Palise v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0196

HARLEY JARTHUR PALISE	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, BOYCE, and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 51
JUDGMENT APPEALED FROM:	[2021] VCC 2071 (Judge Johns)

---

CRIMINAL LAW – Appeal – Conviction – Rape – Prosecution case that applicant assisted or encouraged to rape complainant or agreed with principal offender to rape complainant – Whether verdict unreasonable or cannot be supported by the evidence – Whether evidence sufficient to establish that complainant so intoxicated that did not consent to sexual penetration by co-offender and that co-offender did not have reasonable belief complainant consenting –Whether evidence sufficient to establish that applicant encouraged or assisted co-offender to rape complainant or agreed that co-offender rape complainant.

Crimes Act 1958 (Vic) ss 36, 323 (1) (a), (c), 324 (1).

---

Counsel
Applicant:		Mr M Weinman
Respondent:		Ms M Mahady
Solicitors
Applicant:	Gallant Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

The applicant was charged on indictment with two charges of rape, which were alleged to have been committed on 16 June 2018. After a sixteen day trial, on 20 August 2021 the jury returned a verdict of guilty in relation to both charges.
Following a plea presented on his behalf, the applicant, on 16 December 2021, was sentenced by the trial judge as follows:

Charge Offence Maximum Sentence Cumulation

1 Rape 25 years 8 years 6 months Base

2 Rape 25 years 8 years 1 year 6 months

Total Effective Sentence: 10 years’ imprisonment

Non-Parole Period: 6 years and 3 months’ imprisonment

Pre-sentence Detention 874 days

Other orders Forfeiture order

The applicant seeks leave to appeal against his conviction on charge 2 on the ground that the jury verdict on that charge was unreasonable, or could not be supported having regard to the evidence.
The applicant did not file a notice of application for leave to appeal against conviction until 20 December 2022. On 16 December 2022, he filed an application for an extension of time within which to file the notice of application for leave to appeal. The application for extension of time was supported by an affidavit of the applicant’s solicitor, affirmed 15 December 2022.

Extension of time

It is clear that there has been a very substantial delay in the filing of the notice of application for leave to appeal in this matter, as the time, prescribed by s 275(1) of the Criminal Procedure Act 2009 within which to file that application, expired on 13 January 2022.
The application for an extension of time was supported by an affidavit of the applicant’s solicitor, which explained the lengthy delay in the filing of the application for leave to appeal.
The applicant engaged his current solicitors on 18 March 2022, to consider making an application for leave to appeal against conviction and sentence. During the following four months, the solicitors conferred with the applicant, analysed the material from the trial, received advice from counsel, and, on 17 June 2022, completed and lodged an application to Victoria Legal Aid (‘VLA’). On 22 July 2022, VLA notified the solicitors that aid was only approved for leave to appeal against conviction on charge 2, and not on charge 1, nor on an appeal against sentence.
Pursuant to instructions from the applicant, on 17 August 2022, an application was made to VLA to reconsider its decision not to fund an appeal against conviction on charge 1. For that purpose, new counsel was briefed in the matter. On 11 October 2022, VLA informed the applicant’s solicitors that the reconsideration request had been refused. On 3 November 2022, the applicant instructed the solicitors to proceed only with the appeal against conviction on charge 2. Steps were then undertaken, by the solicitors, to brief counsel to prepare the necessary documentation. As we have noted, ultimately, the application for leave to appeal against conviction was filed on 20 December 2022.
Counsel for the respondent properly accepted that the application for leave to appeal is arguable, and therefore the applicant should be granted an extension of time within which to commence that application. Accordingly, the application for an extension of time was granted.

Circumstances of the offending

On the evening of 16 June 2018, the applicant attended Crown Casino to celebrate a birthday with a group of friends, that included Jarrod Thomas, Jake and Jarryd Woolcock, Erjan Arslanov and Nicholas Amuso. The applicant travelled to Crown Casino in his Wildtrak utility vehicle, in company with Jarrod Thomas and Erjan Arslanov, and the other members of the group drove there in Jarryd Woolcock’s Nissan Navara vehicle.
Shortly before 4:30 am on 17 June 2018, the group departed from Crown Casino in a convoy. The applicant’s vehicle was driven by Jarrod Thomas. Shortly after 4:30 am, the Nissan Navara stopped near the intersection of Grattan Street and Lygon Street, Carlton, after the occupants of it had observed the complainant, slumped on the footpath near the intersection. The applicant’s vehicle also stopped. Three of the occupants of the Nissan Navara exited the vehicle and attended to the complainant, who appeared to be in a semi-conscious state.
Earlier in the evening, the complainant had been socialising with a group of friends, who had gathered for a farewell party for the complainant’s friend, BE.[1] They had spent some time at the Doutta Galla Hotel in Flemington, before attending the Club Retro in Lonsdale Street, Melbourne. The complainant and BE left the club at 4:00 am, and got into a taxi. They then exited the taxi in Lygon Street. They sat down in a doorway for a few minutes, before proceeding down Lygon Street together. BE crossed the intersection at the corner of Lygon Street and Grattan Street alone, while the complainant remained slumped on the footpath.
[1]A pseudonym.
It was minutes later that the occupants of the Nissan Navara observed the complainant lying on the footpath. When they approached, and spoke to her, she told them that she lived in Mernda. As the applicant and Mr Thomas were headed in that direction, Mr Thomas agreed to drive the complainant to her home. The complainant was assisted to enter the vehicle.
At about 4:53 am, the Wildtrak utility, driven by Mr Thomas, detoured to the back streets of Coburg, and stopped in Harding Street, where it remained for about fifteen minutes, before resuming the journey to Mernda. During that period, the applicant penetrated the complainant’s vagina with his penis and ejaculated during penetration. That conduct constituted charge 1 on the indictment. Mr Thomas also penetrated the complainant’s vagina with his penis and ejaculated during penetration, that conduct being the subject of charge 2.
Mr Thomas and the applicant then proceeded to drive the complainant to her home address in Mernda. After some delay, she exited the vehicle and entered the premises at 5:51 am. At the time, she was not wearing underwear, which was later located in the front garden of that residence by her fiancé, TB.[2]
[2]A pseudonym.
The complainant had no memory of a significant part of the proceedings on the previous night, and she did not recall at all any of the events involving the applicant and Mr Thomas. At one stage during the morning, she went to the toilet and was unable to locate the tampon she had been wearing on that day. Subsequently, she attended the Austin Hospital, where she was medically examined, and the tampon was located high in the vagina. Subsequent examination of vaginal swabs revealed the presence of spermatozoa. An examination of the DNA profile of the swabs established that both the applicant and Mr Thomas were contributors.
The applicant was arrested and remanded on 26 June 2018. At the trial, the prosecution’s case on charge 1, was that the applicant himself raped the complainant. On charge 2, the prosecution alleged that the applicant was involved in the commission of the offence, pursuant to s 323(1) of the Crimes Act 1958, on the basis that he was a party to an agreement, with Thomas, to commit the offence, or alternatively, on the basis that he intentionally assisted and encouraged Thomas in his commission of the offence. As we have noted, the applicant was convicted on both charges. The proposed ground of appeal is directed to his conviction on charge 2.
In order to determine that ground, it is necessary to summarise the evidence, given at trial, in a little detail.

Summary of evidence

The complainant gave evidence that in June 2018, she was then living at an address in Mernda with her fiancé, TB.
On Saturday 16 June 2018, the complainant and a number of friends attended a farewell party for a mutual friend, HC,[3] who was intending to travel overseas. At approximately 6:00 pm, she was picked up from her home address by her friend, BE, and her husband, who drove them to an address in Craigieburn. There, they met up with another friend, MK,[4] whose husband drove them to the Doutta Galla Hotel in Flemington. They remained at the hotel from about 7:30 pm until 10:30 pm or 11:00 pm. While they were there, the complainant shared two bottles of sparkling wine with her friend, BE. She also had a ‘shot’ of a spirit. In addition, while at the hotel, she snorted a very small amount of cocaine. As a result of doing so, she said she felt ‘a little bit tipsy’, and she felt that her senses were heightened a little bit for a short time.
[3]A pseudonym.
[4]A pseudonym.
The group then departed from the Doutta Galla Hotel between 10:30 pm and 11:00 pm, and travelled by taxi to the Retro Nightclub on Lonsdale Street. There, they attended a bar that was on the second level of the premises. While they were there, the complainant drank a couple of glasses of premixed vodka. At that time, she said she was feeling ‘still tipsy, happy … like having a good time’. She did not consume any other substances while she was at the nightclub. The complainant had no memory of subsequently leaving the nightclub. Her last recollection was dancing in a circle with her girlfriends at the club with a drink in her hand.
The complainant’s next recollection was waking up at about 8:00 am the next morning in the main bedroom of her Mernda home. Her fiancé TB and a mutual friend, CS,[5] were present. They said that they were worried about her, because she had arrived home without her underwear and her engagement ring. They also noticed that she had some bruising on her upper thighs, so she had a look and did notice that bruising. When the complainant went to the toilet, she noticed that the tampon, which she had inserted the previous evening, was no longer in place. She was also unable to find her engagement ring. She telephoned the sister of a friend, who was a nurse at the Austin Hospital, and was advised to contact Northern CASA. As a consequence, an appointment was scheduled for the complainant to attend at the Austin Hospital at 12:30 pm that day. In the meantime, her underwear was located at the front of the house and placed in a plastic bag, which was later provided to the police.
[5]A pseudonym.
The complainant, in company with her fiancé, TB, and BE, attended the Austin Hospital at the appointed time. She underwent a forensic examination. The tampon was located, but it had been ‘pushed really far away up’.
In cross-examination, the complainant said that when she was spoken to by a police officer at the Austin Hospital, she denied that she had consumed any drugs on the previous evening. She agreed that the statement that she made to the police officer was a lie. She further said that she did not remember using any drugs when she was at the Retro Nightclub, and she thought that the amount of alcohol she consumed on the night was no more than that which she would normally consume on a night out. As a result of that consumption, she felt tipsy. When asked if she was in control of her faculties, she said:
I remember just having fun, dancing, singing, I don’t remember being anything out of control or anything like that.
The complainant further said, in cross-examination, that she did not believe that anyone had spiked her drinks at the Doutta Galla Hotel, because at that time, she was drinking in a ‘round table situation’. When she was at the Retro nightclub, she was holding her drink bottle in her hand. She recalled dancing and singing while she was at the nightclub. She denied that she had any memory of what happened after that, and she denied having any memory of getting into a taxi and going to Lygon Street. On the next morning, she did not feel hungover, and she felt well-rested, although she had only had about two hours’ sleep.
Counsel for the applicant then put to the complainant the following propositions in cross-examination, each of which she denied: that she recalled getting into a vehicle in which two men were sitting in the front seats; that she asked one of those men to sit in the back seat with her; that she rubbed the chest and body of the passenger who was in the front seat, and said to him, ‘Fuck me baby, fuck me’; that she leant between the driver’s seat and the passenger seat and kissed the passenger; that she grabbed his penis and began to stroke it, and straddled or climbed on top of him and rubbed herself against his groin area, inserting his penis into her vagina; that she had consensual sexual intercourse with the applicant in the back seat of the vehicle; and that when the vehicle pulled up in front of her house in the early hours of the morning, she refused to get out of the vehicle, and she said to the occupants, ‘Come inside and fuck me’. As we have noted, the complainant denied each of those propositions that were put to her.
The next four witnesses, who gave evidence, were friends of the complainant, who attended the gathering at both the Doutta Galla Hotel and the Retro nightclub, namely, HC, DM,[6] MK and BE.
[6]A pseudonym.
HC gave evidence that the farewell party, that was organised for her, commenced at the Doutta Galla Hotel in Flemington at about 4:00 pm on 16 June 2018. She recalled that the complainant was drinking alcohol from a bottle of champagne, but she did not, at any point, see the complainant consume any drugs at the hotel. At about 11:30 pm, HC, together with BE, MK and the complainant, left the Doutta Galla Hotel and travelled by taxi to the Retro nightclub in Lonsdale Street, Melbourne. At that point, there was nothing out of the ordinary in the behaviour of the complainant. The group spent a number of hours together at the Retro nightclub. At one point, they went to the bathroom, where HC shared some cocaine with her friends, including the complainant. Before they did so, she had not paid much attention to the complainant’s behaviour, but she recalled that the complainant was drinking alcohol. After they had consumed the drugs in the bathroom, they were all drinking and dancing together. At 4:00 am, HC left the nightclub with DM, and, at the same time, BE and the complainant also left. HC saw the complainant and BE get into a taxi cab before she did.
In cross-examination, HC confirmed that she observed nothing out of the ordinary in respect of the conduct of the complainant at the Doutta Galla Hotel. She did not observe the complainant consume any cocaine at the hotel. When they attended the Retro nightclub, they consumed the cocaine at between 1:00 am and 2:00 am. She was not aware that any of her other friends, including the complainant, had any cocaine of their own. HC said that nothing unusual happened while they were at the nightclub, they stayed together and went to different floors of the nightclub during the night. HC confirmed that she did not make any observations, during the period that they were at the nightclub, of the complainant appearing to be intoxicated. She had no recollection of seeing the complainant falling over, vomiting, or slurring her words. HC said that she was not taking any notice of the complainant in particular. However, they did spend a number of hours together in close proximity of each other’s company.
HC said that she did not recall much about what happened later in the night, although she did have a recollection of leaving the nightclub, being out the front of it, and getting into a taxi. She confirmed that there was never any occasion during the evening when she had to intervene with bouncers on the part of the complainant or BE to persuade the bouncers to let them back into the premises. She also confirmed that there was never any occasion during the night when she saw the complainant fall over or need assistance to walk.
DM gave evidence that she attended the Doutta Galla Hotel at about 5:00 pm. She first saw the complainant that evening towards the end of the time that the group were at the hotel, which was at about 10:30 pm or 11:00 pm. While at the Doutta Galla Hotel, the complainant was sitting with BE and HC at a table of their own. The group then departed to go to the Retro nightclub at about 11:00 pm, where they remained until about 3:00 am. During that time, DM observed the complainant drinking alcohol. She did not observe the complainant consume any drugs. However, when asked about the complainant’s demeanour, DM said that the complainant was intoxicated. The complainant was finding it difficult to stand up, and she was twice evicted from the nightclub. DM saw the complainant fall over on two occasions, which were quite close together in time. A bouncer came and escorted the complainant out of the nightclub. Somehow, the complainant returned, and not long after that, she was removed again from it. DM went downstairs to check on the complainant, and she observed the complainant sitting on the pavement outside the nightclub.
DM left the nightclub in a taxi with HC. At the same time, the complainant left with BE in a separate taxi. When the complainant was waiting for the taxi, DM observed her to be disoriented, she was swaying, and yelling out loudly.
In cross-examination, DM said that during the evening she drank a bottle of wine, four or five vodka lemonade drinks at the Doutta Galla Hotel, and also two or three bottles of Smirnoff at the Retro nightclub. DM also said that she had drunk a bottle of wine shortly before she had departed her home at 4:00 pm to attend the gathering.
DM had not known the complainant before that night. She did not observe the kind of footwear the complainant was wearing. The dance floor of the nightclub was a raised platform on which it was possible to catch your foot. DM confirmed that, at the time at which she said that the complainant was evicted from the nightclub, HC was present. She agreed that when they left the nightclub, the complainant did not need any assistance getting into the taxi.
MK gave evidence that on 16 June 2018, she attended the Doutta Galla Hotel function with the complainant and BE, arriving at the premises at about 7:45 pm. She observed that both the complainant and BE were drinking champagne together. The group left to go to the Retro nightclub at about 11:00 pm. When they arrived at the club, they had a drink, and danced. She said that they were mostly together during the evening. At one point, she observed the complainant, BE and HC in a toilet cubicle in the upstairs bathroom. The complainant had a bag of white substance in her hand, and she licked it. MK did not recall that there was any noticeable change in the complainant’s behaviour after she had the substance. MK could not recall how much the complainant had drunk that evening. She did not notice anything, which might have indicated that the complainant was affected by the substance.

In cross-examination, MK said that she travelled with the complainant and BE in a taxi from the Doutta Galla Hotel to the Retro nightclub. That drive took about 15 minutes. From her perspective, both the complainant and BE were fine. She did not see any sign of either the complainant or BE being affected by drugs. She said that she observed the complainant lick the powder at the Retro nightclub between about 1:00 am and 2:00 am. Following that, there was more dancing together. At some point, she recalled that the complainant and BE left the premises in order to smoke a cigarette. MK left the nightclub at 3:20 am. When she did so, the complainant and BE looked fine. They were drunk, but she would not have left them at the nightclub if she thought that they were not ‘okay’ to get themselves home. MK did not believe that either of them were intoxicated. She did not have any recollection of the complainant slurring her words, stumbling, falling over or being argumentative.
In her evidence, BE recalled attending the Doutta Galla Hotel in company with the complainant and HC. They arrived at the hotel at about 7:30 pm and subsequently, at about 11:30 pm, they travelled in a taxi to Club Retro. While they were at the Doutta Galla Hotel, BE and the complainant shared three bottles of sparkling wine. She said that they were both tipsy at that time, but they were ‘kind of in control of what we were doing … just having fun’. BE said that while they were at the hotel, some drugs were consumed, and she saw the complainant have some cocaine in a bathroom. She said that the drug did not have a ‘huge amount’ of an impact on the complainant, she just became a bit more energetic and talkative for about half an hour or so. When they arrived at Club Retro, they drank premixed vodka and lemonade together. BE could remember dancing on the floor with her friends. She could not recall leaving the Club Retro. Her next recollection was waking up at the 7-Eleven store on Lygon Street, being assisted by two police officers. She was unable to recall at what point in the evening she had separated from the complainant. On the following day, she accompanied the complainant to the Austin Hospital. Subsequently, she showed police a copy of her Facebook Messenger, which contained messages, which were sent to her by the complainant’s fiancé, TB, at 4:09 am and 4:17 am, with one reply by her at 4:20 am. She did not recall having received or sent those messages.
In cross-examination, BE agreed that she told police, in her statement, that there was nothing out of the ordinary about the complainant’s behaviour on the night in question. She could recall both of them were getting quite intoxicated towards the end of the night, but there was not anything unusual about the way it affected the complainant. During the fifteen to twenty minute taxi drive from the Doutta Galla Hotel to the Retro nightclub, she did not observe anything unusual about the complainant’s presentation, demeanour or conversation. While they were at the club, if they wished to have a cigarette, they were required to negotiate the stairs. There were no mishaps involving the complainant going up and down the stairs for that purpose. BE confirmed that the complainant was wearing high heeled shoes. Neither she nor the complainant were evicted from the premises by bouncers, nor were they spoken to by bouncers. At no stage could she recall the complainant being confrontational with strangers, or yelling at them. She said that the group of women, who attended the Retro nightclub, were seated at one table, sharing three bottles of sparkling wine. It was a large group, estimating there were about 20 women in it.
Phool Riaz gave evidence that, on the evening of 16 June 2018, into the early hours of Sunday, 17 June 2018, he was working as a taxi driver. His last job for the night was at about 4:00 am when he picked up two females at a taxi rank in Lonsdale Street in the city. One of the women said that she wanted to eat some Italian food in Lygon Street. Accordingly, Mr Riaz dropped them off in Lygon Street, next to the park. He said that one of the females was pretty drunk. She did not know what she was doing, and that her friend was looking after her. The female who appeared drunk could not walk or talk properly. When she was waiting for the taxi at the rank, she was not on her feet properly.
The next witnesses, who gave evidence in the trial, were Jake Woolcock, his brother Jarryd Woolcock, Nicholas Amuso and Erjan Arslanov, who, with the applicant, had attended the celebration of the birthday of Erjan Arslanov at the Crown Casino on the evening of Saturday, 16 June 2018.
Jake Woolcock gave evidence that, on that evening in question, he, together with his brother Jarryd, and friends Nick Amuso, Erjan Arslanov and Jarrod Thomas, travelled in the Nissan Navara, driven by Jarryd, to Crown Casino to celebrate Erjan Arslanov’s 22^nd birthday. While they were en route, they met with the applicant, who was in his Ford Ranger Wildtrak utility vehicle, in Epping. The group arrived at Crown Casino at about 10:30 pm, where they remained until 4:00 am. While they were at the casino, he observed the applicant drinking alcohol. When asked about the applicant’s sobriety, Jake Woolcock said, ‘I guess he was all right’.
When the group departed from the casino, Jarrod Thomas drove the Wildtrak ute, and the applicant was the passenger in it. The other members of the group left the casino in the Nissan Navara. The Wildtrak ute was travelling either behind, or alongside, the Nissan Navara. When the vehicles stopped at the traffic lights at the intersection of Lygon Street and Grattan Street, Jake Woolcock looked to his left and saw a female lying on the footpath, with her back against the wall of a restaurant. A man was standing over her. The Nissan Navara proceeded through the intersection and parked on the other side of it. Jake Woolcock and his friends then went back to see if the girl was all right, and Jarryd Woolcock remained in the vehicle. When they attended on the girl, Erjan Arslanov talked to her. He asked if she needed a lift home, and she answered in the affirmative. She said that she lived in Mernda. As a consequence, it was arranged that Jarrod Thomas and the applicant would drive her home. The Wildtrak ute was parked on Grattan Street, in front of the restaurant, at that time. Accordingly, Erjan Arslanov lifted the female to her feet and helped her walk to the vehicle, which was a distance of about 1½ metres. As she walked to the vehicle, she stumbled ‘a little bit’, and, while she was being assisted into the vehicle, she slipped on the side step of the utility. Erjan Arslanov picked her up and helped her into the utility. While that was occurring, both Jarrod Thomas and the applicant remained in the utility.
The Nissan Navara then continued on its journey with the Wildtrak ute following it. After about ten or fifteen minutes, the Wildtrak ute turned off and Jake Woolcock did not see them after that. Subsequently, after he got home, he received a telephone call from the applicant at 5:16 am. The applicant told Jake Woolcock that the female had arrived home safely.
In cross-examination, Jake Woolcock said that the female was able to talk a little bit. She was responsive to the questions asked of her by Erjan Arslanov. When Erjan asked her where she lived, she responded, ‘Mernda’ without any hesitation. She had to be supported while she walked to the vehicle, and she had to be assisted into the vehicle by Erjan. The witness did not see Erjan climb into the vehicle to fasten her seatbelt for her. In order to enter the vehicle, the female needed to step onto the side step, which was quite narrow. There had been slight rain that morning, so that the step was wet.
Jarryd Woolcock gave similar evidence concerning the attendance of the group of friends at Crown Casino. He said that while they were there, he observed the applicant was becoming intoxicated. He did not think that the applicant was ‘behaving right’, he was ‘loud’. Jarryd Woolcock then described how the group departed from Crown Casino in the Nissan Navara and Wildtrak utility, and they drove to Lygon Street. When they stopped at the intersection of Lygon Street and Grattan Street, they saw the female lying on the ground. Accordingly, they pulled their vehicle over, and Jake Woolcock, Erjan Arslanov and Nick Amuso left the vehicle, while Jarryd Woolcock remained in it. After the men returned to the vehicle, he proceeded to drop Erjan Arslanov and Nick Amuso at their homes, before driving home himself.
Nick Amuso gave evidence as to attending at Erjan Arslanov’s birthday celebration at Crown Casino with Jake and Jarryd Woolcock, Erjan Arslanov, Jarrod Thomas and the applicant. He said that while they were at the casino, both he and the applicant drank alcohol, but the applicant did not seem to be affected by it. The group departed from the casino at about 4:30 am. Mr Amuso was a passenger in the Nissan Navara utility. When the vehicle reached the intersection of Grattan Street and Lygon Street, he noticed a female lying on the ground, with her head lying on her arm. An older man was leant over her. Mr Amuso, together with Erjan Arslanov and Jake Woolcock, went over to the female to see if she was all right. When asked, she responded, ‘I’m fine’. Mr Amuso could tell that she had probably had ‘a little bit to drink’, but otherwise she was ‘pretty normal’. Her eyes were open. When Erjan Arslanov asked where she lived, she responded, but the witness could not recall whether she said Mernda or Doreen. Erjan Arslanov assisted her to get to her feet. While they were walking to the vehicle, the female stumbled, and needed help. She also needed assistance climbing into the vehicle, and, after she had done so, she lay down in the back seat. The witness, with Arslanov and Jake Woolcock, then returned to the Nissan Navara and drove home.
In cross-examination, Mr Amuso stated that at all times, the female had her eyes open. She responded immediately to questions asked of her, and, in doing so, she made sense. In addition to saying where she lived, she volunteered that she was thirty years of age, and that she had a couple of children. He agreed that when the female got to the Wildtrak utility, she was able to get into it herself, although she needed a bit of help to do so. He said that she could not stand up or walk on her own ‘a hundred per cent’. He agreed that the female was neatly and properly dressed, and her shoes were still on.
Erjan Arslanov gave evidence that on 16 June 2018, he celebrated his 22^nd birthday with a group of friends at Crown Casino. He described how the group drove to the casino in the Nissan Navara utility and in the Wildtrak utility. While they were at the casino, they drank alcohol. He observed that the applicant drank more alcohol than him, and that he appeared to be a little bit ‘tipsy’.
The group departed from the casino at about 4:30 am. The applicant and Jarrod Thomas were in the Wildtrak utility, while the rest of the group were in the Nissan Navara utility. When the vehicles stopped at the intersection of Grattan Street and Lygon Street, he saw a female lying on the footpath. Mr Arslanov, together with Nick Amuso and Jake Woolcock, got out of the vehicle and went over to her. The woman was lying with her hand straight out, and the other hand beneath her. She was in the middle of the footpath. Mr Arslanov asked the woman if she was all right, but she was unable to respond, making a sound like ‘m’mm’. She then moved her hand and said, ‘I need to get home’. He asked her where she lived, and she replied, ‘Mernda’. One of the occupants of the Wildtrak utility said that they could drive her home. Accordingly, Mr Arslanov lifted her arm and assisted her to stand up. The female then walked on her own to the vehicle, over a short distance. In doing so, she was unable to walk in a straight line, and she was limping. Mr Arslanov opened the door to the vehicle, and she went to climb the step on it, but slipped and almost fell. Mr Arslanov put his hands on her back and helped her to get into the vehicle. The female then put her seatbelt on and Mr Arslanov closed the door, and then returned to the Nissan Navara with his friends and continued to drive home. In his evidence, Mr Arslanov said that the female was definitely drunk. He said she was ‘probably more than drunk’.
Mr Arslanov arrived home at about 5:20 am. After he had done so, he received a telephone call from the applicant, who said that they had just dropped the female off.
Later on the same day, at about 6:28 pm, the applicant telephoned Mr Arslanov again. The applicant said to Mr Arslanov that they ‘fucked the shit out of her’. He said, ‘Me and Jarryd were going off on her’.
In cross-examination, Mr Arslanov said that after he had assisted the woman to stand, she walked by herself to the vehicle. He did not need to hold her. When she reached the vehicle, she slipped on the step, and Mr Arslanov caught her to prevent her falling. She then got in the vehicle unassisted, and fastened her own seatbelt. When Mr Arslanov closed the door, the female was sitting upright in the seat.
The next two witnesses, TB and CS, gave evidence as to the circumstances of the complainant on the morning of 17 June 2018.
TB, the complainant’s fiancé, gave evidence that in June 2018, he was living in a property in Mernda with his fiancé, the complainant. On the evening of 16 June 2018, he attended a function. On the same evening, he was aware that the complainant was attending a going away party for a friend, BE, in the city. TB returned from the function that he attended at about 11:30 pm. At 4:00 am on the next morning, he awoke, and noticed that the complainant had not returned home. He unsuccessfully attempted to contact her a few times on the telephone. As he was unable to do so, he contacted BE by Facebook, but received no response when he did so.
At about 5:45 am on the same morning, TB heard a car door opening. He went to the window and observed a utility parked out the front of the house, and he could hear a female voice. TB then proceeded to the front door. He noticed that the front sensor light had been activated, and he assumed that the complainant was walking along the path to the house. He then went back to bed. After he had done so, the complainant walked into the bedroom, tripped over, and fell onto the bed. TB asked the complainant why she had not contacted him, and she did not give any response, she was just ‘sort of mumbling’. TB removed her shoes and put her into the bed, under the doona. As he did so, he noted that she was not wearing any underwear. When he asked the complainant about that, she did not respond. TB then made contact with BE, who said that she was at a 7-Eleven store and she was about to get in an Uber to go home.
TB then went back into the bedroom and noted that the complainant was asleep. When he touched her hands, he noted that her engagement ring was no longer on her finger. At 8:00 am, TB telephoned his friend, CS, and asked him to come over to their house. CS attended about ten minutes later, and attempted to talk with the complainant, but she still did not respond to any questions asked of her. She seemed to be very confused. She was unable to explain why she was not wearing her engagement ring.
TB subsequently located the complainant’s underwear on the front path, about ten metres from the front door. He picked up the underpants with a set of tongs, and left them at the front door, under cover. During the morning, they had further conversations with the complainant, trying to ascertain when and how she had become separated from BE. At one point, the complainant told him that she did not have a tampon in, and that she was having a period at that time. She pointed out to TB a bruise on her upper thigh.
It was decided that the complainant should attend hospital for an examination, and an appointment was arranged for her to attend Northern CASA at 12:30 pm. Accordingly, CS, TB, the complainant and BE attended the hospital at that time.
In cross-examination, TB said that when he heard the utility parking outside the house, he heard a female voice. She was not shouting or yelling, and there were no signs of distress. In order to enter the house, she had to use a front door key, which she successfully did. When the complainant entered the house, the lights were turned off. After the entrance, there was a slightly raised platform, which the complainant tripped over, and fell onto the bed. TB said that the complainant appeared to be intoxicated.
CS gave evidence that he arrived at the complainant’s house at 8:15 am on 17 June 2018, after receiving the telephone call from TB. The complainant was asleep in the bed. When she awakened, CS and TB endeavoured to ask questions of her. She did not have much memory as to what had occurred that evening. She did not know how she got home, or who had driven her home. She did not know what had happened to her engagement ring. At one point, she could not find her driver’s licence. When it was pointed out that she was not wearing her underwear, she was shocked.
CS and TB had proceeded to ask a number of questions of the complainant. CS asked her how much she had drunk on the previous evening, and she responded that she did not drink too much. CS and TB then proceeded to the garage to view the CCTV footage, but they were unable to get it to work. The complainant joined them. She was not walking normally, and she had ‘wobbly feet’. The complainant and CS then returned to the bedroom, where the complainant made a telephone call. They were trying to piece together the complainant’s movements on the previous evening. At one point, the complainant went to the bathroom. When she returned, she said that she had her period and she did not have a tampon in place. CS and TB also looked at the complainant’s telephone to check for any activity, including banking transactions. Subsequently, an arrangement was made for the complainant to attend the Austin Hospital at 12:30 am. CS accompanied the complainant, TB and BE to the hospital.
In cross-examination, CS said that when he was trying to wake the complainant up, he did not know how long she had been asleep in bed. Early on, CS asked the complainant if she felt alright, to which she responded that she felt fine. After the complainant came to the garage, she was able to make her own way back to the house, unassisted. She said that she had been to two venues during the previous evening, one was a hotel, and the other a nightclub. The complainant scrolled through her telephone in order to determine the history of electronic purchases she made on the evening.
The remaining witnesses in the prosecution case related to the investigation of the complaint made on behalf of the complainant.
Detective Senior Constable Robert Mitchell, of the Major Criminal Investigation Unit, gave evidence as to using a system by which to acquire data from the Wildtrak utility. That data is obtained from the vehicle infotainment, which records information, including GPS track log data, mobile phone data, and records and app data. Detective Senior Constable Mitchell removed the device from the Wildtrak utility and utilised the Bala system to acquire and produce data from it for the informant in the case.
Detective Senior Constable Katie Lockyer, of the Mernda Sex Offence and Child Abuse Investigation Team, gave evidence of attending the Austin Hospital on 17 June 2018 at 2:22 pm, where she spoke with the complainant. Detective Lockyer had been contacted by the Northern Centre Against Sexual Assault to attend. Detective Lockyer asked the complainant what had happened on the previous evening. The complainant responded that she had no recollection of what had occurred for the majority of the evening, from the point at which she was at the Retro nightclub. The complainant said that she had been to the Doutta Galla Hotel, and that she had consumed some bottles of vodka mixed drinks and some champagne at the two venues. She said that she had not consumed any drugs that evening. She could not recall how she had got home from the Retro nightclub. The complainant produced the underwear that she had worn on the previous evening, which Detective Lockyer bagged to prevent contamination. Detective Lockyer remained at the hospital until 6:00 pm, when she handed the investigation over to Detective Senior Constable Matt Evans.

In cross-examination, Detective Lockyer said that the complainant said to her that, on the night in question, she had consumed alcohol, but not enough to become intoxicated. She recalled getting home at about 6:45 am, which was late, and she had intended to be home a lot earlier than that. The complainant, on three occasions, told Detective Lockyer that she did not consume drugs on that evening. She said that when she woke up, she was well rested and not hungover.
Dr Georgios Manolis, Clinical Forensic Registrar at the Victorian Institute of Forensic Medicine, gave evidence as to having conducted a medical examination of the complainant on the evening of 17 June 2018. The examination included taking a history from the complainant, conducting a medical examination, and collection of forensic and medical specimens. In the course of the examination, Dr Manolis found evidence of bruising on the upper thighs, the knees, and on the right side of the abdomen. The complainant could not recall whether a sexual assault had occurred on the previous evening. Dr Manolis also took forensic specimens, including vaginal swabs. In the course of the examination, she located a tampon at the top of the complainant’s vagina.
Dr Morris Odell was, at the time of the incident relevant to this case, a Senior Forensic Physician at the Victorian Institute of Forensic Medicine in Southbank. In 2018, he was asked to provide an opinion regarding substances that were detected in a blood sample and a urine sample, provided by the complainant. In essence, Dr Odell gave relevant evidence concerning four of those substances.
First, two substances were found in the urine of the complainant, which were both metabolites of cocaine. That finding indicated that the complainant had taken cocaine at some time in the last day or two preceding the examination. Dr Odell explained that cocaine is a stimulant, which increases the level of various neurotransmitters.
The second substance, detected by Dr Odell, was methylenedioxymethamphetamine or MDMA. That substance was found at about a level of .02 milligrams per litre in the urine. Dr Odell explained that that was a low level. MDMA is an amphetamine-type drug which stimulates the consumer.
The third substance detected was nordiazepam, temazepam and oxazepam, which are all metabolites of diazepam, which is a tranquiliser. The fact that those substances were only located in the urine indicated that they had been taken more than a day previously.
The fourth finding by Dr Odell was that there was no alcohol detected in either the blood or the urine. As a consequence, it was impossible to say how much alcohol, if any, had been in the bloodstream seventeen hours previously. Dr Odell also noted that there was a negative result for the drug GHB, which is an anaesthetic drug.
In cross-examination, Dr Odell agreed that the effects of MDMA can last up to six hours, and that it is a drug, which can cause people to act in a manner which is out of character.
Maxwell Jones, a forensic officer with the Victoria Police Forensic Services Centre, gave evidence concerning findings of DNA profile on a number of swabs, taken from the medical examination of the complainant, and also swabs taken from the Wildtrak utility and from items of clothing. In view of the issues that have been agitated on this application, it is not necessary to summarise that evidence in detail. It is sufficient to note that, as a result of the examination and the swabs taken from the complainant, Mr Jones was able to conclude that there was a very strong likelihood that Jarrod Thomas was a contributor to spermatozoa located on the high vaginal swab, on the endo-cervical swab, and on the vulval swab taken from the complainant. Mr Jones also concluded that there was extremely strong evidence that the applicant was a contributor to spermatozoa identified on the high vaginal swab, and that there was very strong evidence that he was a contributor to the spermatozoa located on the endo-cervical swab, but it could be concluded that he was not a contributor to the spermatozoa on the vulval swab.
The final witness for the prosecution was the informant, Detective Senior Constable Matthew Evans. He gave evidence of having conducted the investigation in his capacity as informant. Detective Senior Constable Evans attended the Austin Hospital at 5:18 pm on 17 June 2018 to speak with the complainant and obtain information concerning the events that had occurred on the previous evening. He then conducted an investigation, which included obtaining and analysing the complainant’s telephone, obtaining CCTV footage from the venues that had been attended by the complainant, taking statements from witnesses, seizing the Wildtrak utility, and organising the necessary forensic procedures.
Using the information stored on the infotainment system of the Wildtrak utility, Detective Senior Constable Evans was able to track the movements of the vehicle on the morning of 17 June. In particular, the vehicle turned into Harding Street at 4:53 am, where it remained stationary until 5:08 am. It then turned around, returned onto Nicholson Street, and continued north. It was then stationary, outside the home address of the complainant, between 5:38 am and 5:51 am. The next entry on the system noted that the vehicle drove to the applicant’s address in Doreen, arriving there at 5:58 am, and departing at 5:59 am.
After the close of the prosecution case, the applicant gave evidence. He commenced by describing the gathering, which he and others attended to celebrate the birthday of Mr Arslanov at the Crown Casino. At about 4:30 am, the group left the casino. Jarrod Thomas drove the Wildtrak utility, because the applicant was on P plates and he did not wish to drive because he had been drinking alcohol. The rest of the group left in the Nissan Navara vehicle. The applicant reclined his seat and closed his eyes in order to get some rest. At some point, Mr Thomas did a U-turn in the vehicle, near the corner of Grattan Street and Lygon Street, Carlton. At that point, the applicant heard a conversation between Mr Thomas and Mr Arslanov as to whether they could take someone home. The applicant responded that they were not taking anyone home, because he had been ‘done for cheating before’, and he did not want to have a woman in the vehicle. After further discussion with Mr Thomas, he acceded to the female entering the vehicle, but he was a bit upset about the matter.
The woman entered the vehicle, while the applicant and Mr Thomas remained in their seats in the front of it. Mr Thomas then drove the vehicle, executing a U-turn. He had some conversation with the female, and the applicant said that it was a fluent conversation, and that the female did not sound intoxicated. The woman also spoke with the applicant. At one point, she asked if she could charge her telephone, and Mr Thomas gave her a cord with which to do so.
Just before the female asked to charge her telephone, she put her hands over the applicant’s shoulder and was feeling his chest. She rubbed his stomach, calling him ‘sexy’, and with her hands she felt over his body. The applicant had unbuttoned his shirt at the Crown Casino, and she was feeling his skin underneath it. The female then leant forward to kiss the applicant, and he pulled back, being shocked as to what was happening. She went to kiss him again, and he kissed her back. During that point in the incident, she was stroking his groin area on top of his trousers. She told the applicant ‘Come into the back seat and fuck me baby’. She said that a few times. In response, the applicant climbed into the back seat, through the centre console. When he did so, she unbuttoned his jeans and undid his zip. She went to pull his penis out and put it in her mouth, but the applicant said, ‘No’. She then kissed and straddled him, before stroking his penis against her vagina. He was unable to get erect. She attempted to insert his penis into her vagina, but it kept falling out. They repeated that one further time, but were unsuccessful, and the female told him that he was ‘fuckin’ useless’.
At about that point, the vehicle came to a stop in Harding Street, Coburg. The applicant told Mr Thomas and the woman that he was getting out to ‘take a piss and have a smoke’. He walked down the street to urinate and, as a police vehicle drove past, he moved over towards a fence, as he did not want to be observed by the police. After smoking one or two cigarettes, he then returned to the vehicle. While he was out of the car, he could not hear anything occurring. When he re-entered the vehicle, Mr Thomas and the female were talking. She was in the back seat, and Mr Thomas was in the front driver’s seat. They were having a normal conversation. They then proceeded to drive to Mernda. At one point, the woman asked to stop at McDonald’s in Mill Park, but the applicant said, ‘No’. The woman then provided directions to Mr Thomas to her home. At one point, she offered the men Valium, which they declined.
When they arrived at the woman’s home, she refused to get out of the vehicle, and she insisted that the men come inside and ‘fuck’ her. Mr Thomas and the applicant both refused that invitation. The applicant got out of the car and opened the rear passenger door. The woman got out, and dropped some of her personal belongings. The applicant picked them up and handed them to her. She then proceeded down the driveway. Mr Thomas reversed the vehicle to ensure that they could see her get inside the house safely. Mr Thomas drove to Doreen to drop the applicant at the house at which he was then living. Mr Thomas used the applicant’s telephone to make a couple of phone calls. Mr Thomas then drove the Wildtrak utility to his own home.
On the following day, the events of the previous evening were the subject of a media release. The applicant asked Mr Thomas if he had had sex with the woman, and Mr Thomas replied in the affirmative. At 6:30 pm that day, Mr Arslanov telephoned the applicant and said that he had heard from Mr Thomas that the applicant had had sex with the female. The applicant responded, ‘Yeah, we fucked her so what’. He denied that he said to Mr Arslanov, ‘Jarrod and me fucked the shit out of her, Jarrod and me were going off on her’. The applicant concluded his evidence-in-chief, stating that the complainant did not give any indication to him that she was intoxicated or extremely intoxicated during the period when she was ‘coming onto’ him.
In cross-examination, the applicant said that he only had a brief conversation with the complainant before she invited him into the back seat of the vehicle. He did not know her name, and he did not ask her why she was in the car and why she needed a lift. He said that it was ‘overwhelming’, ‘a shock’, getting asked to go into the back seat of the vehicle by a complete stranger, who had entered the vehicle about ten minutes previously. He said that when they pulled up in Lygon Street, it was Mr Thomas who had the conversation with Mr Arslanov. He did not turn his head around to have a look who might be entering the vehicle. He did not know where the complainant was going. He said that, initially, he told Mr Thomas that they were not going to give the girl a lift home, because he had been ‘done’ by his own girlfriend for cheating on her in the past. He said that when the complainant entered the vehicle, he did not move his seat, which was then in a reclined position, to make it upright. He also did not check to see whether the complainant could enter the vehicle while the seat was in a reclining position. The applicant did not ask the complainant why she was getting into the vehicle, or why she did not take a taxi or an Uber home instead. He said that she and Mr Thomas were talking ‘fluently’ together. However, he could not remember what they were saying. He said that although the complainant was having a fluent conversation with Mr Thomas, he did not join in, as he was simply ‘focused on going home’. He said that the only conversation that he could remember having with the complainant was a reference to her having a child.
The applicant said that when the complainant started touching and kissing him, he did not think to himself that that was very odd behaviour for a woman who had just come into his car. The applicant said that he was overwhelmed when he climbed onto the back seat and she started to touch him, but he just went with the ‘flow’. When the vehicle pulled into Harding Street, he did not ask Mr Thomas why he had pulled the car over. There was no discussion with Mr Thomas at that point as to why he was pulling the vehicle over. When he got out of the car, he said that he was going to ‘take a piss’ and have a smoke. He denied that subsequently, after the complainant left the vehicle, he telephoned Mr Arslanov and said that they had just dropped her home. He said that it was Mr Thomas who made that telephone call, using the applicant’s telephone. The applicant denied that he and Mr Thomas looked at the complainant’s driver’s licence in order to find out where she lived. He said that after they left Harding Street, the complainant gave Mr Thomas directions. He said that after they had dropped the complainant off at her home, Mr Thomas told him that he had had sex with the complainant. He said that he was in error in his evidence-in-chief, when he said that he only learnt of that matter after hearing the media release.
In conclusion, in cross-examination, the applicant denied that, when the complainant entered the Wildtrak utility, he was aware she was intoxicated or affected by drugs, and that he was aware that she was in such a condition throughout the journey from Carlton to Mernda. He denied that, when they pulled over in Harding Street, Mr Thomas and he agreed that they would both sexually penetrate the complainant.
In re-examination, the applicant denied that there was any agreement between himself and Mr Thomas to rape the complainant. He denied that he gave Mr Thomas any encouragement to rape her.

Submissions

Counsel for the applicant submitted that, for four reasons, the verdict of the jury, on charge 2, was unreasonable and could not be supported by the evidence.
First, counsel submitted that there was no evidence that was capable of satisfying the jury, beyond reasonable doubt, that the co-accused, Thomas, had sexual intercourse with the complainant in circumstances in which he knew that she was not consenting, or in circumstances in which he did not hold a reasonable belief that she was consenting. In support of that submission, counsel noted that, apart from the DNA evidence that demonstrated that Thomas had sexual intercourse with the complainant, the prosecution did not lead any evidence as to how, and in what circumstances, that intercourse took place. In that respect, counsel noted that the applicant gave evidence that he did not hear anything while he was out of the vehicle, and that, when he re-entered it, Thomas was in the driver’s seat and the complainant was in the back seat, and they were talking normally together.
Secondly, counsel submitted that, based on the evidence, it was not open for the jury to be satisfied, beyond reasonable doubt, that the complainant was so intoxicated by alcohol or drugs, or by a combination of them, as to be incapable of consenting to sexual intercourse with Thomas. Counsel noted that the prosecution relied on the evidence of the complainant’s memory of alcohol or substances consumed by her through the evening, and also on the observations of BE, HC, DM and MK and Erjan Arslanov, as to her level of intoxication. However, it was submitted, that evidence was directly contradicted by the observations of the witnesses, and it was also contradicted by evidence in cross-examination, given by the complainant, that when she was at the Retro nightclub, she felt tipsy, but she was not out of control. She said that on the next morning, she did not have a hangover, and that she felt that she had had a decent night’s sleep, although that had not occurred. Counsel also relied on the evidence of Professor Odell that the combination of the antidepressant medication, taken by the complainant, and her consumption of alcohol, had the potential to reduce her inhibitions. Counsel further submitted that the video footage that was presented to the jury, and tendered in evidence, apart from one instance, demonstrated that the complainant was able to walk unassisted, pay for drinks at the Retro nightclub, pay for a taxi, and walk from the Wildtrak utility to her home, unassisted.
In that respect, counsel further submitted that, despite the evidence of other witnesses as to the level of the complainant’s intoxication, the evidence of Professor Odell was such that the jury should have had doubts about the proposition that the applicant and Thomas knew, or ought to have known, that the complainant was not consenting to sexual intercourse with them.
Thirdly, counsel for the applicant submitted that the prosecution had failed to establish that Thomas had the requisite mens rea to establish the charge of rape. In particular, it was submitted that the prosecution did not prove, beyond reasonable doubt, that Thomas did not reasonably believe that the complainant consented to penetration.
Fourthly, counsel submitted, the prosecution failed to establish, beyond reasonable doubt, the existence of any agreement between the applicant and Thomas, to the effect that Thomas would rape the complainant, or that the applicant encouraged or assisted Thomas to commit that offence. In particular, counsel submitted that the effect of the directions given by the judge to the jury was that it was a necessary element of each basis on which the prosecution put its case against the applicant on charge 2 that the jury be satisfied beyond reasonable doubt that the applicant was present in the vehicle at the time which Thomas sexually penetrated the complainant. Counsel submitted that based on the evidence it was not reasonably open to the jury to be satisfied that the applicant was present in the vehicle at that time.
Further, counsel submitted that there was no evidence that he in any way encouraged or intentionally assisted Thomas to rape the complainant. Nor, it was submitted, was there any evidence of an agreement between the applicant and Thomas by which Thomas was to rape the complainant. Relevantly, the prosecution did not put to the applicant, in cross-examination, that he had entered into any agreement with Thomas to that effect.
In response, counsel for the respondent submitted that the absence of any memory of the complainant of the incident was not fatal to the prosecution case, which was put on the basis that the complainant was so intoxicated as to be unable to consent to penetration. In that respect, counsel noted that, at the trial, the prosecution relied on a number of factors that were indicative of the complainant’s impaired condition. In particular, counsel referred to the complainant’s lack of memory, the evidence of her consumption of drugs and alcohol on the night, together with observations by witnesses, and CCTV evidence, of her at the Retro nightclub and subsequently in Carlton, and the footage of her walking down the driveway at her home in Mernda, with her underpants around her ankles. In addition, counsel relied on a number of aspects of the behaviour of the complainant, including her decision to go with BE to Carlton for food at 4:30 am, the manner in which she separated from BE in Carlton, the fact that she lay on the cold pavement in Carlton, the fact that she subsequently entered the applicant’s vehicle, the fact that her telephone was charged while she was in the vehicle, the fact that penetration occurred without protection and while a tampon was in place, and the implausibility of the account, given by the applicant in his evidence, concerning the complainant’s conduct that immediately preceded the acts of intercourse. Counsel also relied on the evidence of TB and CS concerning their observations of the complainant after she arrived home in Mernda.

Counsel further submitted that, despite the evidence of Professor Odell, as to disinhibition that may have resulted with the complainant’s consumption of drugs and alcohol, the evidence of witnesses as to the complainant’s state immediately before she entered the taxi to depart the Retro nightclub was a sound basis for the jury to be satisfied, beyond reasonable doubt, that she was demonstrably incapable of consenting to an act of sexual intercourse. In particular, it was submitted that there was ample evidence for the jury to conclude that both the applicant and Thomas could not have reasonably believed that the complainant was consenting, or capable of consenting, to penetration. That evidence included: the CCTV footage of the complainant; the evidence of witnesses in Lygon Street; the circumstances of how the complainant ended up with two strangers in the applicant’s vehicle after being found lying on the footpath; the short period of time between the complainant entering the vehicle and it stopping at Harding Street; the lack of condom use; the location of the complainant’s tampon; the phone calls, by the applicant, from the vehicle, about having dropped the complainant home safely before he had done so; and the evidence of Erjan Arslanov that the applicant said, ‘We fucked the shit out of her’, and, ‘We were going off on her’.
Counsel further submitted that, based on that evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the complainant’s lack of capacity to consent would have been obvious to the applicant, so that any belief by him that she was consenting would have been unreasonable.
On the issue of the applicant’s complicity in the rape committed by Thomas, counsel for the respondent submitted that there was a sufficient body of evidence, based upon which it was open to the jury to be satisfied, beyond reasonable doubt, that the applicant had either agreed with Thomas that they would both rape the complainant, or that the applicant encouraged or assisted Thomas to rape her. That evidence included the following:
(a)the utterances of the applicant to Mr Arslanov that, ‘We fucked the shit out of her’ and, ‘We were going off on her’;
(b)the short period of time between the departure of the vehicle from Lygon Street and its arrival at Harding Street, which, it was submitted, evidenced a unity of agreement between the two men;
(c)the evidence, given by the applicant, that he was unsure why the vehicle stopped at Harding Street and remained there for twelve minutes;
(d)the evidence, by the applicant, that he only got out of the vehicle to urinate and have a cigarette, in circumstances in which the vehicle nevertheless remained in the same position for some twelve minutes;
(e)the evidence, by the applicant, that he did not know that Thomas had penetrated the complainant until the next day; and
(f)the telephone call, made by the applicant to Mr Arslanov and Jake Woolcock, in the presence of Thomas, that he had dropped the complainant home safely. That telephone call was relied on by the prosecution as incriminating conduct by the applicant.
Counsel for the respondent accepted that it was not open to the jury, on the evidence, to be satisfied beyond reasonable doubt that the applicant was present in the vehicle at the time at which Thomas sexually penetrated the complainant. Accordingly, counsel correctly accepted that, based on the directions that the judge gave to the jury, it was not open to the jury to convict the applicant on the basis that he had encouraged or assisted Thomas to rape the complainant. However counsel submitted that it was open to the jury to convict the applicant on the alternative basis relied on by the prosecution, namely, that Thomas raped the complainant pursuant to an agreement with the applicant.

Analysis and conclusion

The ground of appeal sought to be relied on by the applicant is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on charge 2. In such a case, the question for the Court is whether the jury, acting rationally, ought to have had a reasonable doubt as to the guilt of the applicant on the charge before it.[7] In determining that question, the Court is required to make its own independent assessment of the evidence. However, in undertaking that task, it is required to give full weight to the jury’s advantage in listening to and observing the witnesses, and to the principle that the jury was entrusted with the principal responsibility of determining the guilt or innocence of the applicant.[8]
[7]M v The Queen (1994) 181 CLR 487, 492–3; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); Pell v The Queen (2020) 268 CLR 123, 146–7 [42]–[45]; [2020] HCA 12 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
[8]The Queen v Baden-Clay (2016) 258 CLR 308, 329 [65]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ).
In M, Mason CJ, Deane, Dawson and Toohey JJ outlined the principles, relevant to an appeal from the verdict of a jury, in the following terms:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[9]
[9]M (1994) 181 CLR 487, 494.
In similar terms, in Pell, the High Court described the applicable principles as follows:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[10]
[10]Pell (2020) 268 CLR 123, 145 [39].
As we have noted, the prosecution case, on charge 2, was that the applicant was guilty of charge 2 on the basis that he had either intentionally assisted and encouraged Thomas to rape the complainant,[11] or that he had entered into an agreement, arrangement or understanding with Thomas to commit that offence.[12]
[11]Crimes Act 1958 s 323(1)(a), s 324(1).
[12]Crimes Act 1958 s 323(1)(c), s 324(1).
In order to prove the guilt of the applicant on charge 2 on the basis that he intentionally assisted or encouraged Thomas to rape the complainant, the prosecution was required to prove, beyond reasonable doubt, each of the following elements:
(1)Thomas raped the complainant. In order to prove this element, the prosecution was required to prove, beyond reasonable doubt:
(a)Thomas intentionally sexually penetrated the complainant — that aspect of the first element was not in issue in the trial, nor was it in issue in this application;
(b)the complainant did not consent to the sexual penetration. In respect of that part of the first element, the prosecution submitted that, pursuant to s 36(2)(e) of the Crimes Act, the jury should be satisfied, beyond reasonable doubt, that the complainant was so affected by alcohol or drugs, or both, as to be incapable of consenting to the act of sexual penetration of her; and
(c)Thomas did not reasonably believe that the complainant consented to the sexual penetration of her.[13]
(2)The applicant encouraged or assisted Thomas to commit the rape of the complainant. As the judge noted in his charge to the jury, the prosecution case, on this element, was that the applicant encouraged or assisted Thomas, by being present with Thomas, and by engaging in the exact same activity, either before or after Thomas raped the complainant.
(3)The applicant intentionally encouraged Thomas in the commission of the rape of the complainant. In order to establish that element, the prosecution was required to prove, beyond reasonable doubt, each of the following:
(a)the applicant knew or believed that Thomas was sexually penetrating the complainant;
(b)the applicant knew or believed that the complainant was so affected by alcohol or drugs, or both, that she was incapable of consenting; and
(c)the applicant knew that Thomas did not hold a reasonable belief that the complainant was consenting to the act of sexual penetration of her.[14]
[13]Crimes Act 1958 s 36(1).
[14]Giorgianni v The Queen (1985) 156 CLR 482, 485, 500, 503-5; R v Stokes & Difford (1990) 51 A Crim R 25, 38–41; R v Rohan(a pseudonym) [2024] HCA 3, [39].
In order to establish the second element, the prosecution was required to prove more than that the applicant was present at the time at which Thomas raped the complainant. In order to satisfy that element, the prosecution was required to establish that the applicant, at that time, did something to convey his support to Thomas, or to otherwise demonstrate that he was linked in purpose with Thomas in the rape of the complainant.[15]
[15]The Queen v Makin (2004) 8 VR 262, 267 [15] (Phillips JA), 275 [42] (Callaway JA); The Queen v Russell [1933] VLR 59, 67 (Cussen ACJ); The Queen v Lam (2008) 185 A Crim R 453, 478 (Buchanan, Vincent and Kellam JJA); The Queen v Al Qassim [2009] VSCA 192 [5] (Buchanan JA), [73]–[74] (Dodds-Streeton JA); LAL v The Queen [2011] VSCA 111, [43] (Buchanan JA).
As we have noted, the alternative basis upon which the prosecution relied, in respect of charge 2, was that the applicant was a party to an agreement, arrangement or understanding with Thomas to commit the offence of the rape of the complainant by Thomas.
In order to establish the guilt of the applicant on that basis, the prosecution was required to prove, beyond reasonable doubt, each of the following three elements:
(1)The applicant entered into an agreement with Thomas to rape the complainant, and that agreement remained in existence when Thomas sexually penetrated the complainant. In respect of this element, the prosecution was required to prove, beyond reasonable doubt, that the applicant agreed with Thomas to sexually penetrate the complainant, while the complainant was not consenting, and knowing or believing that she was not consenting. It was not necessary that the agreement or understanding be expressed between the parties. In an appropriate case, the agreement or understanding need not be expressed, and its existence may be inferred from all the circumstances.[16]
(2)Thomas committed the rape of the complainant. Again, to prove that element, the prosecution was required to prove, beyond reasonable doubt, that:
(a)Thomas intentionally sexually penetrated the complainant;
(b)the complainant did not consent to the sexual penetration — in this case, the complainant was so affected by alcohol or another drug as to be incapable of consenting to that act; and
(c)Thomas did not reasonably believe that the complainant consented to the sexual penetration of her.[17]
(3)When the applicant entered into the agreement with Thomas to commit the rape, he intended that Thomas would sexually penetrate the complainant while she was not consenting to that act; that is, he knew or believed that, due to her consumption of alcohol or drugs, the complainant was not capable of consenting to that act.[18]
[16]Tangye vThe Queen (1997) 92 A Crim R 545, 556 (Hunt ACJ); The Queen v Jensen and Ward [1980] VR 194, 198–199 (Young CJ, McInerney and Newton JJ); Guthridge v The Queen (2010) 27 VR 452, 461 [99] (Neave and Redlich JJA, Coghlan AJA).
[17]DPP v Gebregiorgis [2023] VSCA 166, [62] (Priest, Kaye JJA).
[18]Likiardopoulos v The Queen (2010) 30 VR 654, 669 [63] (Buchanan, Ashley and Tate JJA); Osland v The Queen (1998) 197 CLR 316, 344 (McHugh J); R v Rohan (a pseudonym) [2024] HCA 3 [34], [37] (Gageler CJ, Gordon and Edelman JJ).
The first three submissions by the applicant were directed to the question whether the jury could be satisfied, beyond reasonable doubt, that the complainant did not consent to sexual penetration by Thomas, and that Thomas did not reasonably believe that the complainant consented to the sexual penetration of her. The fourth submission was directed to the question whether the jury, acting rationally, could be satisfied, beyond reasonable doubt, that the applicant either intentionally encouraged or assisted Thomas in the commission of the rape of the complainant, or that he entered into an agreement with Thomas to rape the complainant.
The first three submissions can be dealt with together. In our view, there was a sufficient body of evidence, adduced by the prosecution, upon which it was open to the jury to be satisfied, beyond reasonable doubt, that the complainant was so intoxicated as to be incapable of giving her consent to sexual intercourse with Thomas, and that, in the circumstances, Thomas could not reasonably have believed that she was consenting to such intercourse.
The complainant herself gave evidence of the consumption, by her, of a significant quantity of alcohol, both at the Doutta Galla Hotel and the Retro nightclub. Her lack of any memory subsequent to leaving the nightclub, the CCTV footage of her walking in a very unsteady fashion down Lygon Street, and the evidence that subsequently she was found lying on the cold footpath of Lygon Street, provided a substantial basis for the prosecution to prove that she was manifestly intoxicated to the extent to which she could not reasonably be considered to be in a condition to consent to sexual intercourse.
The witnesses, who had been in the complainant’s company during the evening, gave evidence of varying degrees relating to her level of intoxication. It was a matter for the jury, as the judges of the facts of the case, as to whose evidence it preferred, and as to the extent to which it relied on the evidence of each of those witnesses.
In that regard, the evidence of DM gave quite powerful support to the prosecution case. She described the complainant as being intoxicated, and as being in a disorientated condition when she departed from the nightclub. HC said that she did not pay much attention to the complainant’s conduct, and she had a particularly limited recollection as to what happened later in the night at the nightclub. The evidence of BE supported the evidence of the complainant as to the quantity of alcohol consumed. In that respect, it is significant that BE, herself, did not have any recollection of leaving the nightclub, and her next recollection was waking up on Lygon Street, while being assisted by two police officers. Although MK did not make any observations as to the complainant being intoxicated, nevertheless, she did, in cross-examination, note that both she and BE were ‘drunk’. Finally, the evidence of Phool Riaz, the taxi driver, gave support to the proposition that at least one of the two females (BE and the complainant) was drunk, and could not walk properly.
The prosecution case, on the degree of intoxication of the complainant, and her evident state, was also supported by the evidence of Jake Woolcock, Erjan Arslanov and Nick Amuso, after they had noticed the complainant lying on the footpath in Lygon Street at about 4:00 am on the morning in question. The descriptions given by those witnesses as to the complainant being unsteady on her feet, and needing assistance to walk the short distance from where she had been lying to the Wildtrak utility, supported the prosecution case, not only on the degree to which the complainant was then affected by alcohol, but also as to the extent to which it was apparent, to those who attended upon her, that she was so inebriated. In that respect, Mr Arslanov, who assisted the complainant into the Wildtrak utility, gave evidence, which was of particular relevance in respect of those two issues. As we have noted, he described her as definitely drunk, and that she was ‘probably more than drunk’. It would be understandable if the jury had placed particular reliance on that evidence, given that it was Mr Arslanov who, himself, gave physical assistance to the complainant to enter the vehicle, and thus was well-placed to assess her level of intoxication.
Certainly, the evidence relating to the complainant’s condition, and as to how she appeared to others, did vary in degree. However, the evidence to which we have referred was a firm basis upon which it was well open to the jury to be satisfied, beyond reasonable doubt, first, that the complainant was so intoxicated that she was incapable of consenting to the act of sexual intercourse with Thomas, and, secondly, that Thomas did not reasonably believe that she consented to sexual penetration of her. Further, for the same reasons, it was well open to the jury to be satisfied, beyond reasonable doubt, that the applicant knew or believed that the complainant was so affected by alcohol or drugs that she was incapable of consenting to sexual penetration of her.
The critical issue, on this application, is whether it was reasonably open to the jury to be satisfied, beyond reasonable doubt, that the applicant intentionally encouraged or assisted Thomas to sexually penetrate the complainant, or that the applicant entered into an agreement with Thomas to rape the complainant.
Apart from the evidence of the applicant, there was no other direct evidence as to how, and in what circumstances, both the applicant and Thomas each sexually penetrated the complainant. The prosecution case was essentially circumstantial. In order that the jury be satisfied, beyond reasonable doubt, of the guilt of the applicant on that charge, it was necessary that his guilt should be the only rational inference that could be drawn from the evidence.[19] Accordingly, on this application, the central question is whether it was open to the jury to conclude that the only reasonable inference, from the evidence, was that the applicant intentionally encouraged Thomas to sexually penetrate the complainant, or, alternatively, that the applicant and Thomas were in agreement that Thomas should sexually penetrate her.
[19]Plomp v The Queen (1963) 110 CLR 234, 252; Coughlan v The Queen (2020) 267 CLR 654, 674–5 [55]–[56].
In determining that question, it is necessary to keep in mind the manner in which the prosecution put its case, and, in particular, the terms in which the judge instructed the jury, on the two bases of liability relied on by the prosecution on charge 2.
In that respect, it is evident that the prosecution case, at trial, was that, by being present in the vehicle at the time at which Thomas penetrated the complainant, the applicant thereby encouraged or assisted Thomas, or alternatively he thereby acted in support of an agreement with Thomas to rape the complainant in the vehicle. Consequently, and consistently with that approach by the prosecution, the judge instructed the jury that the applicant’s presence in the vehicle was a necessary aspect of the proof by the prosecution of charge 2.

At the conclusion of his cross-examination of the applicant, the prosecutor put a series of suggestions to the applicant which reflected the prosecution case. Relevantly, the prosecutor did not accept that the applicant had got out of the vehicle, and suggest to the applicant that he did so in order to assist or encourage Thomas to rape the complainant. Instead, the prosecutor specifically put to the applicant that he was present in the vehicle and that, by being present, he intended thereby to encourage or support Thomas to sexually penetrate the complainant.
In that respect, the prosecutor addressed the following questions to the applicant, each of which he responded to in the negative:
Yes, thank you, Your Honour. There’s really only a few more questions. (To witness) Mr Palise, I suggest to you that you and Mr Thomas penetrated [the complainant’s] vagina in the car when you were there together?
---No.
And you did that when you pulled over at Coburg?---No.
And you did it one after the other?---That’s not true.
And you meant to encourage Mr Thomas to do that?---Definitely not.
You meant to support him when he did that?---Definitely not.
Yes, Your Honour - and when you did that you were well aware of the condition that she was in?---No.
In similar terms, the prosecutor, at the commencement of his final address to the jury, submitted that it was absurd to postulate that, after the applicant had penetrated the complainant, he left the vehicle, and then later returned to it and discovered that Thomas had just ‘coincidentally’ had sex with her in the vehicle during the period in which he was outside it. He described that scenario as ‘fanciful or ridiculous’ and that it ‘should be rejected and rejected outright’.
Later in his address, the prosecutor returned to that theme, contending:
Now, remember [the complainant] was penetrated by both men. She was penetrated, as I say, by Jarrod Thomas at that point when the car was stopped in Coburg and, again, my submission to you is it’s a nonsense the accused simply said to the others, “Look, I’m leaving for a second”. Even though he’s focused on getting home he leaves for a second to go out there and have a couple of cigarettes and urinate and then, what, goes back in the car coincidentally after he says that Jarrod Thomas and the complainant have had sex? It really beggars belief, members of the jury, and in my submission, should be rejected.
At the conclusion of his address, the prosecutor submitted to the jury that the only reasonable scenario was that by the time that the Wildtrak utility pulled over in Harding Street, the applicant and Thomas had agreed they were both going to sexually penetrate the complainant, and that the applicant was aware that the complainant was vulnerable and incapable of giving her consent. The prosecutor, having submitted that there had been some communication of an understanding or agreement between the two men that they would sexually penetrate the complainant, then put to the jury:
It’s absurd, as I suggested to you earlier, that the accused simply left the car and came back and discovered, at some later stage, that Jarrod Thomas had just coincidentally had sex with the complainant in the car during the period when he was with – he was off outside.
The prosecutor further contended, in the alternative, that if the jury was not satisfied beyond reasonable doubt as to the existence of any such agreement, it should be satisfied that, after the vehicle had stopped in Harding Street, Thomas penetrated the complainant in the presence of the applicant, and with his encouragement and support. The prosecutor explained to the jury:
That doesn’t mean that there are words of encouragement “Come on” or, in that sense, but by his presence there, by pulling over, by giving his approval or his — implicit approval and the like by being there — the accused was supporting or encouraging Jarrod Thomas, in my submission, to sexually penetrate [the complainant] ...
The prosecutor reiterated his submission that the jury should reject the version of events, given by the applicant, that he was ‘off there having a smoke … and urinating in those moments when Jarrod Thomas was sexually penetrating [the complainant]’. He again described that version of events to the jury as ‘ridiculous’, and submitted that it ‘beggars belief’.
Consistently with the manner in which the prosecution so argued its case on charge 2, the judge, in directing the jury, noted that the prosecution had submitted that the applicant had intentionally assisted or encouraged Thomas to rape the complainant by being present in the car at the relevant time and, by his presence, providing the requisite encouragement or assistance to Thomas. Accordingly, the judge instructed the jury that if it could not exclude, as a reasonable possibility, that the applicant was out of the vehicle at the relevant time, then the jury could not be satisfied, beyond reasonable doubt, that, by his presence, the applicant had intentionally encouraged or assisted Thomas to rape the complainant.
Similarly, in instructing the jury on the alternative prosecution case, that the applicant and Thomas were parties to an agreement for Thomas to rape the complainant, the judge instructed the jury, as one element of that basis, that it must be satisfied that the applicant did something to assist in the commission of the rape by Thomas by being present in the vehicle. Specifically, the judge directed the jury in the following terms:
The second element that the prosecution must prove — that Harley Palise acted to support the agreement. So it’s not sufficient to have the agreement, Harley Palise must have acted to support the agreement. For this element, the prosecution must prove beyond reasonable doubt that Harley Palise did something to help the commission of rape. As I understand it in this case, you’re asked to draw the inference that he was present and by his presence he was — his unity of purpose with Jarrod Thomas, something you can accept and by his presence and his own actions, you can infer that he was doing something to support the agreement.
During the next break which the judge accorded to the jury, the prosecutor took issue with the directions given by the judge relating to the second element of liability based on agreement, namely, that the applicant did something to support the agreement. The prosecutor submitted that if the accused had penetrated the complainant and then left the vehicle, his conduct in having first penetrated the complainant would have been sufficient to support the agreement. In the discussion with counsel that followed, the judge considered that such a direction would be ‘very convoluted’ and complex. However, ultimately his Honour was persuaded to direct the jury that the requisite act in support in relation to the agreement could be the conduct of the applicant ‘joining in sexual activity’ either before or after Thomas had penetrated the complainant.
When the judge resumed his charge to the jury, he again reiterated the four elements which, he directed the jury, the prosecution must establish in order to prove the liability of the applicant on charge 2 on the basis that Thomas had raped the complainant with the agreement of the applicant. In respect of the second element — that the applicant had acted to support the agreement — the judge said the following:
If momentarily Mr Palise wasn’t present in the vehicle while Jarrod Thomas was engaging in sexual penetration of [the complainant], that wouldn’t matter so long as you were satisfied beyond reasonable doubt that there was an agreement to commit rape. That Harley Palise had done something to support that agreement. In this case it is alleged he engaged in sexual activity himself without the complainant’s consent knowing or believing that she was incapable of consenting.
On this application, an important issue concerned whether the judge’s further directions — that it did not matter if the applicant was ‘momentarily’ not present in the vehicle while Thomas engaged in sexual penetration of the complainant — effectively replaced the detailed direction he had earlier given to the jury, namely, that to prove the requisite act of the applicant in support of the agreement, it must be satisfied that the applicant was present at the time at which Thomas raped the complainant.
The further direction given to the jury was not, expressly, described by the judge as a correction or replacement of his earlier direction. Rather, it was given in the context of directions by the judge to the jury concerning the telephone conversation which the applicant had with Erjan Arslanov on the following day in which the applicant told Arslanov what he and Thomas had done to the complainant. In the context of the judge’s earlier directions, and in the context of the prosecutor’s cross-examination of the applicant, and his address to the jury, it could not fairly be concluded that the second set of directions given by the judge to the jury, concerning the requisite elements for liability by acting in agreement, replaced or materially altered the directions that his Honour had given to the jury concerning the second element of that form of criminal liability.
Accordingly, it is necessary to consider the ground of proposed appeal relied on, on the basis that the jury was instructed that in order to convict the applicant on charge 2, either on the basis that he encouraged or assisted Thomas to rape the complainant, or on the basis that Thomas did so with the agreement of the applicant, the jury was required to be satisfied beyond reasonable doubt that at the time at which Thomas raped the complainant, the applicant was himself present in the vehicle, or that, if he was absent from it, that was only ‘momentarily’ so.
As we have noted, on this application, counsel for the respondent conceded that, based on the evidence in the trial, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was present in the vehicle, in that sense, at the time at which Thomas raped the complainant.
That concession was, in our view, correct. There was an entire absence of evidence as to whether the applicant was himself present inside, or outside, the vehicle at the critical time at which Thomas penetrated the complainant. In those circumstances, it was not reasonably open to the jury to conclude, as the only reasonable inference in the circumstances of the case, that the applicant was indeed inside the vehicle at that time. It follows that, based on the manner in which the prosecution case was conducted, and

in which the judge directed the jury on charge 2, that the verdict of the jury on that charge was unreasonable and could not be supported having regard to the evidence.

It follows that the application for leave to appeal should be granted, the appeal allowed, and the conviction of the applicant on charge 2 be set aside, and in its place an order be made entering a judgment of acquittal for the applicant on that charge.
In the course of oral submissions, the court raised with counsel the appropriate disposition, in terms of the applicant’s sentence, in the event that the applicant should succeed in setting aside his conviction on charge 2, which has now occurred. It was common ground that in those circumstances the appropriate disposition, in terms of a non-parole period, should be achieved by applying to the new head sentence the same proportion which the non-parole period, set by the trial judge, bore to the total effective sentence imposed by his Honour. Based on that mathematical calculation, the non-parole period, set by the primary judge, should be also set aside, and in lieu a non-parole period of five years and four months’ imprisonment be fixed.
Accordingly, the Court will make the following orders:
(1)The applicant be granted an extension of time within which to file a notice of application for leave to appeal.
(2)The application for leave to appeal is granted, the applicant’s appeal allowed, and the applicant’s conviction on charge 2, and in its place an order be made entering a judgment of acquittal of the applicant on charge 2.
(3)The non-parole period of six years and three months’ imprisonment, fixed by the trial judge, be set aside, and in its place, a non-parole period of five years and four months’ imprisonment be fixed in respect of the sentence imposed by the trial judge in respect of the conviction of the applicant on charge 1.

BOYCE JA:

I have had the considerable advantage of reading in draft form the reasons of Priest and Kaye JJA.[20] Their Honours would set aside the applicant’s conviction on charge 2 and order an acquittal. I am unable to go quite that far. I would set aside the applicant’s conviction on charge 2 but order a re-trial. There are two steps in the reasoning process undertaken by Priest and Kaye JJA that, with the greatest respect, I am unable to adopt.
[20](the ‘majority reasons’).
The first step is their Honours’ conclusion that the Crown case at trial concerning the applicant’s complicity in Thomas’ rape of the complainant was confined, or limited, to the applicant ‘being present in the vehicle’.[21] The second step is their Honours’ conclusion that the second set of directions given by the trial judge concerning the

‘agreement’ limb of complicity[22] left that limb also confined to the applicant’s presence ‘in the vehicle’.[23]
[21]See the majority reasons at [118].
[22]Crimes Act 1958 s 323(1)(c), s 324(1).
[23]The majority reasons at [131]–[132].

I am indebted to the thoroughness of their Honours’ summary of the evidence, arguments and directions below.
The prosecution case of complicity made against the applicant was at least to establish that the applicant was ‘present’ when Thomas, the driver, had sexual intercourse with the complainant.[24]
[24]Albeit, as a matter of law, a person may be complicit even if not physically present at the relevant time: Crimes Act 1958, s 323(3)(a).
The majority reasons find however, in puttage by the prosecutor to the applicant, a refinement of the prosecution case of presence so as require that the applicant had been present actually inside the Wildtrak ute when Thomas was having sexual intercourse with the complainant.[25]
[25]The majority reasons at [119]–[120].
The version of events given by the applicant in evidence was that after the ute had turned into and stopped in Harding St Coburg, he left the vehicle and ‘walked down the street to take a piss… on the tree’. He said that he saw a police divisional van drive past. This caused the applicant to move towards a fence so that he could urinate on the fence rather than on the tree, and thus remain undetected by the police. It took a minute or two for the applicant to move to the point where he urinated and to complete the process of urinating. The applicant then had a cigarette, or perhaps even two cigarettes. He didn’t know precisely how far from the car he was. After his one, or perhaps two, cigarettes, the applicant walked back to the car to find Thomas and the complainant ‘obviously talking’. The applicant’s version was that when he returned to the ute, he was entirely unaware that, in his absence, Thomas and the complainant had engaged in sexual intercourse.
The tenor of the applicant’s version was that, by walking down the street, and away from the ute (in fact so far away that he was unable to comprehend what was occurring at the ute in his absence), he denied being relevantly ‘present’. Indeed, as the judge directed the jury in terms of the applicant’s case:
The defence… say that Harley Palise was in fact out of the car, unaware of what was taking place, and not even present on the occasion that Jarrod Thomas penetrated [the complainant].[26]
[26]Emphasis added.
The puttage by the prosecutor to the applicant was in the following terms:
Just by way of conclusion I suggest to you that when [the complainant] entered the Wildtrack ute on 17 June 2018 you were well aware that she was intoxicated or effected [sic] by drugs? — No, that’s not the case.
I suggest to you that you were aware of [the complainant] being in that condition throughout that journey from Carlton to Mernda? — No, that’s not the case.
And that included the stop in Coburg? — No that’s not the case.
And you were well aware that Jarrod Thomas also appreciated that the woman in your car was intoxicated or effected [sic] by drugs? — No.
Again, that continued throughout your journey? — No.
That was why you pulled over in Coburg I suggest? — No.
You and Jarrod Thomas agreed when you pulled over or when the car was pulled over, that you would both sexually penetrate [the complainant]? — No.
And you were well aware that she was incapable of giving her free agreement to what each of you did? — No.
You appreciated that Mr Thomas also understood that? — No.
This final question drew an objection from the applicant’s counsel. Once the objection was resolved, the cross-examination continued.
Mr Palise, I suggest to you that you and Mr Thomas penetrated [the complainant’s] vagina in the car when you were both there together? — No.[27]
And you did that when you pulled over at Coburg? — No.
And you did it one after the other? — That’s not true.
And you meant to encourage Mr Thomas to do that? — Definitely not.
You meant to support him when he did that? — Definitely not.
Yes,… and when you did that you were well aware of the condition she was in? — No.
[27]Emphasis added.
With the greatest respect to those who differ, I remain unpersuaded that by putting to the applicant that the applicant and Mr Thomas ‘penetrated [the complainant’s] vagina in the car when you were both there together’, the prosecutor must be taken to have limited his complicity case of presence against the applicant to the applicant’s actual presence in the ute. It seems to me that the prosecutor’s use of the word ‘there’, as it appears in the relevant piece of puttage, is equally, if not more likely, referable to the location in ‘Coburg’ at which the car was pulled over. It was, after all, the prosecution’s primary case that the applicant’s sexual intercourse had taken place at Harding St in Coburg and not on the way in the ute to that particular destination.
Certain it is, also, that in closing to the jury the prosecutor on numerous occasions encouraged the jury entirely to reject the applicant’s version of events concerning what he had said he did at Harding St. The majority reasons set out numerous such instances.[28] It is perhaps as well to set out another such instance taken from the prosecutor’s closing.
I suggest to you which is by far the most likely scenario, is that the acts of sexual penetration happened while the Wildtrack ute pulled over in Coburg.
I suggest that the scenario presented by the accused yesterday really defies credulity, that in Jarrod Thomas’ presence, only minutes after they left Carlton that they sexually penetrated [the complainant] in the moving car. And again, just minutes prior to that ute turning into Harding Street before Jarrod Thomas then penetrated [the complainant] in the absence of the accused unbeknownst to the accused while the accused was off urinating and having a cigarette or two outside. All of that, as I suggested to you earlier, is really a fanciful or ridiculous scenario, and my submission to you is that it ought to be rejected.[29]
[28]The majority reasons at [121]–[125].
[29]Emphasis added.
But yet, and again with great respect, I cannot see how by the prosecutor’s encouragement of the jury to reject the applicant’s version of what he said he did at Harding St — that is to say the applicant’s version of having absented himself by walking down the street away from the ute sufficiently distant as to remain entirely unaware of what was taking place at the ute in his absence — the prosecutor thereby tied the Crown case on the applicant’s complicity to the applicant’s actual presence inside the ute. Asking the jury to reject the applicant’s version of ‘absence’ did not, in my view, convert the prosecutor’s case of ‘presence’ to presence necessarily inside the vehicle.

Certainly the prosecutor didn’t think that he had acted so as to confine matters in this way, for when — as the majority reasons make clear[30] — the judge did so confine the prosecution case (on the ‘encouragement or assistance’ limb of complicity[31]), the prosecutor took exception at the first opportunity. As the prosecutor said:
Your Honour I [am] simply concerned that what Your Honour seems to be inviting the jury is that if at any stage the accused left the vehicle and was not present during the sexual penetration by Harley Palise then we must acquit. That seems to be what Your Honour’s inviting the jury to do essentially.
[30]The majority reasons at [128].
[31]Crimes Act 1958 s 323(1)(a), s 324(1).
Of course, it is apparent that it was this exception that led the judge to return to complicity later in his directions so as to direct the jury that, insofar as the ‘agreement’ limb of complicity was concerned:
If momentarily Mr Palise wasn’t present in the vehicle while Jarrod Thomas was engaging in sexual penetration of the complainant, that wouldn’t matter so long as you were satisfied beyond reasonable doubt that there was an agreement to commit rape.[32]
[32]The extract is more fully set out in the majority reasons at [129].
Their Honours, Priest and Kaye JJA, have determined that this direction ‘was not, expressly, described by the judge as a correction or replacement of his earlier direction’ and that:
[I]t could not fairly be concluded that the second set of directions given by the judge to the jury, concerning the requisite elements for liability by acting in agreement, replaced or materially altered the directions that his Honour had given to the jury concerning the second element of that form of criminal liability.[33]
[33]The majority reasons at [131].
Whether that is so is, of course, to be measured by what the judge had earlier had to say about the ‘agreement’ limb of complicity. Their Honours, Priest and Kaye JJA, helpfully set out precisely what the judge did say in this regard. It is found in the majority reasons at paragraph 127 above. As can be seen, in the extracted passage, the applicant’s liability on the ‘agreement’ limb is made referable merely to his ‘presence’, not his presence inside the Wildtrak ute as was the case in respect of the ‘encouragement or assistance’ limb. And if there was any doubt concerning how the jury might have understood the concept of ‘presence’ insofar the two bases of complicity were concerned (‘agreement’, on the one hand, and ‘assistance and encouragement’ on the other), it seems to me that so much was — at least to some extent — clarified by what the judge said to the jury almost immediately after the passage that is extracted by Priest and Kaye JJA at paragraph 129 above. The judge went on to tell the jury:
So that might clarify something I said a little earlier when I said if he’s not in the car at the relevant time, that’s the end of the matter pursuant to agreement. That’s certainly the case where assisting or encouraging is concerned. He has to be present. He has to intentionally assist or encourage by his presence.[34]
[34]Emphasis added.
Thus, it seems to me, that in the end, the jury were left, when it came to their assessment of the prosecution’s complicity case, to having to find that the applicant was present in the car when it came to the ‘encouragement and assistance’ limb, but that the applicant could be momentarily outside the car when the ‘agreement’ limb was to be considered. It is important to observe, also, that the judge directed the jury that they had to be unanimous as to which particular limb of complicity was chosen in order to convict the applicant.
The jury, as is clear, convicted the applicant of charge 2. That is to say, the jury were persuaded beyond reasonable doubt that the applicant was complicit in Thomas’ act of sexual penetration.
The respondent, in this Court, conceded that it was not open to be satisfied that the applicant was present in the vehicle at the time at which Thomas raped the complainant. That meant that any finding of guilt on charge 2 could not be sustained, given the manner in which the jury were directed, if the jury’s finding of guilt was based on the ‘encouragement or assistance’ limb of complicity. But, in response to a direct question from the bench,[35] the respondent made no such concession concerning the ‘agreement’ limb of complicity. As I understood the respondent’s submission, whilst the term ‘momentarily’ may not have been the best choice of words for description of the applicant’s ‘presence’ when it came to the ‘agreement’ limb of complicity, it was still sufficient to justify a finding of guilt under that limb.
[35]And as is noted in the majority reasons at [98].
Thus it was, at least according to the respondent, that the verdict of guilty could be sustained on charge 2.
In a case where this Court is asked to consider, by the terms of the applicant’s ground of appeal, whether the verdict of guilty on charge 2 was ‘unreasonable or could not be supported having regard to the evidence’, I consider that there is some force in the respondent’s position. The fact is that the jury did bring in a verdict on charge 2 in circumstances where I consider that it was open for them to do so given the manner in which they were directed on the ‘agreement’ limb of complicity. Indeed, I consider that it was likely that the jury did convict by reference to the ‘agreement’ limb given the nature of the prosecution case and, in particular, the strength of the assertion that the applicant and Thomas had agreed between themselves to turn into Harding St so that both of them could have sex with the thoroughly intoxicated, and thus heavily compromised, complainant. It seems legitimate to ask why the jury might unanimously have chosen an infirm form of complicity upon which to base their verdict when a legitimate, and what I consider to be a more likely, form of complicity presented itself?
Nevertheless, a difficulty is, however, that it cannot be known for certain upon what basis of complicity the jury chose to ground its verdict. It does seem to me that there is at least a perceptible risk that the jury might have convicted on the ‘encouragement or assistance’ limb of complicity — a basis that the respondent in this Court concedes would have led to an unsafe verdict.
A broadly similar issue arose in R v Galas; R v Mikhael.[36] In that case the Crown presented an accused on murder, albeit on two alternative bases — common law and statutory murder. The jury brought in a general verdict of guilt of ‘murder’. On appeal to this Court, it was argued that the verdict of guilty of murder was ‘unsafe and unsatisfactory’ because:
[N]o reasonable jury, properly instructed, could have been satisfied beyond reasonable doubt that the applicant was guilty of murder at common law, given that it was not open to them to exclude the possibility that the handgun discharged ‘accidently’ or without an intention to kill or cause really serious injury.[37]
[36](2007) 18 VR 205; [2007] VSCA 304 (‘R v Galas’).
[37]Ibid 208 [9].
This Court upheld the applicant’s submission and, despite determining that there had been at trial sufficient evidence of statutory murder to justify a conviction, set aside the applicant’s conviction of murder on the basis that ‘one or more of the members of the jury may have convicted on the basis of common law murder’.[38] A re-trial on statutory murder was ordered.
[38]Ibid 210 [16].
Even if one were to view this case, not through the lens purely of sufficiency of evidence, but rather as if the judge’s directions to the jury on the ‘encouragement and assistance’ limb of complicity were erroneous in setting too high a hurdle for the Crown to clear given the manner in the prosecution truly presented its case, then similar considerations as arose in R v Galas would, it seem, apply if it came to the potential application of the ‘proviso’.
As Brennan J observed, albeit in dissent in the result, in Domican v The Queen;[39] on the assumption that the trial judge in that particular case had misdirected the jury in respect of one category of evidence (identification evidence), in circumstances where there were at least two other separate categories of evidence sufficient to justify a verdict of guilty but it was impossible to determine the basis on which the jury founded their verdict:
The general principle is this: where, on the evidence and consistently with the directions of the trial judge, it is open to a jury to convict on any of two or more independent bases, a misdirection or an inadequate direction which would vitiate a conviction on one of those bases necessarily results in the setting aside of a guilty verdict despite the availability of another sound basis for conviction. That is because it is not possible to conclude that a guilty verdict has been founded on a sound basis when it was open to the jury to convict on a basis affected by the misdirection or inadequate direction.[40]
[39](1992) 173 CLR 555.
[40]Ibid 570 (Brennan J). See, also, Prasad v The Queen (1994) 68 ALJR 194.
Thus, from whichever angle this case is examined,[41] I consider that in line with the respondent’s concession (which, I agree, was properly made), the applicant’s conviction on charge 2 cannot stand. It cannot be known whether the jury based the finding of guilt on an unsound form of complicity which arose by dint of the manner in which the jury were directed.
[41]And assuming that the applicant would choose to amend his ground of appeal to one that asserted error if that were the better perspective from which to analyse the present case.
Yet, given my conclusions concerning how the Crown made its case for complicity at trial, as well as how the jury would have understood the judge’s directions concerning the ‘agreement’ basis of complicity, I do not consider that it is appropriate to acquit the applicant. To the contrary, and as occurred in R v Galas, I consider that there ought be an order for a new trial. Of course it will be, in the end, up to the respondent to consider whether the applicant is in fact re-tried.
It follows, as a result of my conclusions on conviction, that the applicant ought be re-sentenced. In that regard I agree with the orders proposed by Priest and Kaye JJA.

---

Charge	Offence	Maximum	Sentence	Cumulation
1	Rape	25 years	8 years 6 months	Base
2	Rape	25 years	8 years	1 year 6 months
Total Effective Sentence:		10 years’ imprisonment
Non-Parole Period:		6 years and 3 months’ imprisonment
Pre-sentence Detention		874 days
Other orders		Forfeiture order

[2024] VSCA 51

28 March 2024