt as to whether the applicant was aware she might not be consenting or gave any thought as to whether she was consenting, on this occasion.

It follows that in this case the wrongful admission of evidence did not give rise to a substantial miscarriage of justice. For these reasons I would grant leave to appeal against the conviction, but dismiss the appeal.

The appeal against sentence

The applicant also applies for leave to appeal against sentence on the sole ground of manifest excess. The applicant was sentenced to seven years imprisonment with a non-parole period of five years.

The applicant submits that the sentence imposed was outside the range of sentences that could be imposed in the reasonable exercise of the sentencing discretion, having regard to the nature of the offence and the circumstances of the offender. He relies on Sibanda v The Queen,[39] where the Court of Appeal reviewed the sentences imposed in a number of rape cases and remarked that the head sentence of six years imprisonment, with a minimum term of three years and six months imposed on an offender for a single count of rape was ‘stern’ but not manifestly excessive, having regard to the circumstances of the offending in that case.
[39](2001) 33 VR 67.

The applicant also relies on Hasan v The Queen,[40] a 2010 case in which the Court of Appeal held that a head sentence of six years’ imprisonment imposed on a stranger who pleaded guilty to raping a sleeping woman, was manifestly excessive, having regard to current sentencing practices. The applicant also argues that the trial judge failed to give sufficient weight to the fact that the offence involved little planning and the applicant had a limited criminal record and good employment history.
[40][2010] VSCA 352.

As the applicant conceded in argument, the circumstances of the offending and the offender in Sibanda were quite different from those in this case. In Sibanda the offender took advantage of a sleeping woman, after she had gone out with a group of friends, including the offender. He was 22, of prior good character and had good prospects of rehabilitation.

There were also significant differences between Hasan, which also involved the rape of a sleeping woman, and the circumstances of the offending in this case. In Hasan, the offender pleaded guilty, was remorseful, had no prior convictions and had had a traumatic past as a refugee from Somalia. A victim who is raped while asleep or unconscious may be severely affected by the fact that she or he does not know precisely what was done to them. However the victim in Hasan was not threatened or subjected to violence, other than the violence necessarily involved in the rape. The Court observed that had it not been for current sentencing practices, the Court would have regarded the sentence of six years’ imprisonment as merciful.

Consistency in sentencing is important. However as this Court remarked in GC v The Queen:[41]

Consistency in this context depends upon identification of the appropriate range rather than upon the application of single instances of cases said to be similar. The range is to be ascertained by the application of the relevant legal principles to the circumstances in which the offences were committed and the character and antecedents of the offender together with an examination of comparable cases and the application of the process of instinctive synthesis.[42]

[41][2013] VSCA 139.

[42]Ibid, [40].

In her sentencing remarks in the present case, the trial judge noted that the accused had demonstrated little insight or remorse about his offending.[43]
[43]DPP v [Benson] (Unreported, County Court of Victoria, Judge Douglas, 19 July 2013) [28]–[30].

In my opinion the sentence of seven years’ imprisonment is not outside the range of sentences which could be imposed in the reasonable exercise of her Honour’s sentencing discretion. The maximum sentence for rape is 25 years, which reflects the seriousness of the offence. Although the offence in this case cannot be categorised as a rape falling into the very worst category of the crime, it was nonetheless a bad example of the offence. The applicant raped the complainant in their home, where she was entitled to feel safe, when their children were present. The applicant subjected his son JB, to the knowledge of his father’s violence to his mother, forcing him to call the police in an effort to protect her. The offender ignored the complainant’s entreaties to stop trying to have sex with her and threatened her family. She had previously obtained intervention orders against him. He had assaulted her only a month previously, when she refused to have sex with him. As the judge said in her sentencing reasons:

He was aggressive, intimidating, and overall could be described as behaving as a violent oaf. [the complainant] is considerably smaller physically than the prisoner, at the time weighing 48 kilograms. At the time she was raped she was very vulnerable as she was asleep when the prisoner went into her bed. She was at home and she was at home at a time when her small children were also asleep, around 4 am in the morning.

There was a degree of planning involved. After the prisoner returned from the football he went to his shed where he slept for around three hours. He then into the house, had a soft drink, had a shower, and then went to where [the complainant] was as he was then determined to have sex with her. He located her in the spare room, and removed the bed clothes from her bed. Also he turned the heater off on the basis she would be likely to be cold and thus go to the main bedroom. On around four occasions he pulled or dragged her back to where he wanted her to be. The distance is relatively long from the kitchen where she went, to the main bedroom. I have referred to the pulling or dragging not because it was particularly violent but because it showed that the offence of rape could not be said to have been spontaneous. As I said, there was some degree of planning.[44]

[44]Ibid [25]–[26].

JB showed great courage in standing up for his mother and calling the police. As the complainant’s victim impact shows, the applicant’s wife and children have suffered significant emotional trauma as a consequence of the offending. The applicant also has prior convictions for recklessly causing injury, assault with a weapon, breaching intervention orders and resisting police. Subsequent to his arrest, the applicant pleaded guilty to four charges of breaching an IVO.

The judge took proper account of the applicant’s good employment history and the fact that this would be the first period that he would spend time in custody. She noted that his rehabilitation depended upon him completing a drug and alcohol program and a violence program.

For these reasons, leave to appeal against the sentence is refused.

BONGIORNO JA:

I agree with Neave JA that the evidence of a prior series of incidents of violent behaviour by the applicant towards the complainant spread over many years (other than one event conceded by him to be admissible) ought not to have been put before the jury. The only qualification I would place on my adoption of her Honour’s

reasons for reaching that conclusion relates to paragraph 39 of her judgment. There, her Honour suggested that the Crown may have been entitled to lead evidence of prior episodes of conduct by the applicant which amounted to rape. As this issue did not arise in this case I express no opinion as to the possibility to which her Honour refers.

My substantial departure from Neave JA’s judgment concerns the consequence which should follow her Honour’s determination that the challenged evidence was, in fact, inadmissible. In my opinion the wrongful admission of that evidence resulted in a substantial miscarriage of justice, thus requiring this Court, pursuant to s 276(1)(b) of the Criminal Procedure Act 2009, to grant the applicant leave to appeal, to uphold his appeal and to order a new trial.

The direct evidence of the actus reus of the offence of rape in this case came from the oral evidence of the complainant, that of her and the applicant’s 11 year old son and from answers given by the applicant in the course of his interrogation by the police. The complainant described the event in detail, including the conduct of the applicant immediately before it took place. Specifically, she said that the act of penile/vaginal penetration to which she did not consent occurred when the applicant was on top of her; both of them being on the bed in their bedroom. She said that that act was still occurring when their 11 year old son appeared at the bedroom door. She said it concluded shortly afterwards; after the son said he was going to call the police. Clearly, if accepted, this evidence would have been sufficient to sustain the charge of rape.

The applicant’s version of these events has to be distilled from his record of interview. That record of interview was long, often non‑sequential, in places rambling and contained a number of possible or actual inconsistencies. He readily conceded that he had had sexual intercourse with the complainant up to and including ejaculation. When it was put to him that the complainant had made it clear that she did not want to have sex with him, he replied ‘she always said that’ and then went on to say ‘usually you can bring her around by touching her’. This, he said, ‘started turning her on and she changes her mind. We end up having sex’. He said that ‘a lot of times’ the complainant says ‘hurry up, just do it, get it over’. In saying this he was referring to past behaviour of the complainant during the substantial period of their relationship. As to the actual events alleged to constitute the rape of which he was accused, the applicant said he did not rape the complainant although he conceded that he ‘might be forcing myself a bit on her …’ which he explained as ‘…by laying on top of her’. After the event, according to the complainant, the applicant and she had coffee together before the police arrived, called by the couple’s son. Although the applicant conceded that the complainant said words like ‘don’t take too long’ and ‘hurry up. I don’t want it, but just do it’, he said that she agreed to the sexual activity in which they engaged.

Of particular significance, in the present context, is the fact that the applicant told the police that although when he first approached the complainant for sex at the relevant time she refused saying ‘oh, get off me … get off me’ he went on

…and that’s I think when [JB] rang up the police and we weren’t quick enough to answer the phone. Then we sort of made up after that. And ended up having sex with her. (emphasis added)

This passage in the applicant’s record of interview places the act of sexual penetration, temporally, after the couple’s son had called the police which, as the complainant conceded in cross-examination, was also what she had said at the applicant’s committal proceeding, although at the trial she placed it somewhat earlier.

The evidence of the couple’s child as to his observations when he went to his parents’ bedroom on hearing ‘yelling’ by both of them corroborated the evidence of the complainant, at least to some extent. However the child also said that he was only ‘there’ — presumably referring to the bedroom — ‘for about five seconds’. He did not (and probably could not have) given any evidence as to whether penetration had occurred before he got to his parents’ room. He said that immediately after he left the bedroom he went to the ‘lounge room and dining room area’ where he called the police.

Nothing in the child’s evidence establishes a lack of consent to intercourse by the complainant after he (the child) left the bedroom. Nor does his evidence, of course, establish a lack of belief in consent in the applicant at the time he asserts that the complainant and he had consensual intercourse.

In the course of the applicant’s trial a series of historical violent events, commencing in about 1999, in which he was the perpetrator and the complainant the victim, were put before the jury. As Neave JA has explained, this evidence was inadmissible because it was insufficiently relevant to the issue before the jury —whether the complainant was consenting to sexual intercourse and/or whether the applicant might have believed she was consenting. The prejudice to the applicant by this evidence having been put before the jury is obvious. As her Honour observed, even if it had been relevant, its probative value was well outweighed by the danger of that unfair prejudice, necessitating its exclusion.

That the Crown, in this instance, had a strong case against the applicant cannot be gainsaid, although I would not describe it as being ‘extremely strong’. Certainly there was no inevitability about the result, whether the evidence now ruled inadmissible had been admitted or not. Its admission placed the applicant at a significant unfair disadvantage, which may (or may not) have been responsible or partly responsible for the jury’s verdict. It is impossible to say whether, absent that evidence, he would still have been convicted. As the majority in the High Court said in Baini v The Queen,[45] to which Neave JA has referred:

But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made. [Footnotes and citation omitted.]

[45](2012) 246 CLR 469, [32].

A conviction in this case was not inevitable. The jury may well have had a reasonable doubt as to consent or at least as to the applicant’s lack of belief in consent. The applicant did not get the trial he was entitled to by law. His version of events, if accepted, was capable of raising a doubt as to his belief that the complainant was not consenting or might not be consenting. Much would depend on whether the jury accepted that a long period of cohabitation with the complainant had included occasions when consensual sexual intercourse had been preceded by unwillingness or even outright rejection on her part.

I would grant the applicant leave to appeal and uphold his appeal. There should be a new trial.

COGHLAN JA:

I agree that ground 2 should be upheld for the reasons set out by Neave JA.

The prosecutor’s decision to not attempt to rely upon the evidence as tendency evidence was correct. Since the evidence was not tendency evidence, great care needed to have been taken in deciding whether or not the evidence could be relationship evidence. That was particularly so in this case, when much of the relationship evidence was remote in time.

The defence had agreed that the evidence of events in April 2011 was admissible. It followed that, without needing to go into detail, the April incident was the ‘straw that broke the camel’s back’.

In my view, this case was about the applicant’s belief in consent, because the case put in favour of consent could not be made out. Put at its highest, the applicant’s case for consent was based upon submission, which was not free agreement.[46]

[46]Crimes Act 1958 (Vic) ss 36 and 37AAA.

The question of belief in consent is entirely subjective. Reasonableness of the belief goes only to the question of whether or not the belief was held.[47]
[47]Crimes Act 1958 (Vic) s 37AA.

The drunken applicant treated his wife disgracefully, but the question of whether he might have believed she was consenting (or, more significantly, whether the prosecution had proved that he knew or believed that she was not consenting) is a matter for the jury.

Once the wrongly admitted material was before the jury it was capable of influencing that decision. To my mind, it follows that it cannot be said that the conviction was inevitable in the way that expression was used in Baini v The Queen[48] and Andelman v The Queen.[49]
[48](2012) 246 CLR 469.
[49][2013] VSCA 25.

I would allow the appeal and order a new trial.

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Mitchell Benson (a pseudonym)1 v The Queen [2014] VSCA 51

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28 March 2014