Parker (a pseudonym) v The Queen
[2021] VSCA 348
•13 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0237
| CHARLES PARKER (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2021 |
| DATE OF JUDGMENT: | 13 December 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 348 |
| JUDGMENT APPEALED FROM: | [2020] VCC 583 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Election under Criminal Procedure Act s 315(2) – Jury directions – Whether judge inadequately directed or misdirected jury as to unreliability of complainant’s evidence due to intoxication – Whether judge enlarged the prosecution case in charge to the jury – Whether prosecution conducted case on basis that complainant was unable to consent – Prosecution reference to incapacity to consent in oral opening sufficient with other indirect references to show prosecution case was put on that basis – That complainant actively refused consent and was incapable of consenting not mutually exclusive bases for second element of rape – Crimes Act 1958 ss 36, 38, Jury Directions Act 2015 ss 12, 32, 46, 47; King v The Queen (1986) 161 CLR 423, RR v The Queen [2013] VSCA 147, Arafan v The Queen (2010) 31 VR 82, R v GAS [1998] 3 VR 862, Johnson v Miller (1937) 59 CLR 467 considered – Extension of time in which to file notice of application to seek leave to appeal granted – Leave to appeal against conviction granted – Appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Slades & Parsons Solicitors |
| For the Respondent | Mr B L Sonnet | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Having had the considerable advantage of reading in draft the reasons for judgment of T Forrest JA and Macaulay AJA, for the reasons they give, I agree that ground 1 cannot be upheld.
By virtue of s 36(2)(e) of the Crimes Act 1958, a circumstance in which a person does not consent to an act of sexual penetration for the purposes of a charge of rape is if ‘the person is so affected by alcohol or another drug as to be incapable of consenting to the act’.
In a trial for rape (or other sexual offence), if reliance is sought to be placed on s 36(2)(e) as a basis for conviction, axiomatically it is incumbent upon the prosecution in unequivocal terms to disclose that reliance from the outset. A person accused of rape (or other sexual offence) is entitled to know before a trial begins the manner in which the prosecution will put its case against him or her — including whether it is alleged that a complainant was unable consent to by reason of intoxication — and the acts, facts, matters and circumstances being relied on to support a finding of guilt.
Plainly, there was no direct mention of the complainant’s incapacity to consent, or of s 36(2)(e), in the summary of prosecution opening contemplated by s 182(2) of the Criminal Procedure Act 2009. At the very least, that is highly unsatisfactory in circumstances in which the prosecution later sought to advance its case on that basis.
Moreover, the reference to the subject in the prosecutor’s oral opening to the jury was, at best, opaque. I disagree that, in the laconic passage of the prosecutor’s opening set out in the joint reasons, there was a ‘plain and unequivocal reference to the s 36(2)(e) deeming provision’.[1] If the prosecution sought to rely on the complainant’s inability to consent by reason of intoxication, it was necessary to disclose that reliance with clarity from the beginning. Ultimately, however, I would not uphold ground 4.
[1]See [66]–[67] below.
On a fair reading of the exchanges between judge and counsel — albeit that the relevant passages may appear to be obscure to a reader not familiar with the ‘shorthand’ that was used — it must have been plain to defence counsel imbued with the atmosphere of the trial that the prosecutor had asked for, and the judge was minded to give, a direction in conformity with s 36(2)(e), yet he took no exception to that course. Thus, if there was any expansion in the manner in which the prosecution case was put, that occurred with the acquiescence of defence counsel. Presumably, had he perceived any potential for unfairness to his client from the adoption of the purported enlargement of the prosecution case, counsel would have taken steps to mitigate it. He did not do so. In those circumstances, I am unable to conclude that justice has miscarried.
For these reasons, I agree with the orders proposed by the other members of the Court.
T FORREST JA
MACAULAY AJA:
The applicant Charles Parker[2] pleaded not guilty in the County Court to five charges of rape. After a trial before a jury lasting eight days, he was convicted of four of the charges (charges 1, 2, 3 and 5) and, on 8 May 2020, the applicant was sentenced as follows:
[2]In order to conceal the identity of the complainant, a pseudonym has been used in place of the applicant’s name.
Charge Offence Maximum penalty Sentence Cumulation 1 Rape 25 years’ imprisonment 5 years 1 year 2 Rape 25 years’ imprisonment 5 years 1 year 3 Rape 25 years’ imprisonment 5 years 1 year 5 Rape 25 years’ imprisonment 5 years Base Total effective sentence: 8 years’ imprisonment Non-parole period: 5 years and 3 months Pre-sentence detention declaration pursuant to Sentencing Act 1991 s 18(1): 148 days Other relevant orders: Sentenced as a serious sexual offender on charges 3 and 5; Disposal order
The applicant subsequently sought leave to appeal his convictions. That application was made out of time, and, on 21 May 2021, the application for an extension of time was refused by a judge of this Court on the basis that the three grounds of appeal advanced were not reasonably arguable.[3] Those grounds were as follows:
Ground 1:There has been a substantial miscarriage of justice arising from the trial judge’s directions about unreliability.
Ground 2:There has been a substantial miscarriage of justice arising from the trial judge’s directions about prior inconsistent statements.
Ground 3:There has been a substantial miscarriage of justice arising from the trial judge’s directions about the third element of rape.
[3]Parker (a pseudonym) v The Queen [2021] VSCA 139 (Kyrou JA) (‘Leave Reasons’).
The applicant now elects under s 315(2) of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’) to have his application determined by a panel of two or more judges. Prior to the hearing of this application the applicant abandoned grounds 2 and 3 and sought leave to add ground 4, expressed as follows:
The learned trial judge erred in enlarging the Crown case, contrary to the principle in King v The Queen (1986) 161 CLR 423.
Leave was given during the oral hearing to add the proposed ground 4. For the reasons that follow, we have determined that, on the basis of the added ground, the extension of time in which to make an application for leave to appeal should be granted and the application for leave should be granted, however, the appeal should be refused.
Factual background
The prosecution case
We have borrowed heavily from Kyrou JA’s comprehensive summary of the prosecution case at trial, which, as stated by his Honour, was largely based on the evidence of the complainant, ‘K’,[4] and her friend, ‘M’.[5]
[4]A pseudonym.
[5]A pseudonym.
The applicant, who was 41 years of age at the time of the alleged offending, rented the second bedroom of his Elizabeth Street apartment on Airbnb. K and M, who were both aged 19 and visiting Melbourne from interstate, booked a four-day stay, arriving on Friday 24 November 2017.
On the first night of their stay, K and M socialised at the apartment with the applicant and a friend of the applicant’s, with a friend of K and M joining them at around 10:30 pm. The five drank some alcohol that K and M had purchased during the day, before K, M and their friend went out at 11:30 pm. The applicant told K to wake him when they returned. K and M did not do so when they returned to the apartment at around 4:00 am.
On the following night, Saturday 25 November, K and M again socialised and drank at the apartment with the applicant and a different friend of his. At some stage, K became ill due to excess alcohol consumption and went to lie on the bed she was sharing with M. At one stage she vomited into a bucket that the applicant had provided.
After K had gone into the bedroom, the applicant, his friend and M left the apartment for a bar. They did not stay long, the applicant’s friend leaving first, and the applicant and M returning to the apartment a short time after that, at around 11:00 pm. During their absence, K had vomited again, this time on the bed, and had passed out on the bed. M took a photograph of her in this condition at 11:07 pm, and then she and the applicant moved K to the couch in the living room while the bedding was changed. K vomited again while on the couch and a short time afterwards M went to bed and fell asleep. The applicant sat on the couch near K.
K’s next memory is of being in the bathroom on her knees with her head over the toilet bowl. She did not know how she had come to be there as she last recalled being in the kitchen. She did not recall going to bed, vomiting in the bed or in the bucket the applicant had provided, being moved by the applicant and M from the bed to the couch, or vomiting on the couch. The applicant was with her in the bathroom and was telling her to ‘be sick’ and to put her fingers down her throat.
K told the applicant she did not want to throw up again and wanted to go to bed. The applicant repeatedly asked her if she wanted to sleep in his bed, and she repeatedly told him that she wanted to go to her bed. The applicant said, ‘I’ll take you to my bed’, picked her up by the waist, carried her into his bedroom and put her in his bed. K felt weak and disorientated. She saw the accused leave the bedroom and then fell asleep.
K was unsure how long she had been asleep when she felt the applicant climbing over her to get into the bed and lie next to her. K was lying on her side with her back to the applicant. He tried to get her to lie on her back. K said ‘no’ and told the applicant that she felt sick.
The applicant removed K’s underwear. She repeatedly told him ‘no’, to leave her alone and not touch her. The applicant then began to lick her vagina. While this was happening K continued to say ‘no’ repeatedly. The applicant penetrated her vagina with his fingers (charge 1) and then with his penis (charge 2). K tried to push him away from her but lacked the strength. The applicant then began licking K’s vagina again and inserting his fingers into her vagina (charge 3).
The applicant climbed on top of K, placing his knees on her shoulders so that his penis was in her face. He asked her to suck his penis, which K refused to do. The applicant then penetrated her vagina with his penis again (charge 5).
K managed to lift her right leg and use it to push the applicant off her. She grabbed her underwear, ran out of the bedroom and into the other bedroom where M was sleeping. She roused M and told her that the applicant had raped her.
M then called the complainant’s mother and 000 while the complainant contacted her brother, before both left the apartment to wait for the police. Police arrived shortly after 2:00 am — first uniformed police members, Constable Daniel Vandenbroek, Senior Constable Simon Baker, to whom K made the initial complaint that she had been raped, followed shortly thereafter by Acting Sergeant Lazzo and Senior Constable Gilham. At 2:23 am members of the Sexual Offences and Child Abuse Investigation Team, Senior Constable Shaun Nichols and Detective Adrian Varley arrived, to whom K made a formal complaint. K complained to police of pain in her vagina and anus.
The complainant was conveyed by ambulance to Royal Women’s Hospital where she was examined by forensic medical officer Dr Vicky Kim. This examination disclosed a 5x10-millimetre abrasion to the complainant’s upper vaginal vestibule, a 10x10-millimetre abrasion to her fossa navicularis and a two-millimetre laceration to her posterior fourchette. Dr Kim gave evidence that each of these injuries was consistent with blunt trauma, and also that genital injuries may occur during consensual or non-consensual sex, though visible signs of injuries are not common in either case.
Blood and urine samples were taken from the complainant at approximately 9:30 am on 26 November 2017. Evidence was given by Dr Dhirendranath Gaya, forensic physician, who later examined those samples, that at the time of the offending[6] her blood alcohol level would have been between 0.122 and
0.237 per cent.
[6]That is, between midnight and 2:00 that morning.
Police attended at the applicant’s apartment at about 3:15 am on 26 November 2017. A search was conducted during which the complainant’s underwear was located on the floor of the second bedroom. The washing machine was observed to be mid-cycle and containing bed linen. The applicant stated that he had had sex with the complainant but that he believed it to be consensual. The applicant was arrested and taken to Melbourne Police Station where, at 8:17 am, he was interviewed.
Defence case
The applicant’s case at trial was that the sexual activities between him and the complainant were consensual. In an extensive record of interview the applicant stated that K had volunteered to accompany him to his bed and that she was the one who had initiated the contact that led to sexual intercourse. He stated that he had asked K if she was comfortable with the sexual contact and that she had answered ‘yes’. He stated that she had subsequently asked him to stop and that he had done so immediately.
The applicant also pointed to a series of prior inconsistent statements said to have been made by the complainant on the night of the alleged rapes and later changed at trial. These inconsistencies were said to include:
(a) In her statement to police K said that she woke M up and told her that she had been raped. At trial, K’s evidence was that she woke M, M asked her ‘what was going on’ and she then told M she had been raped.
(b) K told a police officer on the night of the alleged rapes that the applicant had helped her when she was in the bathroom. At trial, her evidence was that she could not remember saying that.
(c) K told a police officer on the night of the alleged rapes that the applicant had penetrated her anus and did not mention him penetrating her vagina. Later that night she told police that he had penetrated her both anally and vaginally.
(d) K said at the committal hearing that she did not know if she had said to the applicant on the evening before the alleged rapes, ‘I’ll bust down your door and have my way with you’ or words to that effect. At trial she positively asserted that she did not say that.
At trial the applicant sought and received an ‘unreliable witness’ direction[7] concerning the intoxication of the complainant and her friend M.
This appeal
[7]See Jury Directions Act 2015 s 32 (‘JDA’).
Ground 1
Ground 1 impugns those directions on unreliability, contending that the unreliability direction concerning the complainant’s intoxication was incomplete and constituted a misdirection. The judge directed the jury on this issue as follows:
[I]t is the experience of the law that the evidence of a witness who was drug-affected at the time of the events, and alcohol is such a drug, may be unreliable, because of the effect that alcohol has on a user’s perceptions and recollections.
The law says, members of the jury, that every jury, and in this case you must take the potential for unreliability into account when you are considering and assessing the evidence of the witnesses, and in particular, of course, the evidence of the complainant in this case. Therefore, the direction about this is, you must take into account in determining whether you accept her evidence, and the evidence of others who were affected by alcohol, whether you accept it in whole or in part, and in deciding what weight to give to that evidence. It is a matter that you must take into account.
In considering whether it is safe to rely on evidence, or the evidence of any witness who may have been affected by alcohol, you should have regard to any supporting evidence, in particular supporting evidence that you accept.
Supporting evidence, by that I mean evidence from a source that is independent of the witness that you are examining. So another source that is independent of that witness, and that tends to show the truth of the witness’ evidence, and tends to show the truth of the witness’ evidence of the accused’s guilt. However, you may only accept their evidence as supporting each other if you accept that their accounts are truly independent of each other.
So you should also consider whether there was any opportunity, or whether in fact there was any putting together of their heads, or fabrication of any evidence in this case, such as you might call collusion.
Now, you will remember that there was cross-examination and some commentary and argument about whether the witnesses at some point were separated, at what point, or kept together; what opportunities there were before the two girls left the apartment. Those are the sort of issues that you should look at, to see whether they throw any light on that issue or not. That is a matter for you.
Make a judgment about that. Make a judgment about whether supporting evidence is truly independent, and then consider, as you must, the issue of any possible unreliability related to their consumption of alcohol, in particular the complainant.
In this case you have heard a suggestion of different accounts by the complainant in relation to the offence, specifically about that. And for this purpose, when I say ‘difference’, I mean either inconsistencies or gaps in the complainant’s account.
The law says that you may use differences in a complainant’s account when you are assessing her credibility and reliability. But members of the jury, the experience of the law is also that you should bear in mind that experience shows that people may not remember all the details of a sexual offence, or may not describe a sexual offence in the same way each time that they recount that offence.
Trauma affects different people differently, including affecting how they recall events. It is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence as having occurred differently, at different times to different people, and in different contexts. And both truthful and untruthful accounts of a sexual offence may contain differences.
It is up to you, members of the jury, to decide whether or not the differences in the complainant’s account are important when assessing her credibility and reliability. It is up to you to decide whether you believe all, some, none of their evidence. Ultimately the question you must decide is whether the prosecution case has persuaded you beyond reasonable doubt that the accused committed rape.
In this application the applicant contended that this direction was incomplete because:
(e) The jury ought to have been reminded that the complainant’s complaint evidence was not independent.
(f) The jury ought to have been directed that both K and M made a series of prior inconsistent statements that went to the issue of reliability.
(g) The jury ought to have been directed to consider the possibility of evidentiary contamination between K and M as a consequence of conversations between them after the alleged offending.
(h) The jury ought to have been directed to consider evidence of alcohol-related gaps in the complainant’s memory when considering the reliability of her evidence. The gaps identified by the applicant related to the complainant failing to remember:
(i) being on the bed she shared with M;
(ii) having a bucket placed beside her;
(iii) being carried to the couch;
(iv) vomiting on the couch; and
(v) M going to bed.
The applicant also contended that the direction, which largely related to K, ought to have extended to M as well.
The respondent argued that the principal reason for directing the jury about a witness’s potential unreliability was that the jury might not be alert, or sufficiently alert, to the potential unreliability of that evidence. The call for an unreliability direction would be greater when the cause of that potential unreliability was hidden or beyond normal human experience. In this case, the effects of intoxication were largely well-known and the jury, in any event, were assisted by the expert evidence of Dr Gaya. The respondent further contended that the jury were properly directed on the issue of independent support, and that the jury were also properly, if separately, directed on complaint evidence. It would be obvious to the jury that complaint evidence, whilst demonstrating consistency of account, could not be said to be evidence independent of the complainant. The unreliability direction, it is submitted, focussed on K, but was not limited to her. It extended to ‘others who were affected by alcohol’.[8]
[8]See above [29].
Consideration — ground 1
We agree with Kyrou JA’s conclusion that ground 1 is not reasonably arguable, and do so essentially for the same reasons. We consider that, overall, the judge’s charge conveyed adequately to the jury the manner in which they could appropriately consider the intoxication of K and M in determining the reliability of their evidence.
It is clear that the impugned direction, whilst noting the evidence of the complainant, ‘in particular’ extended to the ‘evidence of any witness who may have been affected by alcohol’. Further, the judge clarified his reference to supporting evidence by defining it as ‘evidence from a source that is independent of the witness that you are examining’. The jury were also warned twice during the charge that they must only accept evidence as supporting evidence if it was truly independent. The judge made it plain that evidence of complaint was not evidence that was independent of the complainant. Similar directions were given about independent support when considering hearsay evidence.
At different parts of his charge, the judge referred to ‘inconsistencies’, ‘gaps’ and ‘differences’ in K’s account, and to the fact that K and M had previously given different versions of various events. We agree with Kyrou JA that ‘the jury could not have been in any doubt that these matters could be taken into account in assessing the reliability of the evidence of K and M’.[9]
[9]Leave Reasons [52].
We also agree with Kyrou JA that the judge made it clear to the jury that they could consider potential fabrication, collusion and ‘putting together of heads’ when considering the reliability of the evidence of each witness. In our view the jury would have taken into account K’s admitted memory loss and how this may have impacted upon her reliability. Whilst the trial judge did not mention memory loss specifically in his unreliability direction, as Kyrou JA said, ‘the fact that memory loss can affect the reliability of a witness’s evidence is a matter of simple common sense. The jury would have been aware of this through their own life experience.’
We consider there to be good reason why experienced defence counsel, who was certainly proactive in taking objections and exceptions throughout the trial, took no objection to this part of the judge’s charge — it was unexceptionable. Leave to appeal under this ground must be refused.
Ground 4
This ground contends that the trial judge, in his charge to the jury, erred by enlarging the prosecution case insofar as the second and third elements of the offence were concerned. This was said to be contrary to the principle in King v The Queen.[10]
[10](1986) 161 CLR 423 (‘King’).
The elements of the offence of rape are as follows:
(i) The accused intentionally sexually penetrated the complainant.
(j) The complainant did not consent to the sexual penetration.
(k) The accused did not reasonably believe that the complainant consented to the sexual penetration.[11]
[11]Crimes Act 1958 s 38(1) (‘Crimes Act’).
Consent means free agreement. Relevantly, s 36 of the Crimes Act provides as follows:
(1)For the purposes of Subdivisions (8A) to (8E), consent means free agreement.
(2)Circumstances in which a person does not consent to an act include, but are not limited to, the following—
…
(e)the person is so affected by alcohol or another drug as to be incapable of consenting to the act …
In his charge, the judge said the following in regard to the second element of the offence:
The law says that a person can consent to an act only if they are capable of consenting, and free to choose whether or not to engage in or allow the act to happen. The concept of consent in our law is very much based on a communication model. I explain that further as I go along.
In some circumstances, the law says that the complainant did not freely agree or consent to sexual penetration as an absolute. In some circumstances. This is contained in our Crimes Act, in a specific section.
After citing some examples supplied by s 36 of the Crimes Act of situations where a person is deemed not to consent, his Honour then said,
Do you see, that is the list that the law provides in all of those circumstances? And there are more. And the one that pertains here is this: the person is so affected by alcohol or another drug as to be incapable of consenting to the act.
In relation to the third element of the offence, the judge said,
It is important that you understand that if you find that the accused knew or believed that the complainant was so affected by alcohol as to be incapable of consenting to the act, that is enough to show that he did not reasonably believe she was consenting.
In this application, the applicant contended that
[t]he prosecution did not at any stage submit to the jury, explicitly or implicitly, that the complainant was so intoxicated as to be incapable of consenting to sexual penetration.
Nor did the learned prosecutor request that [h]is Honour direct the jury in terms of s 36(2)(e) of the Crimes Act 1958, as would have been required by s 12 of the Jury Directions Act 2015 had this matter been in issue.
The applicant further contended that throughout the trial the prosecution case was put on the basis that the complainant did not consent to the act of penetration but, rather, had verbally and physically resisted. The applicant also contended that, while there was evidence that the complainant had been affected by alcohol earlier in the evening, it was never the prosecution case (and never the case to be answered by the applicant) that the complainant was so affected by alcohol as to be incapable of consenting to the penetrations alleged. Thus the issue of consent was never put on a s 36(2)(e) basis by the prosecution at trial. Despite this, so the argument went, the judge unilaterally determined to give the jury a s 36(2)(e) direction, and in doing so impermissibly widened the prosecution case in relation to both element two and element three, contrary to statute and established principle.[12]
[12]
The applicant submitted that despite defence counsel’s failure to take exception to ‘his Honour’s enlargement of the Crown case’, ‘the matter was so fundamental that it has resulted in a miscarriage of justice’, requiring that the convictions be set aside and a retrial ordered.
During the hearing of the appeal the Court did not have access to a transcript of the prosecution opening address, which surprisingly had not been transcribed. Counsel constructed their submissions on the basis of the summary of prosecution opening filed pre-trial, the trial transcripts of evidence, the final addresses and the judge’s charge. Given the thrust of ground 4, which asserts an impermissible widening of the prosecution case by the trial judge, it was thought prudent to commission the transcription of the prosecution opening address, and, if relevantly different to the summary of prosecution opening, that it be provided to the parties.
At trial the prosecutor opened by outlining the evidence upon which it would rely. The opening address then continued:
So that’s really the case/evidence we anticipate will be given in the trial before you over the course of the next five to seven days.
The prosecution obviously, through laying the charges, say that Mr [Parker] committed rape on 26 November 2017 when the complainant was not consenting, or able to consent, to any of the sexual penetrations by Mr [Parker], but it’s us, the prosecution, that (sic) have brought the charges. It’s not us, the prosecution, who make findings of fact. It’s for me to lead the evidence that will enable you to use your common sense and retire to deliberate amongst yourselves and arrive at a unanimous verdict. So listen closely to the evidence from the witnesses; not the questions that are asked, the evidence.[13]
[13]Emphasis added.
It is not disputed that the written summary of prosecution opening did not contain the words ‘or able to consent’.
Once the transcript of the prosecution opening was received, the parties filed further submissions at the Court’s invitation. Counsel for the applicant stated that her submissions in respect of ground 4 remained unchanged:
The learned prosecutor was simply acknowledging the obvious: that by bringing the charges the prosecution asserted that the applicant was guilty of the offences charged. In order for an accused to be guilty of the charge of rape, inter alia, the complainant must either not be consenting or not be able to consent.
Further, the applicant contended that at no stage in opening, or throughout the trial, did the prosecutor contend that the complainant was so affected by alcohol as to be incapable of consenting. Counsel for the applicant asserted, correctly, that in the written summary of prosecution opening no assertion was made to this effect. It followed, so the argument went, that, had the prosecutor intended to deviate from her written opening, she would have been required to seek leave to do so under s 224(2) of the Criminal Procedure Act. The fact that she did not seek such leave was said to be evidence that the prosecution was never put on a s 36(2)(e) basis of incapacity.
Alternatively, the applicant submitted that, even if the prosecutor were ‘keeping her options open’ at the time of her opening address, she made a forensic decision not to pursue a path to conviction based on alcohol-induced incapacity. This was said to be apparent from:
(l) her failure to seek a direction on alcohol-induced incapacity;[14] and
(m) her failure to address the jury on alcohol-induced incapacity and its impact on consent.
[14]See Crimes Act s 36(2)(e); JDA s 12.
The respondent contended that the summary of prosecution opening was replete with references to the complainant’s intoxication, although it was conceded that it made no reference to s 36(2)(e) or its deeming effect. The respondent then referred to the passage of the prosecutor’s opening address recited above at [47]. Counsel submitted that this is a ‘plain and unequivocal reference to the s 36(2)(e) deeming provision’. He further submitted that ‘[i]f this contention is accepted, the argument that the trial judge “enlarged” the prosecution case is simply unsustainable.’
In answer to the new criticism made by the applicant that the prosecutor, contrary to s 224(2) of the Criminal Procedure Act, departed from the written summary of prosecution opening, the respondent contended that the opening address was ‘in harmony with the Opening written document’, and that at no stage did the proactive and ‘very experienced defence counsel complain of [such] a departure in the prosecution case’.
The respondent further submitted that the prosecutor, by implication if not directly, did indicate that she was relying on the s 36(2)(e) provision. This contention must be considered against the backdrop of the whole discussion between the trial judge and counsel.
As to the applicant’s alternative contention that the prosecutor disavowed reliance on s 36(2)(e), having made a forensic decision not to pursue a path to conviction on that basis, the respondent submitted that the prosecutor’s conduct throughout the trial demonstrated that she had not disavowed reliance on s 36(2)(e) at all, as least as a fallback or supplementary position. In his oral submissions, counsel for the respondent emphasised that, while the prosecution’s primary case was that the penetrative acts were carried out despite the complainant’s verbal and physical resistance, the prosecution case was always that s 36(2)(e) (that the complainant was incapable of consent due to intoxication) was an alternative pathway to conviction.
Legal principles
The general principle concerning a change in direction of the case presented at trial by the Crown was summarised by Deane J in a minority judgment in the High Court case of King:
But once the Crown elected at trial to confine its case against the applicant with the result that the trial was conducted on that basis, it could not legitimately expect that it could, after evidence and addresses had been completed, seek, through the trial judge’s summing up, to obtain a conviction on some other basis if it became apprehensive that the case which it had presented might be rejected by the jury.[15]
[15]King (1986) 161 CLR 423, 429.
Although the above passage appears in a minority judgment it conveniently states the principle as to a late change in the Crown case applied in King, on which the whole Court agreed.[16]
[16]Deane J was in the minority on the question of the effect of such an impermissible change in the Crown case, that is, whether the a retrial or an acquittal should be ordered.
Some examples of the application of this principle are set out below.
In GAS, the accused, who had been indicted for murder, had conducted his defence on the basis that he had not stabbed the deceased, as alleged by the Crown, but was merely present when another man (who had pleaded guilty to manslaughter on a complicity basis) in fact carried out the fatal attack. At a very late stage of the trial, the jury asked a question of the judge which carried with it the possibility that both offenders may have stabbed the deceased. The judge, with the support of the prosecutor, directed the jury that in such circumstances the accused could be convicted of murder notwithstanding that he may not have carried out the act that caused death. As was observed in RR v The Queen,[17] this involved a radical and late change in the Crown case, and the Director of Public Prosecutions (‘DPP’) ‘virtually conceded’ the appeal.[18]
[17][2013] VSCA 147, [117] (Ashley JA) (‘RR’).
[18]GAS [1998] 3 VR 862, 872 (Batt JA).
In Arafan v The Queen,[19] in which the accused had been charged with blackmail, after evidence and addresses had concluded, the Crown had sought to change its case from one of aiding and abetting the offending to a case of participation in a joint criminal enterprise. Once again, the DPP conceded the appeal.
[19](2010) 31 VR 82 (‘Arafan’).
In RR, Ashley JA stated:
In each of King and Arafan, the Crown raised a new case against the accused after evidence and submissions were concluded. It was a case in substitution for the case advanced thus far. The accused had no opportunity of controverting it. In GAS, the Crown supported the judge putting a new pathway to guilt, which again had not thus far been advanced. Again, the accused was forensically disadvantaged.[20]
[20]RR [2013] VSCA 147, [119].
Consideration — ground 4
We have concluded that the prosecution case was, from the prosecutor’s opening onwards, put in two complementary ways on the issue of consent. The primary case put forward was that there was no actual consent and that the complainant physically and verbally resisted the applicant’s advances. In our view it is tolerably clear that the prosecutor put to the jury a secondary or fallback case that if the jury accepted that the complainant was so affected by alcohol as to be incapable of consenting to the act then she was not consenting. Assuming this to be the case then the judge did not ‘enlarge’ the prosecution case and the ground fails. We shall explain our reasons for this conclusion.
We have used the phrase ‘tolerably clear’ because a number of relevant exchanges between counsel and the judge were quite obscure and the proper meaning of the words spoken can only be sensibly understood by examining the exchanges in full, and the surrounding circumstances — particularly the reactions of counsel.
In the summary of prosecution opening no direct mention was made of the complainant’s capacity to consent. The prosecutor did, however, advert to the following matters related to intoxication:
·The complainant felt drunk and sick after drinking in the kitchen.
·She stopped drinking.
·She went into her bedroom, lay on her bed and vomited into a bucket.
·She did not go to the Arbory bar with M and the applicant as she felt sick.
·The applicant told the complainant’s friend to take a photograph of the complainant to show her how ‘fucked up’ she looked.
·When the others returned from the Arbory bar, the complainant had thrown up on the bed.
·The complainant was moved to a couch in the lounge room and threw up again.
·The complainant lost memory for a time. She ‘came to’ with her head over the toilet bowl.
·The applicant was counselling her to put her fingers down her throat to induce vomiting.
·The complainant kept telling the applicant that she just wanted to go to bed and sleep.
·The applicant carried the complainant to his bed. The complainant ‘felt weak and disorientated’.
·The complaint was ‘so tired she could feel herself passing out’.
·When the applicant lay on the bed and asked the complainant to roll over she said, ‘No, I feel sick.’
·When the applicant licked the complainant’s vagina, the complainant ‘felt like she was drifting in and out of consciousness’.
While the summary of prosecution opening did not refer to s 36(2)(e), it is plain that at the time of the penetrative acts, it was the prosecution case that the complainant was substantially affected by alcohol. Indeed, the defence also relied on that fact: it sustained its submissions in support of its request for an unreliable witness direction.
As we have observed, the oral prosecution opening delivered to the jury contained the following statement, which was made very shortly after the facts had been summarised, including the circumstances of the complainant’s intoxication:
The prosecution obviously … say that Mr [Parker] committed rape on
26 November 2017 when the complainant was not consenting, or able to consent, to any of the sexual penetrations by Mr [Parker] …
We agree with the respondent that this is a ‘plain and unequivocal reference to the s 36(2)(e) deeming provision’. It follows that, as opened, the prosecution case was that the complainant did not consent to penetration but was overcome by force and/or at any event, she was unable to consent as a consequence of her intoxication (s 36(2)(e)). It is this expression of the prosecution case that must be borne steadily in mind when considering some of the submissions and judicial responses that came later. We also observe that these two pathways to a finding of guilt are not mutually exclusive. An intoxicated person may well be able to resist unwanted advances, and yet not be capable of giving consent.
Insofar as the applicant contended that ‘the prosecution did not at any stage submit to the jury, explicitly or implicitly, that the complainant was so intoxicated as to be incapable of consenting to sexual penetration’, we consider that contention to be incorrect. The prosecutor made that submission explicitly in the passage set out at [66].
In her evidence the complainant essentially confirmed the factual matters opened by the prosecutor. She was intoxicated; the applicant penetrated her vaginally and anally; she protested and physically resisted; there are gaps in her memory; at times she felt weak; at times she felt like passing out; and, she made complaint immediately. True it is that she was not asked in terms by the prosecutor, ‘Were you so affected by alcohol as to be unable to consent?’,[21] however, her evidence was littered with references to her consumption of alcohol and its unfortunate effects. In our view there was certainly sufficient evidence upon which the jury could have concluded that there was a lack of consent through the pathway provided by s 36(2)(e). This of course is not an answer to this ground of appeal, which argues not that there was insufficient evidence to justify the judge’s charge, but that the case was never put on a s 36(2)(e) basis. It would, however, have been an unusual course for the prosecutor to take, in the face of that evidence of intoxication, not to have placed any reliance on s 36(2)(e) at all.
[21]Which question would have invited the expression of inadmissible opinion.
As the trial progressed there were more indirect references as to the way the prosecution case was being put. The prosecution called Dr Gaya, an expert witness who gave evidence as to the effects of alcohol intoxication and the graded states of impairment said to arise therefrom. Other evidence in the case also supported the complainant’s state of intoxication.[22]
[22]Evidence of M.
At the conclusion of the evidence, submissions under s 12 of the JDA were invited. After some discussion between the judge and defence counsel about incriminating conduct, the following exchange occurred:
HIS HONOUR: … More importantly there are matters about consent that flow from section 47. I have made assumptions about that which are based on the evidence that we’ve heard but I don’t know that there’s going to be any great controversy about it. It obviously calls [into] play section 36[,] that of deeming provisions as well as the whole matter about the reasonableness of belief and other matters like that. If there’s any controversy at the Bar table we can resolve.
[DEFENCE COUNSEL]: Yes. I suppose we are agreed that the intoxication issue’s really relevant to her as opposed to him.
HIS HONOUR: Yes, that’s what I meant.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: You did allude to the direction in relation to unreliability. I heard some ---
[DEFENCE COUNSEL]: No, but on the question of consent and intoxication.
HIS HONOUR: No, I meant her, not him.
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: So there’s a matter about unreliability ---
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: --- which may need to be raised. I thought that what you were referring to was a general direction about when witnesses are intoxicated or affected by alcohol, and the impact that the jury would need to consider in those circumstances, and I would have thought that there’s nothing controversial about that, but I seem to hear some murmur from the learned prosecutor. But we can set that straight. So there’s really those matters. If there are — and the scheme of the Jury Directions Act these days requires a request to the judge for those sort of directions ---
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: --- then I anticipate the prosecution will ask me for those directions.
[DEFENCE COUNSEL]: Yes.
It will have been noted that the judge referred to s 47 of the JDA, ‘which [called into] play the s 36 … deeming provisions as well as the whole matter about the reasonableness of belief and other matters like that’. Section 47 of the JDA relevantly provides as follows:
47 Direction on reasonable belief in consent
(1)The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on reasonable belief in consent.
(2)In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify one or more of the directions set out in subsection (3).
(3)For the purposes of subsection (2), the prosecution or defence counsel may request that the trial judge—
(a)direct the jury that if the jury concludes that the accused knew or believed that a circumstance referred to in section 36 of the Crimes Act 1958 existed in relation to a person, that knowledge or belief is enough to show that the accused did not reasonably believe that the person was consenting to the act …
In our view it is reasonably clear that the judge was stating to counsel that he anticipated receiving a prosecution request to charge the jury that if the jury concluded that the complainant was so intoxicated as to be ‘incapable of consenting to the act’,[23] and that the applicant knew or believed this to be the case, that was enough to show that the accused did not reasonably believe that the complainant was consenting. Thus, he was addressing element 3 of the offence of rape at this stage.[24]
[23]A circumstance referred to in s 36 of the Crimes Act.
[24]The elements of rape are set out above at [39].
Defence counsel’s response indicated that he understood well how the complainant’s alcohol-affected capacity to consent bore upon the ‘reasonable belief in consent’ issue that was before the jury. That means he understood how s 47 of the JDA related to the circumstance identified in s 36(2)(e). He also then tried to focus the judge’s attention on ‘the question of consent and intoxication’, however, the discussion veered off into the unreliability direction.
Not long after this exchange the prosecutor was invited to set out her requests for jury directions:
[PROSECUTOR]: Yes, Your Honour. In terms of the directions, I had marked down distress, recent complaint, unreliability, s 32, opinion evidence, previous representations, and s 46 and s 47. And the indications in terms of motive to lie and as a party direction going to them, I take any issue in relation to a course.
HIS HONOUR: Yes. In relation to the consent directions - - -
[PROSECUTOR]: It’s s 46, Your Honour.
HIS HONOUR: Well, s 47(b) seems to pertain to an accused who was intoxicated.
[PROSECUTOR]: Yes.
HIS HONOUR: But (c) talks about a belief in consent based solely on a general assumption about the circumstances in which people consent, and consent based on a combination of matters including a general assumption. And also, then (d) goes on to consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent, and then - - -
[PROSECUTOR]: (e).
HIS HONOUR: - - - (e) goes on to taking into account personal attributes, characteristic or circumstances of the accused. Are you seeking the direction dissent into any of those?
[PROSECUTOR]: No, Your Honour. We’re not in a situation where, for example, the accused is drunk, which makes it very complicated.
HIS HONOUR: Yes.
[PROSECUTOR]: Because the directions seem to say ‘Well, you know, if you’re a reasonable person and you’re as drunk as the accused’ — he said he had four beers or something that night, but really it’s sub-s (d) in the circumstances.
HIS HONOUR: Are you asking me for that direction?
[PROSECUTOR]: Yes.
HIS HONOUR: Yes.
[PROSECUTOR]: Of course.
HIS HONOUR: Can you just expand slightly on why you say that and why you say that? Are you saying that the circumstances of his situation, in terms of being the owner or guest, or host, I should say, in the circumstances in which he finds himself, require an examination of the jury of community expectations?
[PROSECUTOR]: Not just that, Your Honour. It’s also the inebriation or intoxication of the complainant, which is exactly what you’ve been asked to direction upon in relation to reliability.
HIS HONOUR: Yes. Certainly, I think that these directions ought to generally direct the jury to consider the reasonableness of the belief based on the evidence that the circumstances and the totality of the evidence that they have about that. I have to make that clear. All right. Yes, all right.
[PROSECUTOR]: I think I’ve covered everything in terms of directions.
It is plain that no request was made in terms for a s 36(2)(e) direction. Section 46 of the JDA was part of the prosecutor’s requests, however. That section relevantly reads:
46 Direction on consent
(1)The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on consent.
(2)In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—
(a)in the case of a request for a direction on the meaning of consent — one or more of the directions set out in subsection (3); or
(b)in the case of a request for a direction on the circumstances in which a person is taken not to have consented to an act — one or more of the directions set out in subsection (4).
…
(4)For the purposes of subsection (2)(b), the prosecution or defence counsel may request that the trial judge—
(a)inform the jury of the relevant circumstances in which the law provides that a person does not consent to an act; or
Note
Section 36 of the Crimes Act 1958 sets out these circumstances.
(b)direct the jury that if the jury is satisfied beyond reasonable doubt that a circumstance referred to in section 36 of the Crimes Act 1958 existed in relation to a person, the jury must find that the person did not consent to the act.
The prosecutor’s request for directions under s 46 of the JDA obviously related to directions on consent. In the context of the case, in particular given the manner in which the case was opened, the prominent place the complainant’s intoxication occupied in the evidence, and the earlier discussion about the s 36 ‘deeming provisions’ we consider that the prosecutor’s JDA s 46 request was an indirect request for consent directions under sub-ss 36(2)(a) and (e). In other words, a request for directions on force and alcohol-induced incapacity. The request for directions under s 46 has no other sensible meaning.
The applicant contended alternatively that, while the prosecutor may have orally opened the operation of s 36(2)(e), she disavowed reliance upon it by her conduct in the trial. This submission must be rejected. It is apparent from the discussion above that s 36(2)(e) (through s 46 of the JDA) was on the prosecutor’s list of requested directions at the end of all the evidence. Whilst the prosecutor in her closing address put the prosecution’s primary position ‘that on [the complainant’s] evidence there’s emphatically no consent’, this simply does not constitute an abandonment of the alternative s 36(2)(e) reasoning pathway.
Very shortly after the ‘emphatically no consent’ submission, the prosecutor turned to Dr Gaya’s evidence about the different stages of alcohol-induced impairment. She then said:
The complainant has told you in the bed she could say no but she felt weak and couldn’t move herself, but that stage is the lower stage on the toxicology that we have. So we have a second stage that Dr Gaya spoke of, which he called the excitement stage. He told you there’s a loss of critical judgment. You may start having impairment of perceptions, impaired memory, comprehension, there may be vomiting and drowsiness at those stages, and because of this overlap he also went on to speak about a third stage of intoxication, being the confusion stage.
This is the stage where you become disorientated, you’re mentally confused, which is a sense of that, you know, the room’s spinning around you, and this is the stage where people are grossly uncoordinated, and having staggered gait and become very lethargic.
You’re going to get directions from His Honour in relation to the fact that the complainant had been drinking that night.
The prosecutor in her closing address thus foreshadowed the judge giving directions relating to the complainant’s intoxication. We consider this was a reference to:
(n) its impact on element 2 of the offence via s 46 of the JDA and s 36(2)(e) of the Crimes Act;
(o) its impact on element 3 of the offence via s 47 of the JDA and s 36(2)(e); and
(p) the unreliable witness direction requested by the defence.
In our view the overall conduct of the trial from the prosecutor’s opening to the judge’s charge demonstrates with some clarity that the Crown case was always that the complainant physically and verbally resisted the applicant at a time when she may well have been incapable of giving consent at any event. The failure of experienced defence counsel to take exception to the now impugned s 36(2)(e) direction, given his proactive approach throughout the trial, provides powerful reinforcement for this conclusion. If this case had been enlarged by this direction, as the applicant now contends, defence counsel would have been loud and forceful in his complaints.
It would be remiss not to comment upon the delphic nature of the exchanges between the judge and counsel during the JDA s 12 process. The judge and counsel were talking in shorthand. That is not intended as a trenchant criticism — all parties were thoroughly immersed in the minutiae of the case and the temptation to ‘cut to the chase’ at this late stage of the trial was, no doubt, powerful. As we have observed, all parties, at the time, seemed to understand what the real issues in the case were and what was being requested. Notwithstanding this, the practice of cryptic communications between bench and bar table is to be deprecated. It is in the interests of justice that communications in open court be clear to all (including this Court) and not just clear to the parties to the discussion.
This trial was not perfect, or even close to perfect. The prosecutor should probably have sought leave under s 224(2) of the Criminal Procedure Act to deviate from the written summary of prosecution opening filed with the Court and, as we have commented, communications between bench and bar table should have been much clearer. The judge should also have let the parties lead the JDA s 12 discussion rather than directing it himself. These, however, are failures of form rather than of substance. While not perfect, this was a fair trial. We are entirely satisfied that defence counsel knew from the prosecutor’s opening how the case against his client was being put and he conducted the defence accordingly.
Conclusion
The extension of time is refused in respect of ground 1. We would grant the extension of time insofar as it concerns ground 4, grant leave to appeal under ground 4, but dismiss the appeal.
See JDA ss 12, 65(a); King (1986) 161 CLR 423, 428–9; Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J); R v Falcone (2008) 190 A Crim R 440, 450–2 [60]–[63] (Vickery AJA); Waters v The Queen [2011] VSCA 415, [103] (Ashley JA); Robinson v The Queen (2006) 161 A Crim R 88,
127–8 [140] (Johnson J); R v GAS [1998] 3 VR 862, 878–9 (Batt JA) (‘GAS’).
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