Mulligan (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0068

AARON MULLIGAN (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	REDLICH, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2017
DATE OF JUDGMENT:	2 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 94
JUDGMENT APPEALED FROM:	DPP v [Mulligan] (Unreported, County Court of Victoria, Judge Gamble, 21 September 2015 (Conviction); 17 March 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Rape, intentionally causing injury, making threat to kill and false imprisonment – Charges relating to two complainants – Evidence not cross-admissible – Joint trial conducted despite risk of prejudice – Whether failure to sever led to miscarriage of justice – Whether trial counsel ‘flagrantly incompetent’ – TKWJ v The Queen (2002) 212 CLR 124, Knowles (a pseudonym) v The Queen [2015] VSCA 141, Nicholls v The Queen [2016] VSCA 250, Patel v The Queen (2012) 247 CLR 531 discussed – Whether trial judge’s directions sufficient to ‘cure’ potential prejudice – No obligation to direct jury as to each piece of evidence as against each charge/complainant – Distress evidence not ‘intractably neutral’ merely because it supports multiple hypothesises – Post-offence conduct admissible as supporting inference of awareness of guilt – R v Ciantar (2006) 176 A Crim R 504 and R v Mocenigo [2014] VSCA 231 distinguished – No forensic disadvantage direction required despite one being sought at trial – Jury’s verdict on charge 3 not ‘unsafe and unsatisfactory’ – R v Ferguson (2009) 24 VR 531 applied – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 13 years and 4 months’ imprisonment with a 10 year non-parole period – Whether individual sentences and total effective sentence manifestly excessive – Individual sentences within range that was reasonably open – Cumulation between charges 3 and 4 and on charge 7 manifestly excessive – Leave to appeal granted, appeal allowed, sentences set aside – Applicant resentenced to 11 years and four months’ imprisonment with non-parole period of eight years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Johns	Theo Magazis & Associates
For the Crown	Mr B Kissane QC with Ms S K Borg	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA
PRIEST JA:

Convictions, sentences and grounds of appeal

Following a trial in the County Court, on 21 September 2015 a jury convicted the applicant of rape[2] (three charges — charges 3, 4 and 7), intentionally causing injury[3] (two charges — charges 1 and 5), making a threat to kill[4] (one charge — charge 8) and false imprisonment[5] (one charge — charge 9). The offending involved two complainants, ‘MG’ and ‘ST’, and three separate occasions, being 6 November and 2 December 2012 (MG), and 21 September 2013 (ST).
[2]Crimes Act 1958, s 38(1). The maximum sentence is 25 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum sentence is 10 years’ imprisonment.
[4]Crimes Act 1958, s 20. The maximum sentence is 10 years’ imprisonment.
[5]A crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years’ imprisonment.

On 17 March 2016, the trial judge sentenced the applicant to a total effective sentence of 13 years and four months’ imprisonment, with a non-parole period of 10 years, according to the following table:

Charge Offence Sentence Cumulation

1 Intentionally causing injury[6] 12 months 4 months

3 Rape 7 years Base

4 Rape 7 years 2 years

5 Intentionally causing injury[7] 30 months 12 months

7 Rape 7 years 30 months[8]

8 Making a threat to kill 18 months 6 months

9 False imprisonment 9 months —

Total effective sentence 13 years and 4 months’ imprisonment

Non-parole period 10 years

Pre-sentence detention 874 days

Other orders
· Pursuant to s 6F of the Sentencing Act 1991 sentenced as a serious sexual offender on charges 7 and 8.

· Disposal order with respect to property (claw hammer; hammer; hair extension; screw driver).

· On charges 3, 4 and 7, registration for life under the Sex Offenders Registration Act 2004.

· Forensic procedure order under s 464ZF(2) of the Crimes Act 1958.

[6]No verdict was taken on charge 2, an alternative charge of recklessly causing injury.
[7]No verdict was taken on charge 6, an alternative charge of recklessly causing injury.
[8]Strictly speaking, the judge should have ordered a measure of concurrency upon the sentence on this charge and charge 8 (rather than cumulation), since he was sentenced as a serious sexual offender on these charges. See s 6E of the Sentencing Act 1991.

The applicant seeks leave to appeal against conviction on the following grounds:

1.A substantial miscarriage of justice occurred due to a joint trial taking place involving the evidence relating to both complainants.
2.The learned Trial Judge erred in giving inadequate separate consideration directions in the running and during his charge, given the circumstances of the case.
3.The learned Trial Judge erred in giving an inadequate ‘other misconduct’ direction in that he:
(i)Failed to give an anti-tendency reasoning direction; and
(ii)Failed to identify all of the misconduct or ‘bad character’ evidence that require direction;
— in circumstances where there were substantial and compelling reasons to do so.

4.The learned Trial Judge erred in his directions as to the use that could be made of Distress.
5.The learned Trial Judge erred in failing to give a Forensic Disadvantage direction.
6.The learned Trial Judge erred in his directions as to the use that could be made of Incriminating Conduct.
7.The jury’s verdict of guilt [sic] on charge 3 is unreasonable or cannot be supported having regard to the evidence.

As to sentence, the applicant seeks leave to appeal on a single ground, supported by several ‘particulars’:

1. The learned sentencing judge erred by:
(a) imposing individual sentences;
(b) making orders for cumulation; and
(c) imposing a non-parole period;
that are, in all the circumstances, was manifestly excessive.
PARTICULARS
(i) The sentences imposed on charges 3 and 4 were outside the range for like offending;
(ii) The sentence imposed on charge 7 was outside the range, particularly having regard to the sentences imposed on charges 3 and 4;
(iii)The sentences imposed upon charges 1 and 5 were outside the range for injury offences of this type;
(iv)The sentence imposed upon charge 8 fell outside the range for the offence of threat to kill in these circumstances;
(v)The orders for cumulation resulted in a head sentence that exceeded the overall criminality encompassed in the totality of the offending;
(vi)The sentences imposed and cumulation order can only be explained if a degree of double punishment has seeped into the sentencing process.

In our opinion, leave to appeal against conviction should be refused. However, we would grant leave to appeal against sentence, and allow the appeal for the reasons set out below.

Overview of the facts
MG — 6 November 2012 (Charge 1, intentionally causing injury)

MG and the applicant had been in a relationship. On Melbourne Cup Eve, 6 November 2012, they argued. MG left the applicant’s house. The applicant followed her and tackled her to the ground, causing her to graze her shoulder on the pavement. He then got on top of MG, put one hand on her throat and the other on her face. At one point he threatened to punch her. The incident ceased when a friend of the applicant’s intervened.

In addition to the grazes to her shoulder, MG suffered injury to her larynx, causing her to have a hoarse voice for a number of days.

The applicant agreed in his evidence at trial that an incident had occurred in the early hours of 6 November 2012, but he denied assaulting MG.

MG — 2 December 2012 (charges 3 and 4, rape)

MG resumed her relationship with the applicant. On 2 December 2012, she was staying at the applicant’s house. She went to sleep and was awakened by the applicant coming into the bedroom. The applicant grabbed MG’s hair, and told her that she was going ‘to suck his cock’. He then forced his penis into her mouth and throat (charge 3). The applicant then swung MG’s body around, pushed her knees to her chest and penetrated her vagina with his penis (charge 4). MG was screaming and crying, and trying to resist the applicant.

The following morning MG told the applicant that what he had done was called ‘rape’, but the applicant demurred. He said, ‘It wasn’t rape, it would have been rape if I had fucked you up the arse but I didn’t’.

At trial, the applicant denied that these incidents occurred. The defence asserted that these incidents could not have occurred on 2 December 2012, and relied on ‘Facebook’ correspondence, telephone records and texts, to rebut the allegations of rape.

ST — 21 September 2013 (charge 5, intentionally causing injury; charge 7, rape; charge 8, making a threat to kill; and charge 9, false imprisonment)

ST went to the applicant’s house to discuss an allegation that she had stolen drugs from him.

Soon after ST arrived, the applicant, who appeared angry, grabbed ST’s telephone and, while she was seated on the couch, slapped her a couple of times. He became more aggressive, and said to ST, ‘be a good little slut and come and suck my cock’. He then straddled ST, unzipped his pants and shoved his penis into the complainant’s mouth (charge 7). ST bit the applicant’s penis.

The applicant flew into a rage and hit ST to the back of the head and the forehead with a hammer. She retreated to the study. The applicant followed her and smashed a clock against the back of her head. He also stomped on her chest and stomach. Later, when ST was curled up on the floor of the kitchen trying to protect herself, the applicant kicked her (charge 5).

When the applicant was hitting ST with a hammer and was stomping on her, the applicant said, ‘You’ve destroyed me, you’ve destroyed me and you’re going to die tonight’. Later, the applicant asked ST if she could see the devil. She replied that she could and he was in front of her. The applicant then said, ‘Yes, and you’re going to die tonight’ (charge 8).

During his attack on ST, when ST was crawling towards the laundry the applicant made sure the door was locked to prevent ST from escaping (charge 9).

ST managed to escape through the front door a short time later. Neighbours heard ST’s cries of distress. She sought help from one of the neighbouring properties by scaling the fence. The applicant then left the house, not to return for days. Several neighbours gave evidence of ST’s cries for help, her distress, her injuries and her pleas that the applicant was ‘going to kill me.’

The applicant denied ST’s account, the defence case being that ST had been behaving erratically. All the applicant did was try and calm her. ST received her injuries by falling down the steps and scaling the fence. The applicant further explained that he left the premises looking for ST.

Ground 1 — Conviction — Failure to sever the indictment
Applicant’s submissions

The applicant submitted that by reason of there having been a joint trial, that is, a trial involving the allegations made by both MG and ST, there had been a substantial miscarriage of justice.

The crux of the applicant’s argument before this Court was that the particular defence that he ran at trial, namely that the complainants were ‘women scorned’, did not require that there be a joint trial. Rather, it was submitted, there should have been separate trials, each involving one of the complainants.

In that regard, it was submitted that the defence that was ultimately run, namely that both complainants had a motive to fabricate allegations of rape against the applicant, and that MG had been prompted into making her complaint by learning of ST’s allegations, could have been advanced without the overwhelming prejudice associated with the conduct of a joint trial.

It was further submitted that the fact that the applicant had given firm instructions to his trial counsel not to seek separate trials should not be a barrier to the success of this ground. It was said that trial counsel had a duty to reject the applicant’s instructions in that regard, and not to acquiesce in what was plainly a destructive course. If trial counsel could not make the applicant see sense, the only course properly open to him was to withdraw from the case.

In further support of that latter submission, it was said that whether to seek separate trials was a purely forensic decision, and therefore solely a matter for counsel. It was not a matter upon which counsel should be bound by instructions.

It was common ground below that the evidence relating to each complainant was not cross-admissible. The trial judge had recognised the importance of this by giving the jury the following separate consideration direction immediately prior to ST giving evidence:

Before the second complainant, [ST] is called I want you to clearly understand that what one complainant alleges about what [the applicant] did to her is not admissible in respect to the case involving the other complainant. So, as a matter of law, you must not take into account any of the evidence from one complainant on which the prosecution rely for the charges relating to that complainant when considering whether [the applicant] is guilty of any of the charges relating to the other complainant.

It was submitted that notwithstanding the force and apparent clarity of this direction, the jury’s exposure to the detailed allegations made by both complainants created irreparable prejudice to the applicant.

More specifically the applicant submitted that the ‘trial’ concerning the allegations made by MG miscarried by reason of:

·MG’s credibility being impermissibly enhanced by the accusations made by ST;
·the applicant’s possession and use of ‘ice’ having been an integral part of ST’s allegations, but being utterly irrelevant so far as the charges relating to MG were concerned;
·ST’s allegations led to evidence being given by MB, another woman with whom the applicant had been in a relationship. She was pregnant at the time to him. MB’s evidence, though irrelevant so far as MG was concerned, impermissibly supported and enhanced MG’s credibility;
·by reason of the graphic and serious nature of ST’s allegations, a considerable body of bad character evidence was introduced into that part of the trial concerning MG;
·the danger of impermissible coincidence or tendency reasoning that was necessarily implicit in the case; and
·the credibility of the applicant’s account in his record of interview with police, and ultimately his credibility with regard to the evidence he gave concerning MG, was severely damaged by ST’s allegations.

27 It was submitted that the ‘trial’ concerning the allegations made by ST miscarried by reason of:

·ST’s credibility being impermissibly enhanced as a result of MG’s allegations being placed before the jury;
·evidence of the applicant’s bad character having been introduced into the trial concerning ST’s allegations, when that evidence of bad character concerned only the applicant’s treatment of MG;
·the fact that the applicant ran an entirely implausible ‘collusion’ defence, at least as regards ST, which simply accentuated the strength of her allegations;[9] and
·the danger of impermissible coincidence or tendency reasoning that was necessarily implicit in the case.

[9]This was plain from the evidence regarding ST’s immediate complaint, her distress, her documented injuries, the attendance of police, her hospitalisation and the applicant’s flight, none of which could have been the product of any ‘collusion’ between ST and MG.

To recapitulate, the applicant submitted that the separate consideration direction given to the jury, set out at para [24] of these reasons, was insufficient to guard against both impermissible reasoning, and the very significant prejudice occasioned by a joint trial.

The ‘women scorned’ defence

In his record of interview, the applicant specifically raised what was described in the trial as the ‘women scorned’ defence, but did so in what he now contends was an ‘oblique and ungainly fashion’.[10]
[10]This was the description given to this defence in paragraph 3.9 of the applicant’s written case .

The passages in the record of interview in which this ‘defence’ was advanced include the following:

A 48Now, I have never touched [MG], never raped [MG]. [MG] is a woman scorned because she can’t have me. She has been tainted by [ST], who has been tainted by a young girl called [MB] because [MB] told both of them she’s having my baby. So they’ve gotten — and banded together. These two women are arch enemies. They have never spoken. They refer to each other as ‘the slut’ and ‘the whore’. I can show you text messages galore referring to each other as ‘the slut’ and ‘the whore’ and then suddenly they’re having coffees and playing dress-ups on Facebook in [ST’s] bedroom with photos posted for me to see. They’ve put lists up on [MG’s] Facebook of names of the supposed women I’ve had sex with. This is a conspiracy between [ST] and [MG] to tarnish my name for no apparent reason whatsoever, other than the fact that they can’t be with me.
Q 49O.K.
A[MB] has also posted a — a post that says, ‘There can only be one. I’m feeling lucky.’ This is a conspiracy. Three females fighting for one male and if they can’t have him, they’re gunna put him in gaol. It’s a joke. There is no rapes. [MG] has been back to my place, attempting to make up with me on two occasions. One occasion was at Christmas. She lied to her family, she lied to her daughter, she lied to everybody that she was with me. She spent Christmas with me and then left. She came back at Easter time. We went to a party. It was a market reunion party. We went together. She texted her little gay friends and family that she was going to this party and was frightened of going to this party because I was going to be there.
Q 50Mm.
AShe slept with me the night before, yes, consensual sex, in April.
Q 51April what year?
AThis year.
Q 52O.K. There’s no need to get – – –
AI’m — I’m pissed off. Sorry, Rhett, this is bullshit.
Q 53Yes, I understand, but – – –
AIt is actually bullshit. I’m being thrown in gaol for women being scorned. Sorry, mate, it doesn’t cut it with me and if you were in my position, you’d be just as angry.
Q 54I understand.
AO.K.

It was submitted that the ‘women scorned’ defence, involving collusion between MG and ST, was hopeless from the start. This was primarily because ST knew nothing of MG’s allegations when she complained to the police of having been raped. It was clear that MG did not herself make any complaint of rape to the police until after she learned of ST’s allegations against the applicant from MB. This was after ST had gone to the police. Thus, although it could be said that MG had been prompted to allege rape after she learned of ST’s allegations, there was nothing to suggest collusion between the two women at the time ST went to the police.[11]
[11]The evidence was that MG complained about the applicant’s assault and rape of her to four people between late 2012 and early 2013. However, MG did not speak to MB or ST regarding any of these matters until after ST had made a formal statement to police.

It was submitted that, at best, there may have been some slight forensic advantage to the applicant in pursuing the line that MG had either concocted or exaggerated her account after she became aware of ST’s allegations. However, this strategy did not necessitate a joint trial. That particular defence could have been run in the context of a separate trial concerning MG alone. The joint trial meant that the jury were left with both the record of interview (containing the applicant’s wild assertions) and his evidence at trial,[12] which would have been seen by the jury as implausible, if not logically impossible.

The legal principles governing complaints regarding conduct of trial counsel

[12]In his evidence, the applicant did not go quite as far in relying upon collusion as he had in his record of interview. Rather, he made a series of assertions disparaging the two complainants and MB, but the overall effect of his evidence would not have been significantly different to that which would be garnered from his record of interview.

The legal principles that govern complaints of incompetence on the part of trial counsel are well established. The starting point must be the decision of the High Court in TKWJ v The Queen.[13] There, the accused was charged with various sexual offences against the son and daughter of a woman with whom he was then living. In order to enable separate trials to be conducted, the indictment was amended to allege offences only against the son.
[13](2002) 212 CLR 124.

In the course of the trial, counsel for the accused informed the prosecutor that he intended to lead evidence of his client’s good character. The prosecutor replied that, in that event, he would seek to call the daughter to give evidence about the allegations about her. As a result, no character evidence was led.

In his judgment, McHugh J explained the relevant principles governing a ground of this nature as follows:

Where an appellant contends that the conduct of his or her counsel has caused a criminal trial to miscarry … the appellant carries a heavy burden. This is a consequence of the adversarial nature of our legal system and the role and function of counsel. Criminal trials are not inquisitions. They are contests ‘in which the protagonists are the Crown on the one hand and the accused on the other’. Ordinarily, a party is held to the way in which his or her counsel has presented the party’s case. That is because counsel is in effect the party's agent. Counsel is ‘ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted’. The discretion retained by counsel in the running of a case is very wide. …
But how does a court of criminal appeal determine whether counsel’s conduct of the trial has led to a miscarriage of justice? By what standards is counsel’s conduct judged? And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict? The unattractive answer to the latter question must be that it depends on what counsel did or did not do.
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict … No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.
But in other cases — perhaps the majority — the conduct of counsel — although irregular — will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.
…
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, ‘whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue’. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, ‘it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence’. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel’s conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice.[14]

[14]Ibid 147–50 [74]–[77], [79]–[80] (citations omitted).

In Knowles (a pseudonym) v The Queen,[15] the issue was whether trial counsel’s failure to adduce certain evidence that was said to be exculpatory gave rise to a miscarriage of justice.
[15][2015] VSCA 141.

This Court said:

TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel’s ‘flagrant incompetence’, what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why — that is, the alleged incompetence of counsel — the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of — it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence – was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.[16]

[16]Ibid [131] (citations omitted) (emphasis in original).

Recently, in Nicholls v The Queen,[17] the facts were as follows. The appellant was convicted of two charges of intentionally causing serious injury. By analogy with what occurred in the present case, trial counsel in Nicholls specifically elected not to have the charges tried separately. It was contended on appeal that the joint trial of the charges had resulted in a substantial miscarriage of justice.
[17][2016] VSCA 250.

President Maxwell dissented. His Honour would have allowed the appeal. He noted that it was common ground that the question for determination was whether, viewed objectively, trial counsel’s forensic decision not to seek separate trials could be explained on the basis that it resulted or could have resulted in forensic advantage.[18] He concluded that there was only a ‘modest’ forensic advantage, at best, to be gained by adopting the course of having a joint trial, and a grave disadvantage in doing so. For that reason, there should be a new trial.
[18]Ibid [3].

Justices Osborn and Santamaria disagreed. They recognised that there were risks associated with having the two charges dealt with together, but noted that trial counsel had given that matter careful consideration, and had eschewed any application for severance.

Their Honours said:

The Court will be slow to identify that there has been a miscarriage of justice where the particulars of the alleged miscarriage reflect the deliberate choice of defence counsel.[19]

[19]Ibid [70].

They referred in that regard to R v Birks,[20] where Gleeson CJ had formulated the relevant legal principles as follows:

2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[21]

[20](1990) 19 NSWLR 677.

[21]Ibid 685.

Justices Osborn and Santamaria then referred to Nudd v The Queen.[22] There, Gleeson CJ, by this time on the High Court, expanded upon what he had said some years earlier when Chief Justice of the New South Wales Supreme Court, in Birks. Chief Justice Gleeson explained in Nudd:

A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. ... It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function.[23]

[22](2006) 80 ALJR 614.

[23]Ibid 618–9 [9].

His Honour added:

The reluctance of courts of criminal appeal to enter upon an assessment of the performance of trial counsel is well–founded in considerations both of principle and of pragmatism. That reluctance is reflected in the way in which courts respond to an argument that there has been a miscarriage of justice arising from the incompetence of counsel. Such arguments are becoming increasingly common. Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or her own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice.[24]

[24]Ibid 619–20 [12].

Justices Gummow and Hayne jointly said, in Nudd:

In this case, on any assessment, whether subjective or objective, counsel’s conduct was incompetent to a serious degree. So too, on either a subjective or an objective assessment, some at least of counsel’s conduct cannot be rationally justified or explained, although perhaps it can be said that the overstatement of the matters required to be proved by the prosecution may have contributed to the appellant’s counsel’s further and significantly greater overstatement of them. That is not however the end of the matter. Was the appellant’s trial a fair one in all of the circumstances? …
In the end we have come to the conclusion that the appellant was not deprived of a chance of an acquittal despite the incompetence of his counsel at the trial. This is so because we consider the case against the appellant to have been a strong one, and indeed one which was effectively unanswerable.[25]

[25]Ibid 644 [158]–[159].

In Patel v The Queen, French CJ, Hayne, Kiefel and Bell JJ explained:

The respondent submits, nevertheless, that there was no miscarriage of justice, in the sense of a lack of fairness to the appellant, because the appellant did not object to much of the evidence and did not seek to make it the subject of any particular directions. Certainly there must be exceptional circumstances for the Court to grant special leave to appeal where an applicant did not object at trial to the tender of evidence which is subsequently found to have been improperly admitted. Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel’s decision for the most part will not be relevant, for it is the fairness of the process which is in question.[26]

Application of relevant legal principles

[26](2012) 247 CLR 531, 562 [114] (citations omitted) (‘Patel’).

It was submitted that it was necessary for this Court, in dealing with ground one, to consider whether the applicant had been deprived of the chance of an acquittal by reason of the course taken by trial counsel in not seeking separate trials. Plainly, so far as trial counsel was concerned, this was a deliberate decision taken in full knowledge of the dangers posed by having a joint trial.

That is evidenced by the fact that trial counsel, at the invitation of this Court, provided an affidavit affirmed on 26 March 2017, explaining what had occurred at trial, regarding the decision not to seek separate trials. He stated that he had been briefed very late in the piece, and only after previous counsel had suddenly and unexpectedly become unavailable. He had not taken part in any pre-trial hearings. He had played no role in drafting the defence response to the prosecution opening.

Trial counsel said that the applicant had given him ‘definitive and robust’ instructions that he was innocent of all charges brought against him. The applicant had instructed him that he wished to give evidence in his own defence. The applicant had told him that MG’s allegations had been made simply, and vindictively, to support ST’s complaint. He insisted that both complainants, as well as MB and other witnesses, were lying, and were doing so essentially to get back at him.

Trial counsel said that he advised the applicant a number of times that an application should be made for separate trials. However, the applicant rejected his advice. Instead, the applicant gave clear instructions that not only would he give evidence in his own defence, but that he considered that it was only by doing so that he would be able to disprove the fabrications of the ‘women scorned’.

Trial counsel said that he warned the applicant of the dangers posed by a joint trial. He added that he believed that previous counsel, who had belatedly become unavailable, had given the applicant exactly the same advice. He went on to say that the applicant explained that he believed that if the matters were heard separately, he would be unable, as effectively, to cross-examine the key witnesses against him.

In particular, the applicant was concerned that, if there were to be separate trials, he would be unable to put to MG that she had only herself complained to police after learning that ST had done so. It was his belief that he would be acquitted of all charges if he were able to persuade the jury that there had been collusion between MG, ST and MB, and that there was a solid basis upon which he could do so.

In response to trial counsel’s affidavit, it was submitted before this Court that it reflected an abdication on the part of counsel of his duty to insist that the forensic decision as to whether there should be separate trials should rest with him alone, and not with the applicant.

It was submitted that the strategy ultimately followed at trial, at the applicant’s insistence, had no rational basis. The answers that he gave in his record of interview, suggesting that the charges were laid as a result of collusion between MG and ST, made no sense. Given that ST made her allegations without ever having spoken to MG, or having heard from anyone regarding MG’s claims, this was simply not a case that could be conducted on that basis.

Furthermore, the only link between all three ‘women scorned’, prior to any allegation having become public, was the applicant himself. Self-evidently, therefore, one risk of conducting a joint trial was that it would implicitly raise ‘coincidence’ reasoning.

It was submitted that, once the conspiracy theory was seen to unravel, as it inevitably would, the effect of the prejudice so far as the applicant was insurmountable.

Crown’s submissions

The Crown submitted that the trial counsel’s decision not to seek separate trials was a considered, and quite deliberate, forensic decision taken on instructions from the applicant. He chose to conduct his defence upon the basis of collusion between MG and ST, both ‘women scorned’. Trial counsel addressed that concept at length in his closing address.

As [the applicant] mentioned in his record of interview, you will recall that he said there were three women scorned. Well, the three women scorned, quite clearly, MG — you’ve seen the Facebook, and it’s pretty toxic. They had lots of differences in money, affairs, jealousy, ST.
…
There’s clearly contact at the time that she [MG] does make her complaint and every reason why she should be quite unhappy with [the applicant]. Next woman scorned is [ST]. She has been a friend and lover in various capacities for a large number of years and may even be to the extent that they’ve left their relative partners at some stage.
…
Now, the third woman involved [MB], she’s probably the most manipulative and maybe hateful of the scorned women. — — —
…
[ST] basically lies about his behaviour after the incident to suggest that he’s guilty of the allegations, before he comes to a house where he gets arrested, and she’s simply another woman scorned …

It can be seen, therefore, that whatever difficulties there may have been with the ‘women scorned’ defence, that was the applicant’s answer to the allegations against him in his record of interview, and in a somewhat more attenuated form, in his evidence to the jury. It was also the basis upon which trial counsel addressed the jury.

Trial counsel had suggested to MG, in cross-examination, that she had concocted the allegations of rape, and had done so when she learned that MB was pregnant with the applicant’s child. It was further suggested that MG had been encouraged to fabricate those allegations after she had learned of ST’s complaints.

To that point, it cannot be said that this approach to MG’s allegations was hopeless, or involved incompetence on the part of trial counsel.

ST was cross-examined about her relationship with MG. It was suggested that she had spoken to MB about MB’s relationship with MG. It was further suggested that ST, together with MG and MB, wanted to see the applicant punished for the way he had treated them. Trial counsel ultimately addressed the jury on the basis that ST was angry when she discovered that she had been replaced in the applicant’s affections by both MG and MB, and that she had gone to the applicant’s house, on the night of the alleged rape, full of ‘drugs and anger.’

The Crown submitted that the general rule is that parties are bound by the tactical decisions taken by their legal representatives at trial. The applicant’s written case had made reference to a number of authorities dealing with incompetence of trial counsel as a ground of appeal which referred to the test as being whether the course taken at trial was capable of rational explanation. Here, it was submitted, the explanation for the adoption of that course was obvious. Trial counsel, on the applicant’s instructions, sought to attack each of the complainants and MB as having colluded together to concoct allegations of rape.

The Crown further submitted that trial counsel’s decision not to seek separate trials was typical of the many forensic decisions taken at trial that might later be regretted. However, the ‘wisdom of such decisions can rarely be the proper concern of appeal courts’.[27] While the courts recognised that justice may require exceptions to this general rule,[28] mere criticism by an appellate court of the merits of the approach taken below would not of itself amount to an irregularity, still less constitute a miscarriage of justice.
[27]TKWJ v The Queen (2002) 212 CLR 124, 128 [8] (Gleeson CJ).
[28]Allen (a pseudonym) v The Queen [2016] VCSA 59, [76]–[77].

In our view, ground one must be rejected. It cannot be said that there was no rational basis upon which the applicant might have conducted his defence as he did even though, in the context of a joint trial, there would have been some significant disadvantage in doing so.

The defence to MG’s allegations was, quite simply, that she was prompted to make them after she learned that ST had alleged that she had been raped by the applicant. In that sense, MG sought to ‘jump on the bandwagon’, and bolster ST’s claims. Her motive was said to be hatred and jealousy. In that sense, as the applicant put it, she was simply a ‘woman scorned’.

Of course, the applicant had gone further in his record of interview. He had told police the case against him involved a full-fledged conspiracy on the part of three women scorned. Yet, that theory could not hold water. It was clear that ST had complained of having been raped without having the slightest knowledge of any allegation on the part of MG that she herself had been raped some months earlier.

That did not prevent the applicant from attacking ST’s credibility, as he did, based upon such deficiencies as there were in her account. Trial counsel’s closing address was couched in those terms, and he delivered a systematic and sustained attack upon ST that was intrinsic to her, and did not depend for its force upon any notion of collusion. He did so in parallel with the more general ‘women scorned’ collusion defence.

The answer to what the applicant told police in his record of interview could, in the end, have been quite simple. He built up a conspiracy theory in his mind that went beyond what the evidence would have supported.

Viewed objectively, this defence had a, not insignificant, downside. It meant that some material went before the jury that was prejudicial, and this could have been avoided had there been separate trials.

Nonetheless, trial counsel was put in an invidious position. He was given unequivocal instructions not to seek separate trials, but to run a ‘women scorned’ defence in the context of a joint trial. It was not, as the applicant now contends, impossible to conduct a defence of that kind. It did, however, require a measure of finesse and nuance, which was not ultimately achieved.

That is a far cry from meeting the requirements, for a ground of this nature, set out in cases such as Birks or Nicholls. Those cases make it clear that the test to be applied when considering whether there was a miscarriage of justice by reason of the manner in which the trial was conducted is whether there was a rational basis for doing what was done.

Certainly, it cannot be said that in the present case trial counsel’s conduct was ‘flagrantly incompetent’. Indeed, it might fairly be said that, faced with the applicant’s instructions, trial counsel had no choice but to conduct the trial in the way that he did. Contrary to the applicant’s submissions before this Court, he was under no obligation to withdraw, rather than present the defence that he did.

Ground 2 — Whether the ‘separate consideration’ directions were sufficient?

The applicant contends that the trial judge, in his charge. should have itemised each piece of the evidence so as to make its relevance to each charge, and each complainant, clear to the jury. This would include the evidence of Constables Clifford and Black, drug use, distress and the applicant’s relationship history with each complainant. He submits that, instead, the trial judge emphasised only that the evidence of one complainant was inadmissible on the charges relating to the other complainant.

The trial judge gave a lengthy ‘separate consideration’ direction prior to the evidence of the second complainant, ST:

In this trial, as you know, the prosecution has brought nine charges against the accused man. While these are separate matters, they are all being dealt with in the one trial. This is done for convenience, as it would be expensive and time-consuming to hold a separate trial before a different judge and jury for each charge. However, you must be careful not to allow convenience to override justice.
Both the prosecution and the accused are entitled to have each charge considered separately. It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge in relation to a particular complainant that he must be guilty or not guilty as the case may be of another charge relating to the same complainant. Each charge must be considered separately in light only of the evidence which applies to it.
You must ask yourselves ultimately in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If the answer is yes, then, you should find the accused guilty of that charge. If the answer is no, then, you should find him not guilty of it.
Of course, you must apply this direction when considering the charges which relate to a particular complainant, so Charge 1 to 4 relating to [MG] or Charges 5 to 9 relating to [ST]. Let me give you an example of what I mean. When considering any particular charge relating to [MG], you must consider only the evidence which applies to that charge.
It would be wrong to say that simply because you find the accused guilty or not guilty of that charge relating to [MG] that he must be guilty or not guilty, as the case may be, of any of the other charges relating to that same complaint of [MG]. Do you follow that, members of the jury? Good. Now, I want to go further and direct you this way.
Before the second complainant, [ST], is called I want you to clearly understand that what one complainant alleges about what [the applicant] did to her is not admissible in respect to the case involving the other complainant. So, as a matter of law, you must not take into account any of the evidence from one complainant on which the prosecution rely for the charges relating to that complainant when considering whether [the applicant] is guilty of any of the charges relating to the other complainant.
Follow that? Good. This is a very important direction I’m giving you and it is vital that you understand it and faithfully apply it during your consideration of the relevant issues in this case. Put simply, you cannot take what [MG] has told you about what happened to her — Charges 1 to 4 — into account when considering the charges that relate to [ST] — Charges 5 to 9.
Of course, the reverse is also the case. You cannot take what [ST] has told you about what happened to her — Charges 5 to 9 — into account when considering the charges that relate to [MG] — Charges 1 to 4. There will be, as I am sure you already appreciate, points of relevance raised by counsel in other respects relating to the two women, [MG] and [ST]. Let me give you two examples.
The prosecution rely on the fact that [MG] was told by [MB] something about what [ST] was alleging against [the applicant] in order to explain why at that time, unlike previously, [MG] was prepared to report her own allegations to the police. So in that sense, the prosecution are relying on the knowledge gained by [MG] about allegations relating to [ST] to explain [MG]’s state of mind at the time that she came forward about 12 months later and reported her own allegations to the police.
A different example relates to one of the defence arguments. They will be inviting you to conclude that when [MG] was told something by [MB] about what [ST] was alleging against [the applicant], [MG] used that as an opportunity to make false allegations of her own against [the applicant].
As the defence put it, [MG] was angry at [the applicant] for his unfaithfulness and, when she learnt from [MB] that [MB] was pregnant to [the applicant], she, [MG], prepared the typed document containing her allegations and emailed it to Detective Rattray.
So, again, it is being restricted to the state of mind of [MG]. The defence are pointing to what they say is a possible motive for [MG] making false allegations against [the applicant].
Now, you will readily appreciate that in neither of those two examples is it suggested that you should use the evidence relating to any of the charges of one complainant in order to help prove any of the charges relating to the other complainant.
You cannot and must not do that, as I have already told you earlier in this direction, and I can see you nodding your heads, members of the jury. So please remain vigilant throughout this trial in remembering and applying my directions on that issue.[29]

[29]Trial, DPP v [Mulligan] (County Court of Victoria, Judge Gamble, 24 August — 21 September 2015) 775–8 (‘Trial’) (emphasis added).

We have recited this lengthy aspect of the trial judge’s direction to show that not only did his Honour give a conventional separate consideration direction as to each charge, and the evidence relating to that charge, but he explained the limited use that could be made of each complainant’s evidence to counter the risk of potential prejudice from the misuse of that evidence. The trial judge then reiterated and expanded upon this direction in his charge in these terms:

In this trial, members of the jury, as I have told you earlier, the prosecution has brought nine charges against the accused of which they seek a conviction in relation to seven because two of the charges, the recklessly cause injury charges, are put in the alternative.
While these are separate matters, they are all being dealt with in the one trial. That is done for convenience. You must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately. It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge relating to a complainant, that he must be guilty or not guilty, as the case may be, of another charge relating to the same complainant.
Each charge must be considered separately in light only of the evidence which applies to it. You must ask yourselves in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular crime. If the answer is, ‘Yes’, then you should find him guilty of that charge; if the answer is, ‘No’, then, of course, you should find him not guilty of it.
And I repeat the important direction I have given you previously that what one complainant alleges about what [the applicant] did to her is not admissible in respect of the case involving the other complainant. So as a matter of law you must not take into account any of the evidence from one complainant on which the prosecution rely for the charges relating to that complainant when considering whether [the applicant] is guilty of any of the charges relating to the other complainant.
Put simply, you cannot take what [MG] has told you about what happened to her (Charges 1 to 4) into account when considering the charges that relate to [ST] (Charges 5 to 9). Of course, the reverse is also the case, you cannot take what [ST] has told you about what happened to her (Charges 5 to 9) into account when considering the charges that relate to [MG] (Charges 1 to 4).[30]

[30]Trial 1946–7.

No exception was taken to his Honour’s direction during the trial or in the charge. Despite the absence of any suggestion during the trial that such directions were necessary to avoid unfairness, the applicant now submits that the obligation to address the relevance of all of the evidence in the manner now contended for is supported by the reasoning in R v Minuzzo and Williams[31] and R v Robertson.[32]
[31][1984] VR 417 (‘Minuzzo’).
[32][1998] 4 VR 30 (‘Robertson’).

Minuzzo was a case involving four co-accused who were each charged with one count of conspiracy to defraud, and two counts of aiding and abetting the receipt by an agent of a secret commission. The accused were tried jointly and three were convicted on the conspiracy charge.[33] Minuzzo and Williams appealed against their conviction on grounds which included that the trial judge failed to direct the jury adequately as to the use the jury could make of acts and or statements of other conspirators, and failed adequately to identify the evidence which the jury could use in their cases.[34] The Court held that there had been a substantial miscarriage of justice as the trial judge nowhere explained to the jury what evidence was admissible against each accused. The Court considered that was a matter of critical importance in a case in which each accused played a very different role from the others.
[33]The two counts of aiding and abetting the receipt by a secret agent were abandoned at trial. The Crown conceded that they were ‘merely a repetition of the same crime charged in count one’: Minuzzo [1984] VR 417, 418.
[34]Ibid 426–27.

We are not here concerned with a joint trial of different accused where the identification of the evidence admissible against each accused was essential. Even in that setting, Young CJ, who delivered the primary judgment, recognised that it may be possible to direct a jury in general terms as to what evidence the jury may in the first instance use against each accused.[35]
[35]Ibid 432.

In Robertson, the trial involved sexual offences against a single complainant. The applicant’s primary ground of appeal concerned a complaint that the trial judge’s directions had not sufficiently highlighted the length of the delay between the alleged offences charged and the time when the applicant was charged.[36] The trial judge had not given an authoritative direction in that regard and had not isolated the particular prejudice that flowed to the accused.[37] A ’separate consideration’ direction had been given, but it departed from convention and was infelicitously worded. It did not, for example, state that combining more than one count in the presentment is a procedure of convenience and that to ensure a just outcome requires separate consideration of each offence charged in light of the evidence applicable to that charge.[38]
[36]Robertson [1998] 4 VR 30, 35.
[37]Ibid 37.
[38]Ibid 39.

No such errors were made in the subject charge. The separate consideration directions given by the trial judge were faultless.

Minuzzo and Robertson do not support the applicant’s contention that there was any deficiency in the trial judge’s directions to the jury. The trial judge was not obliged to direct the jury as to the relevance of each individual piece of evidence to each charge, and each complainant. The bulk of the evidence was self-evidently related to a particular charge and a particular complainant and the conventional direction that such evidence was relevant only to that charge was quite sufficient. As will appear from the examination of the other grounds of appeal, where evidence may have applied to more than one charge, it was the subject of appropriate directions that identified its use and its limitations. When dealing with other grounds, we shall not repeat that the trial judge was very much alive to the possibility of impermissible prejudice, and gave clear and detailed directions to ward off this possibility. His Honour’s directions in this regard were unimpeachable and went further than was strictly required.

Ground 3 — Whether the ‘other misconduct’ direction was sufficient?

The prosecution did not contend at trial that the evidence tendered in support of the charges in relation to one complainant could be used to support the charges in relation to the other. The applicant nevertheless contends that the nature of some of the evidence was such as to potentially lead the jury into error. He submits that the trial judge should have done more to avoid the risk of ‘cross-contamination’ of the evidence.

His Honour gave the jury in running a very detailed direction in relation to the Facebook messages and the applicant’s history of violence towards the complainant MG.

The trial judge’s direction explained the relevance of the Facebook messages, which shed light on the relationship between the applicant and the complainant MG at the time of the alleged offending, and the limitations on their use. The judge gave similarly lengthy and careful directions as to the applicant’s alleged past history of violence towards MG. He identified the charges to which it related and emphasised that it was not to be taken into account in relation to ST. The jury were directed that they must not allow such evidence to prejudice them in deciding whether they were satisfied of the applicant’s guilt on a particular charge. His Honour offered to revisit and repeat these directions in his Charge, but this offer was not taken up by counsel, who submitted that it was not necessary.

The trial judge also gave the jury the following direction:

It is your duty to decide this case only on the basis of the witnesses’ testimony and the exhibits. You should consider the evidence which is relevant to a particular matter in its individual parts and as a whole, and come to a decision one way or the other about the facts.
As I have told you, in doing this you must ignore all other considerations such as any feelings of sympathy or prejudice you may have for anyone involved in the case. You should not, for example, be influenced by the lifestyle of any of the witnesses, including the accused and the complainants and, for example [MB]. It must be acknowledged that one or more of the witnesses’ behaviour may not accord with what you the jury may think is morally acceptable, but this is not a court of morals, it is a court of law, and such emotions have no part to play in your decision.

Remember, you are the judges of the facts. That means that in relation to all of the issues in this case you must act like judges. You must dispassionately weigh the evidence logically and with an open mind, not according to your passion or feelings.[39]

[39] Trial 1874–75 (emphasis added).

The applicant’s primary argument under this ground in his written case was that, although the trial judge in running and in the charge, gave directions concerning the Facebook messages and the applicant’s history of violence towards MG, there were other forms of alleged misconduct that equally required such a direction. The applicant pointed chiefly to his possession and use of the drug ‘ice.’ He submitted that greater care should have been taken in identifying this evidence and limiting its use. He also submitted that an anti-tendency direction and a specific anti-contamination direction should have been given.

During oral argument counsel for the applicant’s attention was drawn to the fact that defence counsel had explicitly requested that no directions be given as to the applicant’s drug use.[40] The argument that the trial judge should have given a direction in that regard was then abandoned. No anti-tendency or specific anti-contamination direction was sought at trial. In circumstances where the prosecution was not relying upon tendency reasoning one can well understand why defence counsel would not wish to have the issue of tendency raised at all. Be that as it may, such directions would in any event have been unnecessary, as the effect of the directions given made clear that the evidence could not be used in such ways. The judge had been scrupulous in emphasising that the evidence could only be employed in the limited manner which his Honour identified.

Grounds 4 and 6 — Whether the trial judge erred in his directions as to ‘distress’ and the use that could be made of ‘incriminating conduct’?

[40]Ibid 72–5. Defence counsel also plays it down in his closing at 1868.

Grounds 4 and 6 may be dealt with together in the same manner as counsel for the applicant did during oral submissions.[41]
[41]He accepted that there was significant overlap between them and that it was not necessary to deal with them separately.

The applicant submitted, in his written case, that the jury should not have been permitted to use the distress evidence of the respective complainants as circumstantial evidence in support of their allegations of rape. The applicant in his oral submissions abandoned this submission with respect to the complainant MG. It is therefore only necessary to consider the direction given with respect to the distress evidence of the complainant ST, and the post-offence incriminating conduct relating to the charges concerning ST.

The evidence of ST’s distress was that she yelled for help at the front of the applicant’s residence, that she was heard banging on the front door of the neighbour’s residence, that she was saying words to the effect of ‘Help me, let me in, he’s going to kill me’, and that she was observed collapsing to the ground with clumps of blood to the back of her head. These observations were made by the applicant’s neighbours, and their daughters. Their observations were supported by the recordings of the 000 calls. The applicant submits that it could not be inferred from such evidence whether ST’s distress was the result of the alleged assault, the alleged rape, or both, as the evidence was said to be intractably neutral, and could not advance the prosecution case.

The trial judge gave the following direction as to the use the jury could make of the distress evidence in relation to each complainant:

Can I remind you also in relation to the other complainant, [ST], that there is evidence about her distress also. I am sure you remember that. That she was heard screaming for help and making an allegation that he was going to kill her and then there seems to be two parts to that. At least so far as the neighbours are concerned they heard that and then they heard further distress by her once she got to the neighbour’s door. In relation to [ST] herself she described how she was yelling and where and where the accused was and all of that.
So you have evidence of distress in relation to both [MG] and [ST] and this direction relates to that in the context of the allegations of rape that they each make. Now again, members of the jury, I will give this direction without repeating it for each complainant but you must apply the direction and consider it separately in relation to the case in relation to each complainant. …
So in respect of a complainant’s evidence or witness’ evidence about a complainant’s apparent distress the prosecution relies on that evidence as a piece of indirect evidence that supports that complainant’s account. It is put that it supports her account that she was sexually penetrated and without her consent.
Ladies and gentlemen, it is for you to decide how much weight, if any, to give to the evidence of a complainant’s distress. You should consider the circumstances in which the complainant was observed, the timing of her distress and whether the complainant’s distress could have been caused by something other than the alleged offending.
…
The situation with [ST] is different as you would appreciate. On her account she is fleeing the house immediately after the incident which has occurred, part of which was her being orally raped by [the applicant]. So there is a bit more proximity to it in that regard as compared to [MG].
But you still must consider whether or not the distress could be explained by something else than the allegation she makes about being raped. Whether it could be — her distress could be wholly explained by something else. For example, the influence of drugs. If you accept that she was influenced by drugs and that is ultimately a matter for you, I am not expressing any view one way or the other, or whether her distress could be explained wholly by some other wrongdoing by [the applicant] than the allegation of him raping her. Clearly she is expressing a concern about being killed. So whether it relates solely to being allegedly assaulted or threatened, they are matters for you to consider.
Where a complainant’s distress is observed well after the alleged sexual offending the evidence will generally be given less weight than if the complainant’s distress was observed immediately after the alleged offending. On one view, members of the jury, the former may be the situation with [MG] depending on which account you accept, whereas the latter would appear to be the case with [ST]. There is that immediacy clearly there. This is because of the risk that the distress was caused by something other than the alleged offence.[42]

No objection was taken to this direction as to the use that could be made use of the evidence as to ST’s distress. Defence counsel did raise an objection to the distress evidence of MG but, as we have said, that aspect of this ground was abandoned in oral argument.[43]

[42]Ibid 1920–23 (emphasis added).

[43]Ibid 1933–39.

The trial judge dealt with the issue of post-offence conduct in an initial Ruling early in the trial, following an application by the defence that the prosecution not be permitted to rely upon the evidence as incriminating conduct. His Honour said:

It remains for me to make one further ruling in this matter, prior to empanelling the jury. That ruling concerns the question whether the prosecution should be permitted to rely on certain post-offence conduct by the accused as incriminating conduct.
Put simply, the prosecution want to rely on a combination of direct evidence and inferential reasoning to prove that the accused man, in response to [ST] raising the alarm by fleeing injured to his neighbour’s house, drove away from his house and remained away until such time as he was arrested at a friend’s house some four days or so later. From the evidence and the available inferences, the prosecution want to make the argument to the jury that in doing what he did, the accused man was demonstrating that he believed he was guilty of the offences with which he is charged in relation to [ST].
The defence position, as I understand it, is that they don’t object to the relevant evidence being led, only to the prosecution’s reliance on it as incriminating conduct.
…
It would be well open to a jury to find, based on that evidence [i.e. the evidence from the neighbours], that [the applicant] was aware of the fact that [ST] was injured, very upset and screaming for help in the context of alleging that he was going to kill her. Indeed, on some of those accounts, he was there speaking to her and trying to get her to come back inside his house.
In my view, the abovementioned circumstances, together with the negative results from the police enquiries of the neighbours and the police patrols past the house, provide a more than sufficient basis for the prosecution to be able to argue that [the applicant] did not return to his house at any stage until arrested, and that he did so quite deliberately in order to try and evade police detection. [44]

[44]DPP v [Mulligan] (Ruling) (Unreported, County Court of Victoria, Judges Gamble, 24 August 2015) 4 [9]–[11], 16 [64]–[65].

His Honour concluded that the evidence was not ‘intractably neutral’, but was evidence that, in conjunction with other supporting evidence, could support an inference of guilt and which should be left to the jury as the tribunal of fact. After the evidence was completed, the defence again raised objection to the prosecution relying upon it as incriminating conduct. The prosecutor submitted that the incriminating conduct evidence was stronger than it had been at the start of the trial. He submitted that all the evidence of noise, commotion and distress from the complainant ST, at the time the applicant left the scene, made his leaving inherently suspicious. Following a lengthy debate the judge stated that he saw no reason to change the ruling he had given prior to empanelment.

The trial judge in his charge dealt with the issue of the applicant’s post-offence conduct:

Right, members of the jury, I now want to turn to the evidence upon which the Crown rely as being evidence they suggest to you shows that [the applicant] himself believed that he had committed the offences against [ST] with which he is charged, and to put it succinctly at this stage. The Crown say that the evidence is that after knowing what he did to [ST], what she says he did to him, he drove away in his car and he remained at large, in effect, in order to avoid the police which he knew would become involved to investigate this incident because of its seriousness and the way in which [ST] had conducted herself immediately afterwards. So that how it is put, that that conduct in driving away from the scene in the circumstances that he did and then remaining at large for four days, as odd as that was, shows that he believed that he was guilty of the offences with which he is charged in relation to [ST].
…
You may only use this evidence in this way if you find that this conduct occurred, and the only reasonable explanation of this conduct is that the accused thought that he had assaulted, injured, raped, threatened and falsely imprisoned [ST] as she alleges. However I must warn you that even if you find that the accused believed that he had committed the offences or any of them with which he has been charged in relation to [ST], you must consider all the evidence when deciding whether the prosecution has proved his guilt beyond reasonable doubt.
…
[The prosecution] rely on all of that [post-offence conduct] evidence to demonstrate that [the applicant] believed he had committed the offences with which he is charged in relation to [ST] and he was trying to avoid being arrested by the police, who the prosecution say he well knew would become involved and investigate the incident.
Now as you would appreciate, ladies and gentlemen, there is no dispute between the defence and the prosecution that [the applicant] did leave his house at about 4.30 am on that Saturday morning and he did not return to it before he was arrested at [MB’s] grandparents’ house at about 8 am on the Wednesday morning, 25 September.
The area in dispute is what he did for part of that time. For example, whether he went to work or not, and more particularly whether his leaving and remaining away can properly be viewed in the incriminating way that the prosecution suggest.
The defence submit to you that the prosecution cannot prove what they allege in that regard. [The applicant] left to try and retrieve his phone from [ST] without any awareness that she had set up a hue and cry or was injured. He denies having committed all of the offences against her.
As for his movements thereafter, all he did was make further attempts to try and find his phone, and thereafter went about his normal life. He completed the job at the bakery which had some urgency about it given the timeframe and spent some time with [MB], as he would normally do, although because he was so tired he ended up spending a lot of that time sleeping.
So to some extent the issues lies with what the evidence shows he did. The prosecution do not accept that he did any of the things he claims to have done up until he met up with [MB] and stayed with her. [The applicant] denies sleeping in a rubbish skip bin on the Sunday night as [MB] alleges he said he did.
There is a real issue as to whether his conduct demonstrates that he believed he had committed the offences against [ST].[45]

[45]Ibid 1953–56 (emphasis added).

It was acknowledged in oral argument that there were three possible explanations for ST’s distress. First, the defence hypothesis, that the applicant did nothing to her, and that ST injured herself, causing the distress. Second, that the applicant had assaulted her, causing the distress. Third, that the applicant raped her, causing the distress. A fourth possibility was that the distress was the result of both the assault and the rape.

The applicant submits that the distress evidence of ST was equivocal given these possibilities and that the trial judge should have given a direction to the effect that it could only be used to support the conclusion that ‘wrongful conduct’ had been engaged in. This submission must be rejected. It does not follow that the distress evidence could not be left to the jury as something which was capable of supporting ST’s account. The distress evidence was not ‘intractably neutral’ merely because it could support more than one hypothesis.[46]
[46]See R v Lazos (1992) 78 A Crim R 388, 399 (‘Lazos’).

The incriminating conduct relied upon by the prosecution was the fact that the applicant drove away from his place of residence after the alleged incident involving ST and stayed away for approximately four days prior to his arrest. The post-offence incriminating conduct was not intractably neutral because it was capable of supporting the inference that the applicant was conscious that he had committed one or both of the offences charged. As the Full Bench of this Court said in R v Ciantar:[47]

We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases.[48]

[47](2006) 16 VR 26 (‘Ciantar’).

[48]Ibid 39 [40] (citations omitted) )emphasis added).

For the purpose of such inferential reasoning the circumstantial evidence of distress, or post offence incriminating conduct, was not to be considered ‘piecemeal’ but rather as part of the totality of the evidence.[49] It included ST’s account of what occurred. It was a matter for the jury, properly instructed, to determine whether the prosecution’s hypothesis should be accepted.[50] It was well open to the jury to infer from the totality of the evidence that ST’s distress, or the applicant’s incriminating conduct, supported ST’s account of what occurred and related to the assault, the rape, or both charged offences.[51]
[49]See, eg, R v Hillier (2007) 228 CLR 618, 637–38 [46]–[48]; IMM v The Queen (2016) 257 CLR 300, 314 [48].
[50]See R v Ferguson (2009) 24 VR 531, 559–60 (‘Ferguson’). See also and Lazos (1992) 78 A Crim R 388, 399.
[51]See Flora v The Queen (2013) A Crim R 320, 377 [87].

The judge directed the jury that they must consider whether there was some other explanation for the distress or incriminating conduct. As we have said, it was submitted in oral argument on appeal that the explanation for the distress or incriminating conduct may have been the result of some other ‘wrongful conduct’, yet was no suggestion at trial of unlawful conduct by the applicant other than the charged offences. In a context in which the jury could well have inferred that the distress or incriminating conduct related to one or more of the charged offences, to restrict the jury to an inference of general wrongdoing would have usurped a large part of the fact-finding function of the jury, requiring them to act contrary to the dictates of common sense and experience.[52]
[52]Ibid 328 [89].

The incriminating conduct relied upon by the prosecution was the fact that the applicant drove away from his place of residence after the alleged incident involving ST and stayed away for approximately four days prior to his arrest. The applicant, in both his written case and oral submissions, raised the case of Mocenigo v The Queen[53] in relation to this point. It will be remembered that Mocenigo concerned an accused who had had been convicted of murder. The prisoner appealed on the basis that the verdict was unsafe and unsatisfactory. A specific issue on appeal was whether the accused’s post-offence conduct, and lies, could support an awareness of guilt of murder.
[53][2013] VSCA 231 (‘Mocenigo’).

Priest JA, who wrote the lead judgment, concluded that the lies and incriminating conduct in that case were ‘capable of founding an inference that the accused believed himself to have been guilty of an unlawful killing, whether that be murder or manslaughter’.[54] His Honour summarised the relevant legal principles applicable to post-offence conduct as a category of evidence:

In recent years a certain mystique seems to have grown up around evidence of lies and post-offence conduct. Consciousness of guilt reasoning from lies and post–offence conduct is in reality, however, the application of a process of logical thought … Although lawyers may have made it such, it should not be regarded as an abstruse or technical concept. And although the concept has in recent times presented difficulty in its practical application, in essence it involves some fairly simple notions. First, it is accepted that a person may sometimes be seen to have impliedly accepted responsibility for a crime, through his or her statements or conduct after its commission. Before that conclusion can be reached, however, the statements or conduct have to be isolated, and how it is that they could be viewed as implied admissions must be identified. Obviously, all other reasonable possibilities consistent with innocence must be excluded beyond reasonable doubt.[55]

[54]Ibid [44].

[55]Ibid [45] (citations omitted).

Priest JA put it succinctly when he stated that lies and other post-offence conduct, going to awareness of guilt, amount to implied admissions of guilt.[56] His Honour reviewed the Ciantar question of whether such evidence can be used in a situation in which an accused has been charged with multiple or alternative offences. Priest JA concluded, following Ciantar, that lies and post-offence conduct, subject to proper directions by the trial judge, can be used by a jury in determining whether an accused had an awareness of guilt and even where that awareness may be linked to one or more offences charged or otherwise. In looking at all the lies and evasions of the accused in that case, his Honour observed that:

It must be acknowledged that lies and post–offence conduct may be seductive to a jury. There is an obvious danger that lies or conduct may be accorded an unjustified sinister significance by the jury and be misused. It is an easy thing for a jury to jump from the finding that a lie was told, or incriminating post–offence conduct was indulged in, to a conclusion of guilt. That is likely what occurred here, despite the trial judge’s correct directions.
The circumstantial evidence was capable of establishing that the accused killed the deceased. Moreover, when taken together the various strands were capable of proving that the applicant believed that he had unlawfully killed the deceased … But looking at the circumstantial evidence globally, in my view it was incapable of establishing to the criminal standard that the applicant enjoyed murderous intent when he caused Ms Hill’s death. Put another way, it was not open to the jury to be satisfied that the applicant was guilty of murder as opposed to manslaughter. The alternative hypothesis to murder — that the killing was manslaughter — was so patently reasonable that that no jury properly instructed could rationally exclude it.[57]

[56]Ibid [46].

[57]Ibid [73]–[74] (citations omitted) (emphasis added).

There are clear differences between Mocenigo and the present appeal. There the accused, who pleaded not guilty to murder, had effectively given an exculpatory version of events that amounted to manslaughter; that is, he had admitted that he killed the deceased, but denied that he intended to either kill or cause really serious injury. And, despite the fact that his post-offence conduct could not support an inference that he was guilty of murder, it could support an inference that he was guilty of manslaughter. Here the applicant has not conceded any version of events other than the one he put forward in evidence, namely that none of the allegations are true and that his account should be preferred to that of the complainant ST. What is more, looking globally at the evidence, it was reasonably open to the jury to infer that the applicant’s awareness of guilt related to one or more of the offences charged. There is no clear cut case, as there was in Mocenigo, that the more serious offence (here rape, there murder) has been wrongly reasoned to.

The decision of the High Court in Patel[58] affirms the approach outlined above, namely that it is not necessary to link an awareness of guilt to the specific offence or offences charged, and that it can go to an implied admission of guilt provided that other possible explanations have been excluded.[59] But, again, Patel can be distinguished in that, in that case, the prosecution had changed its case at a late stage of the trial. This late change had given rise to a miscarriage of justice in that it had rendered the evidence previously admitted no longer relevant and hugely prejudiced the accused. The trial judge’s directions were not sufficient to cure this prejudice. The logical problem was that the evidence showed that the accused was generally incompetent but not that the specific ‘surgery itself was performed in a manner that was grossly negligent with serious or fatal results.’[60] Moreover, as the Crown submitted in Patel, the fact that the accused surgeon had misled the patients’ families and had stated, ‘unprompted, that the complications arising from surgery were not his fault,’ were held to be ‘relevant to show that [Patel] was conscious of his carelessness.’[61] This is consistent with our finding that the jury were entitled to draw an inference from the applicant’s post-offence conduct that he was aware of his guilt in relation to the offences charged.
[58](2012) 247 CLR 531.
[59]See, eg, the joint reasons of French CJ, Hayne, Kiefel and Bell JJ at 554 [78]–[80].
[60]Ibid 554 [78].
[61]Ibid [80].

The applicant’s submission that the trial judge should have limited the use that the jury could make of his post-offence conduct solely to credit must be rejected. So too must his submission that jury should have been directed that the conduct could be used to infer an awareness of general wrongdoing but not of any specific offence.

Ground 5 — Whether the trial judge erred in failing to give a ‘forensic disadvantage’ direction?

The applicant in his written case complains that he suffered a forensic disadvantage as a consequence of the fact that, during the trial, the complainant MG altered her account as to the date on which the offences the subject of charges 3 and 4 occurred. MG originally maintained that she had been raped on 2 December 2012. During her evidence she stated that, from reviewing the evidence (the SMS and Facebook messages between herself and the applicant), the correct date was likely to be 19 November 2012.[62] These telephone records commenced on 20 November 2012, a day after the rape was alleged to have occurred. MG had activated a new phone (the ‘195 phone’) on that day.
[62]Trial 121.

The applicant submits that the uncertainty as to a specific date caused him significant forensic disadvantage.[63] He points to the lack of phone records and Facebook messages from 19 November 2012, which would have shed light on the nature of their relationship at the time of the alleged offences, and would have shown whether there was friendly contact or no contact following a fractious separation. He submits the trial judge had accepted there was some forensic disadvantage, but failed to give it sufficient weight. He submits that, since a forensic disadvantage direction had been sought, one should have been given, since there were compelling reasons to do so, and no compelling reasons not to.
[63]The applicant was not, however, able to point to any authority in support of the proposition that the lack of a specific date was a sufficient cause for the purposes of forensic disadvantage.

Section 39 of the Jury Directions Act 2015 provides that the trial judge may direct the jury on forensic disadvantage experienced by an accused only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage. Section 14 of the Act then requires that the trial judge must give the direction unless there are good reasons not to, having regard to all the evidence, and the manner in which the prosecution and the defence have run their cases.

It is desirable to set out the nature of the forensic disadvantage that was asserted during the trial. Defence counsel first raised the issue during the course of the evidence. He submitted that the change of dates by MG had caused his client significant forensic disadvantage:

DEFENCE COUNSEL: My friend makes it clear that 2 December is only an example to the actual charge date, but as — in relation to the phone records, I think phone records were requested from 20 November, and they don’t cover 19 November, which now seems to — well, the ones I have don’t seem to — because the 19 November date came up quite late in the proceedings.
So the delay has led to huge forensic disadvantage to the defence, in that not having a specified date, we cannot rely on phone records. If there’s telephone calls at a certain time, she’s obviously — the event is not occurring. But if we don’t know what that certain time is — — —
HIS HONOUR: [Counsel], if you want to, the informant can be recalled tomorrow and there can be placed before the jury evidence that there are no phone records for 19 November, which now seems to assume some significance which it didn’t at the time that she made her statement. If you want, that can be before the jury if it’s, in fact, the case.
DEFENCE COUNSEL: Well, we don’t know that that’s the date; that’s the problem.
THE PROSECUTOR: Well, it is the — the document I’ve got notes that the request was made for phone records from 1 November to 31 December 2012, but it’s in relation to that 195 number. The records we’ve got starts on the 20th, which I think means that that’s when that new — that 195 phone was activated. No records were ever sought for the other phone. I think that’s the — that’s what has happened.[64]

[64]Ibid 1435 (emphasis added).

Defence counsel did not take up the invitation of the trial judge to have the informant recalled. As Weinberg JA observed during the course of oral argument on appeal, had counsel wanted to, he could readily have asked for other phone records to be subpoenaed.

Prior to closing addresses defence counsel requested that the trial judge give a forensic disadvantage direction. The following exchange took place:

DEFENCE COUNSEL: The other area is in relation to the forensic disadvantage to the defence caused by the delay involving police in relation to [MG], which the delay in complaint and the fluctuation of the offence date, especially in the context of what could then be seen as a — well, possibly a domestic relationship continuing or not continuing, because the dates are so unclear.
HIS HONOUR: [Counsel], you’ve got ample evidence to make the point that [MG] continued to try and be in a relationship with [the applicant] despite, on her account, having been bashed and raped by him. You’ve got that point clearly.
DEFENCE COUNSEL: Yes, but a s 39 direction—we have been put at a forensic disadvantage because of that.
HIS HONOUR: The defence is, is it not, that nothing happened?
DEFENCE COUNSEL: That’s right, but it’s a situation we’ve got almost daily phone calls, almost daily Facebooks. If there was a date, we would be able to show that, clearly, nothing has happened on that date, but because we’ve got a— — —
HIS HONOUR: How?
DEFENCE: By showing that there’s — they’re not together at that time, because virtually at the times when they’re not together, there’s constant Facebooking, and SMSs and so forth and we don’t have date to link that up to. We’ve got locations in relation to telephone calls. It’s a situation that could almost be put as an intentional moving of the goal post to — — —
HIS HONOUR: How could I come to that view, [Counsel], seriously?
DEFENCE COUNSEL: I believe — and it’s a — — —
HIS HONOUR: What, she’s deliberately moving the goal post as to when she thinks this may have happened so as to create future problems for your client in trying to defend himself; is that what you're suggesting?
DEFENCE COUNSEL: That’s what my client is suggesting, Your Honour. In the record of interview the — that one would think that she would have a clearer idea, especially with Facebooks on a daily basis as (indistinct) she has referred to a Facebook — one of the few Facebooks that aren’t there to ascertain a date and then goes ahead and moves it.
HIS HONOUR: What do you say is the forensic disadvantage that the jury would not understand without a direction?
DEFENCE COUNSEL They don’t understand how – if we had a date, we would able to defend it in relation to Facebook, and SMSs and location guides as to — — —
HIS HONOUR: That would show what?
Defence Counsel : Possibly — that they were either — that they were apart for a good proportion, because she has said she doesn’t make telephone calls when they’re together or Facebook when they’re together. The offences would have to occur when they’re together. The timing of the offences, she says, is clear, even though it differs from the two complaint witnesses.
HIS HONOUR: Mr [Prosecutor], what do you say about this?
THE PROSECUTOR: Your Honour, she nominates the date of 2 December. The defence have what they want for 2 December; they can make what they want out of that. She then thinks that, in fact, the date might have been 19 November and she doesn’t just make that up; that’s based on the Facebook message from 27 November, ‘You ended it on Cup Eve and again last Monday’.
In fact, I actually thought — I was putting that to her — well, I put that — well, I raised that with her, I should say, in her evidence–in–chief. I had actually overlooked those emails. She herself raised that a long time ago and the defence had that apparently, but she floated the possibility that it was the 19th.
If it was the 19th, then the evidence the defence are talking about doesn't exist. The first Facebook message is on 21 November; that is the first one. This is a complete download of everything. The first phone call is on 20 November, because that’s when her new phone was activated. It just — it is what it is. The forensic disadvantage has to be significant. I mean, it may, in fact, be the Crown that suffered a serious significant forensic disadvantage by not having this evidence. It might have made the case so much clearer.
HIS HONOUR: [Counsel], isn’t that the situation, in a sense, that whilst there was an initial reference to the date of 2 December, the complainant, after being referred to a relevant Facebook message, was, in effect, saying that it was likely to be 19 November?
DEFENCE COUNSEL: I think her response, ‘It’s a possibility — anything is possible, isn’t it?’ I would have to — — —
HIS HONOUR: I don’t know that it was that vague, … I think she did really embrace that and there was the exchange between her and the informant that was led, wasn’t there, which I think was a bit firmer about it being the 19th.
DEFENCE COUNSEL: I think her actual evidence before the jury, but obviously I will be a lot clearer on this tomorrow. The other forensic disadvantage is that the informant has not made the inquiries that he could have done in relation to the phones that were in his existence and then purports to be an expert in relation to the operation of elderly Nokia phones when he is clearly not an expert in that in relation to the dating of — — —
HIS HONOUR: You were asking him all sorts of questions about that, [counsel]. If you didn’t figure him to be an expert, or didn’t want him to answer the questions, maybe you shouldn’t have asked them.
DEFENCE COUNSEL: It’s a situation that it’s information that was required by the defence, but he is clearly not an expert on that. We had no problems with the actual expert, Odell, in relation to the injuries and so forth, but the informant indicates that he could have sent it to – could have had the matter properly analysed — the phone properly analysed and he only came up — — —
HIS HONOUR: For what?
DEFENCE COUNSEL: For the content of the messages and — — —
HIS HONOUR: But what purpose?
DEFENCE COUNSEL: What the prosecution brought in from that witness was a list of phone messages from [ST] to the accused on the — — —
HIS HONOUR: What’s the forensic — significant forensic disadvantage, that we’re unaware of what other messages may have existed at some prior time?
DEFENCE COUNSEL: And the timing of those messages.
HIS HONOUR: Hadn’t they been deleted?
DEFENCE COUNSEL: (indistinct) can get them back again, apparently.
HIS HONOUR: Well, he seemed to think not, [Counsel]. I don’t have evidence to the effect that they could have been, do I?
DEFENCE COUNSEL: It would also be evidence of what was on those [ST —the applicant] calls and [the applicant — ST] calls on the 20th of the 9th and 21st of the 9th, rather than a bland, ‘This is when telephone’ —
HIS HONOUR: They’re no longer in existence, are they?
THE PROSECUTOR: You need to have one of the handsets to get that, Your Honour.
HIS HONOUR: Anything else, [Counsel]?
DEFENCE COUNSEL: No, Your Honour.
THE PROSECUTOR: Your Honour, I — if we have finished with that, I had another concern, Your Honour — — —
HIS HONOUR: I just should indicate that as I am presently minded I do not consider it appropriate to give a forensic disadvantage direction to the jury because I don’t consider the accused to have suffered a significant forensic disadvantage, and I don’t consider there are substantial and compelling reasons to give the requested direction.[65]

[65]Ibid 1734-38 (emphasis added).

In the charge the trial judge reminded the jury of the evidence that the complainant MG had given that had led her to change the date of the alleged offences from 2 December to 19 November 2012:

Now, members of the jury, I am about to give you some directions in relation to the complainant [MG], and it relates to the evidence concerning what she says, that she told two people, close in time she says to when she was allegedly raped in [the applicant’s] bedroom, and those two people were [FZ] and [SB], and of course you have also heard from those two people about their memory of when and what they were told by [MG] about any alleged rape incident.
Before I give you those directions, it may be of assistance to you if I referred to the evidence that has been given in that regard. It was firstly from [MG] herself, and just to put it context, and we are dealing with what she has said to those two people about any rape, but to put it in context, she referred to the earlier alleged assault as having occurred on the Cup weekend, early November 2012; and that, to her recollection, the rape incident occurred after that, and she has given different estimates of the date on which that incident occurred, initially by reference to a text when making her statement, which she did not have in front of her. I think she believed it may have been 2 December.
And then later, by reference to one of the Facebook messages of 27 November, where there was a reference to what had happened ‘last Monday’. She seemed to accept or at least indicate that it was more likely to be 19 November, but she did, in her evidence–in–chief, say that that alleged rape incident occurred a couple of weeks after the Cup weekend incident, two to four weeks afterwards, which would have, on that estimate, made it mid–November to early December.[66]

[66]Ibid 1914–15.

Then, later in the charge, his Honour summarised the parties’ submissions on this issue:

Then [the Prosecutor] went on to talk about the vagueness of the dates or the date in relation to the bedroom incident on which Charges 3 and 4 are based. [MG] started out by thinking it was 2 December based on a text message on her phone but then seemed to come down more on the side of it being 19 November because of Facebook messages. But, in any event, how important is that? Whilst you can take it into account it is hardly going to so undermine her credit that you would reject her evidence. How could you expect her to remember the date some time later. That is not the way the human memory works. You have to have a hook to grab onto, just like she has with the Cup long weekend incident.
[The Prosecutor] asked you to remember that there was a lot going on in the latter stages of the relationship between [the applicant] and [MG], a lot of conflict, and that in those circumstances where they are coming and going or she is coming and going it is hard to pin down a specific date and she could not legitimately be criticised for not being able to do so. And he provided, as an example of that, the part of [the applicant ‘s] cross–examination where he in effect agreed it was hard in the record of interview when he was being interviewed to remember back and he made a mistake about there being no contact between he and [MG] in November or December of 2012 when clearly there had been.

[The Prosecutor] says don’t worry so much about the date, that is not an element the Crown have to prove. The overriding question for you the jury is, ‘Are we satisfied beyond reasonable doubt that the events [MG] described as having occurred in her bedroom on that night actually happened?’ That is the question.[67]

And he said further:
[Defence Counsel] then turned to Charges 3 and 4, the incident allegedly having occurred in the bedroom, the two rape charges. He reminded you that [MG] had had difficulty remembering the date on which that alleged incident had occurred. That should cast some doubt on her credibility and reliability not being able to remember such a notable incident. He said it also makes it difficult for [the applicant] to try and defend himself when he has an uncertain timeframe which shifts because she has changed her evidence and her description about when that occurred … it makes it very difficult for him to go and try and check phone records or Facebook messages or whatever to try and show, not that there is any onus on him, that it could not have occurred on a specific date at a specific time because they were in fact not together. So he is deprived, in essence, of trying to do that.[68]

[67]Ibid 2012–13.

[68]Ibid 2027–28 (emphasis added).

This was not a case involving historical offending. There was no long delay between the alleged offences and the complaint being made. The applicant, in facing the complaint evidence of MG, was not asked to defend himself against allegations concerning events that occurred long ago. The trial judge was not satisfied that the applicant had suffered significant forensic disadvantage arising from the change in MG’s testimony. We see no error in his Honour’s conclusion.

The fact that MG changed the date from 2 December to 19 November 2012 made little substantive difference to the evidence since the phone records and Facebook messages still followed the alleged rape. If anything those existing records became more cogent because they now commenced on the day following the alleged rapes. The jury were entitled to look at these records and messages as casting light on the relationship of the applicant and MG in that critical two to three week period. Understandably, defence counsel sought to make much of these records and messages, submitting to the jury that MG had resumed an amicable relationship with the applicant after the alleged offending. That was said to be inconsistent with her allegation that she had been raped. In oral argument defence counsel was unable to indicate how these submissions would have been materially more cogent had earlier phone records been available. It should not be overlooked that the phone records sought only related to ‘phone 195’ (which commenced on 20 November 2012). Counsel made no request to obtain phone records of the previous phone.

Ground 7 — Whether the jury’s guilt on charge 3 was unreasonable or unsupportable on the evidence?

The applicant submitted in his written case that the jury could not have been satisfied beyond reasonable doubt as to charge 3, the oral rape of MG, for the following reasons:

· The inconsistency and conflict in the evidence as to the date of the commission of the offence;

· The complainant’s inability to identify a date;

· The complaint evidence of the witness SB as to charge 3;

· The absence of any reference to the matter [i.e. the rape] in the applicant for an Intervention Order, and the consistency of conduct generally post-offence;

· The delay in reporting the matter to the police and the circumstances in which the police complaint was made.

We may dispose of (i) and (ii) immediately in light of what we have said above about it being reasonably open to the jury to make up their own minds as to conflicting evidence and allegations of sexual offences that lack specific dates.

In relation to (iii), the evidence of the witness SB was that the complainant MG ‘gave him [i.e. the applicant] oral sex’, which implied that it was consensual sex. This contradicted what was said in evidence by MG herself. This inconsistency was noted by the trial judge and picked up by defence counsel at trial, who made much of it in running and in his closing, submitting to the jury that MG’s evidence lacked credibility. We reiterate, once again, that it was a matter for the jury to decide what to make of the evidence. It is not for this Court to set the conviction aside because the evidence is in parts inconsistent. It does not follow from SB’s evidence that the jury were bound to acquit. It was reasonably open to them to draw the inference, despite the inconsistency, that the applicant was guilty of orally raping the complainant MG. Or, had the jury decided to, they could have acquitted on charge 3 (the oral rape) and convicted on charge 4 (the vaginal rape). The point is it was up to them.

The decision of this Court in Ferguson[69] remains a useful starting point in seeking to evaluate the state of the law with respect to the ‘unsafe and unsatisfactory’ ground. There the Court listed a number of questions that an intermediate appellate court must be satisfied of if it is to overturn a verdict on this basis:

Since the High Court’s 1994 decision in M v The Queen, the approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground has been clear. The analysis involves the following steps:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[70]

[69](2009) 24 VR 531.

[70]Ibid 593 [383] (citations omitted).

Applying this analysis to the present appeal it is evident that the jury were entitled to use their experience and common sense, having seen and heard all the evidence, to make a determination as to the guilt of the accused as against each of the individual charges. The relevant test, stated by the High Court in Libke v The Queen[71] (and cited with approval by this Court in Ferguson), is ‘whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.’[72] It is not enough, as this Court has repeatedly said, to show that there was evidence in play which might have been used by the jury to infer that the accused was not guilty of the offences charged.
[71](2007) 230 CLR 559 (Hayne J with whom Gleeson CJ and Haydon J agreed).
[72]Ibid 596-70 (citations omitted) (emphasis in original).

The applicant in his particulars (iv) and (v) points to further inconsistencies in MG’s evidence, arising from her earlier application for an Intervention Order, her conduct after the alleged offence, i.e. temporarily resuming a relationship with the applicant, and the delay between when the offence was alleged to have occurred and when she brought her complaint to the police. As we have said, these are all pieces of evidence which the jury were reasonably entitled to make use of, to weigh against all the circumstances of the case, and to reach a verdict by whatever sequence of reasoning they deemed fit.

We see no reason to interfere with the verdict as it was returned by the jury. Having carried out our own independent assessment of the evidence we harbour no doubt concerning the applicant’s guilt. On all the evidence it was, in our view, well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences upon which he was convicted.

The application for leave to appeal against sentence
Applicant’s submissions

Although in the applicant’s written case it was acknowledged that ‘[t]he facts relating to charges 3 and 4 were serious and deserving of a significant period of imprisonment’, nonetheless it was submitted that the sentences imposed ‘were reflective of a more serious type of offending that would contain aggravating features not present in this case’.

With respect to the circumstances of charge 7, it was submitted that the offence ‘was of brief duration and limited criminality compared to charge 3’. Although the applicant was to be sentenced as a serious sexual offender for this charge, it was submitted that ‘the imposition of the same sentence as that imposed on charges 3 and 4 reflects error’. The sentence for this charge, so it was argued, cannot have ‘encompassed criminality that is also reflected in charges 5, 8 and 9’. And as to charges 1, 5, 8 and 9, it was said that although ‘clearly’ sentences of imprisonment had to be imposed, the ‘length and the degree of cumulation across these sentences is manifestly excessive when one isolates the specific criminality each charge encompasses‘.

Finally, it was submitted that, despite the judge’s sentencing remarks that he took totality into account, the ‘degree of cumulation, particularly with respect to charges 1, 4, 5 and 8, has resulted in a total effective sentence that offends the totality principle’. The cumulation ordered between the sentences on individual charges ‘suggests that each sentence has received a loading due to the overall criminality, thus resulting in a degree of double punishment’.

Crown’s submissions

Whilst charges 3 and 4 did not have some of the aggravating features sometimes seen in these cases, the respondent nevertheless submitted that they represented serious examples of the offence of rape. It was submitted that the two offences ‘had an element of violence’ and ‘whilst occurring in the course of single incident, were each distinct attacks’ so as to warrant a measure of cumulation.

On charge 7, rape, and charge 8, making a threat to kill, the applicant was sentenced as a serious sexual offender, so that cumulation is ‘presumed’. The respondent submitted that the incident ‘was sustained and could only have been a terrifying experience’. Charge 5, intentionally causing injury, was a serious example of that type of offence, extending over a period of time and involving the use of the hammer and the clock. Likewise, so it was contended, charge 8, making a threat to kill, was a serious example of the offence, ‘involving multiple threats in the context of an ongoing episode of violence’. As to charge 9, the judge ‘acknowledged that the false imprisonment was not as serious an example as the other charges and this is reflected in the sentence and the lack of cumulation’.

Ultimately, the respondent submitted that no error in the judge’s approach to cumulation could be made out. It was appropriate for the judge ‘to take into account the criminality of the entire incident and the interplay between the offences to determine cumulation’. Proper sentences were imposed on each charge, they being ‘moderated by the effect of cumulation to take into account the need for an appropriate total effective sentence’. The total effective sentence reflected both the principle of totality and the need for community protection.

Discussion

In our view, the individual sentences on each of charges 1, 3, 4, 5, 7, 8 and 9 are within the range of those open in the sound exercise of the sentencing discretion. We have reached a different conclusion, however, with respect to the orders for cumulation between the sentences on charges 3 and 4, and with respect to the measure of cumulation of the sentence on charge 7.

It will be remembered that charges 1, 3 and 4 relate to MG. The individual sentence of 12 months’ imprisonment for the ‘Cup Eve’ injury charge (charge 1) is within the appropriate range, particularly when one considers that the applicant was in the recent past convicted of one charge of recklessly causing injury and one charge of breach intervention order. That prior offending was perpetrated against another female — his former wife — in the context of a property dispute that the applicant was having with her in the aftermath of the break-up of that relationship. In the Magistrates’ Court on 12 November 2010, he was sentenced to a three month suspended sentence of imprisonment and a fine, that sentence being set aside on appeal to the County Court, and a community based order substituted.

Quite clearly, the latter episode of offending involving MG, on 2 December 2012, was far more serious than the former assault upon her. On the latter occasion, the applicant forcefully orally raped MG, and then raped her vaginally, with his penis. Plainly, each of those rapes merited a substantial sentence of imprisonment; but, given that the two penetrations were in effect part of a single continuing transaction, substantial concurrency was also called for. The imposition of individual sentences of seven years’ imprisonment on each charge, with cumulation of two years ordered between the sentences on these charges, led to an overall sentence for that episode of offending of nine years. Although we do not consider the individual sentences of seven years’ imprisonment to be outside the appropriate range[73] — particularly where there is no amelioration of sentence flowing from a plea of guilty — in all of the circumstances we regard the cumulation between the sentences on those two charges, for what was in essence a single episode of offending, as being manifestly excessive.
[73]See DPP v Werry (2012) 37 VR 524; Singh v The Queen [2014] VSCA 250, [34]–[35]; Di Giorgio v The Queen [2016] VSCA 335, [65]–[68].

Furthermore, in our view, the extent of the cumulation of the sentence on charge 7 was manifestly excessive. Axiomatically, it is necessary that a sentencing judge impose individual sentences that, so far as is practicable, reflect the objective gravity of each offence, whilst at the same time rendering a total effective sentence which, so far as is practicable, reflects the totality of the criminality embraced by the totality of the charged offences.[74] As we have said, in our opinion, the degree of cumulation of the sentence effected on charge 7 is manifestly excessive, and, particularly when taken with the cumulation ordered on charge 3, has produced a total effective sentence which offends the principle of totality.
[74]Mill v The Queen (1988) 166 CLR 59, 62–3 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); Pearce v The Queen (1998) 194 CLR 610, 623–24 [45] (McHugh , Hayne and Callinan JJ).

We would thus grant leave to appeal, allow the appeal and set aside the sentence imposed in the County Court.[75] In lieu, we would impose the same individual sentences on each of charges 1, 3, 4, 5, 7, 8 and 9 as were imposed by the County Court, but would vary the orders for cumulation. Ultimately, we intend to impose a total effective sentence of 11 years and four months’ imprisonment, with a non-parole period of eight years.
[75]Criminal Procedure Act 2009, s 282(1).

In achieving our intended purpose, we note that with respect to charges 1, 3, 5 and 9 there is a legislative direction that any sentence passed on them is to be concurrent with other sentences unless otherwise directed;[76] but on charges 7 and 8 — for which the applicant is to be sentenced as a serious sexual offender — there is a legislative direction that sentences imposed on those charges are to be served cumulatively unless otherwise directed.[77] Faithful adherence to the legislative regime is thus cumbersome.
[76]Sentencing Act 1991, s 16(1).
[77]Sentencing Act 1991, s 6E.

We will resentence the applicant as follows. The sentence of seven years’ imprisonment on charge 3 will remain the ‘base’ sentence. We will order that four months of the sentence on charge 1, and 12 months of the sentence on each of charges 4 and 5, be served cumulatively with each other and with the sentence on charge 3; and that five years and six months of the sentence on charge 7, and 12 months of the sentence on charge 8, be served concurrently with each other and with the sentence on charge 3. The resulting total effective sentence will thus be 11 years and four months’ imprisonment, upon which we would fix a non-parole period of eight years. Otherwise, we would confirm all other sentences and orders made by the sentencing judge (including that the applicant is sentenced as a serious sexual offender on charges 7 and 8). We will also declare appropriate pre-sentence detention.

The intended effect of our orders with respect to the imprisonment to which the applicant is to be sentenced is set out in the following table:

Charge Offence Sentence Cumulation[78]

1 Intentionally causing injury 12 months 4 months

3 Rape 7 years Base

4 Rape 7 years 12 months

5 Intentionally causing injury 30 months 12 months

7 Rape 7 years 18 months

8 Making a threat to kill 18 months 6 months

9 False imprisonment 9 months —

Total effective sentence 11 years and 4 months’ imprisonment

Non-parole period 8 years

[78]See [133]–[134] above.

- - - - -

Charge	Offence		Sentence	Cumulation
1	Intentionally causing injury[6]		12 months	4 months
3	Rape		7 years	Base
4	Rape		7 years	2 years
5	Intentionally causing injury[7]		30 months	12 months
7	Rape		7 years	30 months[8]
8	Making a threat to kill		18 months	6 months
9	False imprisonment		9 months	—
Total effective sentence		13 years and 4 months’ imprisonment
Non-parole period		10 years
Pre-sentence detention		874 days
Other orders		· Pursuant to s 6F of the Sentencing Act 1991 sentenced as a serious sexual offender on charges 7 and 8. · Disposal order with respect to property (claw hammer; hammer; hair extension; screw driver). · On charges 3, 4 and 7, registration for life under the Sex Offenders Registration Act 2004. · Forensic procedure order under s 464ZF(2) of the Crimes Act 1958.

Charge	Offence		Sentence	Cumulation[78]
1	Intentionally causing injury		12 months	4 months
3	Rape		7 years	Base
4	Rape		7 years	12 months
5	Intentionally causing injury		30 months	12 months
7	Rape		7 years	18 months
8	Making a threat to kill		18 months	6 months
9	False imprisonment		9 months	—
Total effective sentence		11 years and 4 months’ imprisonment
Non-parole period		8 years

[2017] VSCA 94

2 May 2017