Parker (a pseudonym) v The Queen
[2021] VSCA 139
•21 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0237
| CHARLES PARKER[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.
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| JUDGES: | KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 21 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 139 |
| JUDGMENT APPEALED FROM: | [2020] VCC 583 (Judge Gucciardo) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Conviction – Four charges of rape – Whether judge erred in directing jury on unreliable evidence, prior inconsistent statements and third element of offence of rape – Application for extension of time to file notice of application for leave to appeal – Grounds of appeal not reasonably arguable – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
KYROU JA:
Introduction and summary
On 12 December 2019, the applicant was convicted of four charges of rape and acquitted of one charge of rape by a County Court jury. On 8 May 2020, he was sentenced by the trial judge as set out in the table below:[2]
[2]DPP v Parker [2020] VCC 583.
Charge Offence Maximum Sentence Cumulation 1 Rape [Crimes Act 1958 s 38(1)][3] 25 years 5 years 1 year 2 Rape 25 years 5 years 1 year 3 Rape 25 years 5 years 1 year 5 Rape 25 years 5 years Base Total effective sentence: 8 years’ imprisonment Non-parole period: 5 years and 3 months Pre-sentence detention declaration: 148 days Other relevant orders: Sentenced as a serious sexual offender on charges 3 and 5 [Sentencing Act 1991 s 6F] [3]References to the Crimes Act are to that Act as amended by the Crimes Amendment (Sexual Offences) Act 2016.
The applicant seeks leave to appeal from his conviction on the following grounds:[4]
1There has been a substantial miscarriage of justice arising from the trial judge’s directions about unreliability.
2There has been a substantial miscarriage of justice arising from the trial judge’s directions about prior inconsistent statements.
3There has been a substantial miscarriage of justice arising from the trial judge’s directions about the third element of rape.
[4]All references to grounds of appeal in these reasons are to proposed grounds of appeal.
The applicant also seeks an extension of time within which to file his notice of application for leave to appeal.
For the reasons that follow, none of the grounds of appeal are reasonably arguable. As the application for leave to appeal is doomed to fail, the application for an extension of time will be refused.
Prosecution case
The prosecution case at trial is set out at [6]–[18] below. It is largely based on the evidence of the complainant (‘K’) and her friend (‘M’).
The applicant lived in a two-bedroom apartment in Elizabeth Street, Melbourne. He rented the second bedroom on Airbnb, on which website he was identified as a ‘super host’. The second bedroom contained a double bed.
K and M booked the applicant’s second bedroom via Airbnb for four days. They arrived in Melbourne from interstate on Friday, 24 November 2017 at 11:00 am. The applicant was then 41 years old, and K and M were both 19.
K and M went out during the day on 24 November 2017 and returned to the apartment with a bottle of vodka and two bottles of lemonade. The applicant was at the apartment when K and M returned. A friend of the applicant arrived at some stage and a friend of K and M arrived at 10:30 pm. The five of them socialised and drank some alcohol, before K, M and their friend went out at 11:30 pm.
Before K, M and their friend left, the applicant told K to wake him when they returned so that they could all continue drinking. When K and M returned to the apartment at 4:00 am, they did not wake the applicant.
K and M went out the following day (Saturday, 25 November 2017) and returned to the apartment at 6:00 pm. They had bought another bottle of vodka and planned to go out again that evening. The applicant subsequently returned to the apartment and a friend of his arrived shortly afterwards. The four of them socialised and drank alcohol at the apartment.
At some stage during the night, K began to feel ill due to the alcohol she had consumed. She went into the bedroom she shared with M and lay on the bed. She vomited in a bucket the applicant had provided and then remained on the bed as she continued to feel unwell. K did not recall going into the bedroom or being sick.
The applicant, his friend and M went to a nearby bar, leaving K on the bed. The applicant’s friend left soon after they arrived at the bar, and the applicant and M returned to the apartment shortly afterwards, at around 11:00 pm. K had vomited on the bed while M and the applicant were out. M took a photograph of K, passed out on the bed, at 11:07 pm.
M and the applicant moved K to the couch in the living room and the bedding was changed. K again vomited while on the couch. M went to bed and fell asleep after a short period. K remained on the couch and the applicant sat near her. She did not recall these actions occurring.
K’s next memory was that she was in the bathroom, with her head over the toilet bowl, dry retching. The applicant was with her and told her to stick her fingers down her throat. She told him that she did not want to throw up and that she just wanted to go to bed. The applicant repeatedly asked her if she wanted to go to his bed and she told him, ‘No I want to go to my bed and I just want to go to sleep’. The applicant said, ‘I’ll take you to my bed’.
The applicant carried K to his bedroom and placed her on his bed. She felt weak and went to sleep. She woke up with the applicant on top of her and she told him she was feeling sick.
The applicant removed K’s underwear as she was telling him ‘No’ and to leave her alone and not touch her. He licked her vagina as she repeated the word ‘No’. He penetrated her vagina with his fingers (charge 1 — rape) and then penetrated her vagina with his penis (charge 2 — rape). She was trying to push him away, but did not have the strength to do so.
The applicant again licked K’s vagina and inserted one or two of his fingers into her vagina (charge 3 — rape). He placed his knees on her shoulders, with his penis near her face and asked her to suck his penis. When she refused and turned her face away, he again penetrated her vagina with his penis (charge 5 — rape).[5]
[5]
K used her leg to push the applicant off her and grabbed her underwear. She went into the bedroom where M was and complained to her that the applicant had raped her.
It was not in dispute that M called K’s mother and 000. Following the telephone calls, M and K left the apartment to wait for the police. Uniformed police arrived and made initial enquiries, before officers from the Sexual Offences and Child Abuse Investigation Team took over the investigation.
K complained to police of rapes and some pain to her vagina. On the morning of 26 November 2017, the police took her to hospital, where she was examined by a forensic medical officer, Dr Vicky Kim. Blood and urine samples were also taken and analysed.
At trial, Dr Kim gave evidence that, during her forensic examination of K on 26 November 2017, she identified a 5-by-10 millimetre abrasion to K’s upper vaginal vestibule, a 10-by-10 millimetre abrasion to her fossa navicularis and a two millimetre laceration to her posterior fourchette. Dr Kim stated that each injury was consistent with blunt-force trauma. She also stated that genital injuries may occur during either consensual or non-consensual sexual activities, but visible signs of injuries are not common.
The prosecution also led expert evidence from Dr Dhirendranath Sanjeev Gaya. Dr Gaya stated that, between midnight and 2:00 am on 26 November 2017, K would have had a blood alcohol concentration of between 0.122 and 0.237 per cent. Dr Gaya also gave evidence as to the effects of alcohol, including disinhibition and impaired memory.
K gave evidence that she and M were not kept apart when they initially spoke to police and that they had subsequently spoken a number of times, including about the initial complaint K made to M. K also gave evidence that she did not recall providing details of the alleged rapes to M, besides saying that she had been raped and that the applicant had tried to make her suck his penis. However, M did not agree that she and K were not kept separate and gave evidence that K told her further details when she came into their bedroom following the alleged rapes.
The applicant was arrested and interviewed on the morning of 26 November 2017.
During his interview, he stated that K had initiated the sexual contact. He alleged that he asked her whether she was comfortable with what was happening and that she said ‘Yes’. He claimed that she later said, ‘No, hang on, hang on, hang on, stop’, and he immediately stopped.
The applicant’s case at trial was that K had consented to the conduct the subject of charges 1, 2, 3 and 5 and that no anal penetration had occurred.
In his closing address to the jury, defence counsel submitted that K made prior inconsistent statements. Those prior inconsistent statements were said to include the following:
(a)K told police on the evening of the alleged rapes that the applicant had helped her in the bathroom. At trial, K gave evidence that she did not remember saying this to the police.
(b)In her statement to police, K said that she woke M and told her about the alleged rapes. At trial, K gave evidence that, after waking M, M asked her what was going on and she told M about the alleged rapes.
(c)K told a police officer on the evening of the alleged rapes that the applicant had penetrated her anus, but did not mention vaginal penetration. She subsequently mentioned vaginal and anal penetration to another police officer that evening.
(d)At the committal hearing, K said that she did not remember telling the applicant on Friday, 24 November 2017 that she would have her way with him. At trial, she said that she did not say that.
Defence counsel also submitted that M made prior inconsistent statements, including describing K as ‘passed out’ in her statement to police, as ‘blacked out’ at the committal hearing and as ‘unconscious’ during the trial.
Defence counsel also relied on the fact that K remembered very little of what had happened on the night of the alleged rapes. He also told the jury that the failure of police to separate K and M initially created a high risk of their accounts being contaminated.
Pre-charge discussions
Defence counsel requested that the judge give the jury a direction pursuant to s 32 of the Jury Directions Act 2015 (‘JDA’) on unreliable evidence in relation to witnesses who were affected by alcohol. Section 32(3) of the JDA relevantly provides:
In giving a direction [on unreliable evidence], the trial judge must—
(a)warn the jury that the evidence may be unreliable; and
(b)inform the jury of—
(i)the significant matters that the trial judge considers may cause the evidence to be unreliable; or
(ii)…; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
Defence counsel also sought that the judge give the jury a direction on prior inconsistent statements. The judge replied that such a direction ‘call[ed] into play’ the direction on different accounts pursuant to s 54D of the JDA.[6] Section 54D of the JDA relevantly provides:
[6]Transcript of Proceedings (9 December 2019) 497.18–497.20.
54D Direction on difference in complainant’s account
(1)If, after hearing submissions from the prosecution and defence counsel …, the trial judge considers that there is evidence in the trial that suggests a difference in the complainant’s account of the offence charged that is relevant to the complainant’s credibility or reliability, the trial judge must direct the jury in accordance with subsection (2).
(2)In giving a direction referred to in subsection (1), the trial judge must inform the jury that—
(a)it is up to the jury to decide whether the offence charged, or any alternative offence, was committed; and
(b)differences in a complainant’s account may be relevant to the jury’s assessment of the complainant’s credibility and reliability; and
(c)experience shows that—
(i)people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and
(ii)trauma may affect different people differently, including by affecting how they recall events; and
(iii)it is common for there to be differences in accounts of a sexual offence; and
Example
People may describe a sexual offence differently at different times, to different people or in different contexts.
(iv)both truthful and untruthful accounts of a sexual offence may contain differences; and
(d)it is up to the jury to decide—
(i)whether or not any differences in the complainant’s account are important in assessing the complainant’s credibility and reliability; and
(ii)whether the jury believes all, some or none of the complainant’s evidence.
…
Judge’s charge
The judge gave the jury the following directions regarding unreliable evidence:
[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 her 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.[7]
[7]Transcript of Proceedings (11 December 2019) 651.24–654.7.
In the course of explaining how the jury could use complaint evidence, the judge said:
In this case you also heard evidence of [K’s] complaint from [M]. It would be a mistake to treat her evidence as an independent complaint evidence, independent evidence of the complaint. Although she gave evidence about the complaint in court, it was the complainant who was the source of that evidence. So you must not mistake that as independent evidence of the fact, about which the complaint was being made. It is evidence merely and only of the complaint having been made. All right? And the same goes of course, where the source of that complaint is the complainant, whether it is to a witness or to the police, the source is the complainant.[8]
[8]Transcript of Proceedings (11 December 2019) 648.24–649.5.
In relation to prior inconsistent statements, the judge added the following:
Now in this case you have heard argument from the defence that the witness, both witnesses in fact, more importantly the witness who is the complainant had previously given different version[s] of these events. Now there were quite a number of those and I am not going to enumerate them for you. The final addresses of counsel indicated to you where those instances were. They can be found in the transcript. But points were made repeatedly about the difference and I think yesterday, you remember that [defence counsel] was making a point, for example, that at some point when it was described initially to [M], that some mention was made about oral penetration. That later on, the rape is described in different ways.
So there have been many, including what for example were inconsistencies in the descriptions of what had taken place before, so not just about the sexual contact, but the activities before.
If you accept that the witness made, gave different versions of events, again what are you to make of that? Well there are two ways again, that you can use such inconsistencies, if you find them to have been in existence in the evidence. First, you can use the content of the statement as evidence in the case.
Secondly, if you find that the statement is inconsistent with her account in court, you may use the statement to assess her credibility and reliability. You may find that the fact that she had previously given an inconsistent account means the evidence in court is less likely to be accurate and truthful, and therefore you might be less willing to accept her evidence.
It is for you, members of the jury, to determine whether or not, even if you think that there have been inconsistencies, whether you are prepared to draw any conclusion from any inconsistency that you find.
You should keep in mind that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details. And you should pay close attention to the circumstances in which statements which are said to be inconsistent were made, in order to evaluate their inconsistency and what they are worth to you and to your thinking.
If you do find that the witnesses have made inconsistent statements in their evidence to their evidence in court, you will therefore have two different accounts, and it is for you to determine which account, if any, you believe. It is a matter for you.[9]
[9]Transcript of Proceedings (11 December 2019) 650.6–651.22.
The judge explained that the three elements of the offence of rape were: (1) the accused intentionally sexually penetrated the complainant; (2) the complainant did not consent to the sexual penetration; and (3) the accused did not reasonably believe that the complainant consented to the sexual penetration. In relation to the second element, he informed the jury that s 36 of the Crimes Act sets out circumstances in which a person is deemed not to consent to an act. He stated that the two circumstances that appeared most relevant were: where the person is so affected by alcohol as to be incapable of consenting to the act; and where the person does not say or do anything to indicate consent to the act.
In relation to the third element of the offence of rape, the judge stated as follows:
The third element relates to the accused’s state of mind about the complainant’s consent. What must be proved is that at the time of the sexual penetration the accused did not reasonably believe that she was consenting.
Now, that third element can be proved in one of three ways. The first one is, the accused believed that she was not consenting. The second is, the accused gave no thought to whether the complainant was consenting. The third way is, even if the accused may have believed that she was consenting, that belief was not reasonable in the circumstances. … Let me explain that.
The prosecution does not have to prove all three of those state of minds. One is sufficient. If the prosecution does not prove any of these states of mind, then you must find this element not proven.
In this case, evidence was led that at the time of sexual penetration the accused believed that she was consenting to the sexual act because she had, in the accused’s expression, driven this encounter. The prosecution says the complainant was so affected by alcohol as to be incapable of consenting to the act. So those are the two start positions, prosecution and defence.
You will remember what I told you about the deeming provisions in the law about being affected by alcohol and not having said or done anything, which of course the defence says, well that is contrary, completely contrary both to the evidence and what the accused says she did and said plenty.
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 that she was consenting.
I will repeat it. If you find that the accused knew or believed that the complainant was so affected by alcohol as to be incapable of consenting, that is enough to show that the accused did not reasonably believe that the complainant was consenting, and you may find the element proven.[10]
[10]Transcript of Proceedings (11 December 2019) 674.15–675.27.
The judge subsequently read out a checklist of the elements of the offence of rape, stating as follows:
So if you do it chronologically, you do this, perhaps. You ask, No.1, … ‘Did [the applicant] intentionally sexually penetrate [K] in the way alleged?’ And remember, … in relation to each charge, not just generally.
If the answer to that question is yes, then you proceed. If the answer is no, that is a not guilty verdict.
The second issue, consent. Did the sexual penetration occur without [K’s] consent? Yes, element proven, move on to No.3. No, element not proven. Not guilty.
Now there I have written, consider, in some circumstances the law says the complainant did not freely agree or consent to sexual penetration. So here I am reminding you of those circumstances that I told you about, and in particular where the person is so affected by alcohol as to be incapable of consenting to the act. That is because that is the central plank of the prosecution, that that is what she was. If you are satisfied beyond reasonable doubt that such a circumstance existed in relation to [K], you must find that she was not consenting.
And then we move on to three, his state of mind. …
It is not just a matter of proving element 3. Element 3 must accompany answer yes to one and two.
…
[A] belief will be reasonable if there are reasonable grounds for a person in the position of the accused to hold that belief. Consider all the circumstances and decide whether the belief in consent was reasonable; and … if you find that [K] was so affected by alcohol as to be incapable of consenting to the act, you must consider then whether [the applicant] knew or believed that she was so affected by alcohol as to be incapable of consenting to the act, and if you find that he knew or believed that this is enough to show that he did not reasonably believe that she was consenting, and you may find this third element proved. [11]
[11]Transcript of Proceedings (11 December 2019) 676.28–677.22, 678.9–678.11, 678.25–679.7.
Ground 1: Direction on unreliable evidence
The applicant submitted that the judge’s direction to the jury that K may have been an unreliable witness because of her intoxication was incomplete and constituted a misdirection. This was said to be for four reasons.
First, the applicant contended that there was no evidence independent of K that went to the question whether the sexual penetration alleged occurred in the absence of consent. It was said that the jury ought to have been reminded that the complaint evidence was not independent of K.
Secondly, the applicant argued that both K and M made a series of prior inconsistent statements that went to the issue of unreliability.[12]
[12]See [27]–[28] above.
Thirdly, the applicant submitted that K’s and M’s evidence was potentially contaminated by conversations between them after the alleged offending.[13]
[13]See [23] above.
Fourthly, the applicant contended that the evidence showed that K had engaged in conduct that she could not later remember. In particular, K did not remember being on the bed she shared with M, having a bucket placed next to her, vomiting on the bed, being taken or carried to the couch, being on the couch, vomiting on the couch or M going to bed. The applicant argued that K’s memory loss, however, did not mean that she was so intoxicated at the time of the alleged offending as to have been obviously incapable of giving consent. Rather, he submitted that gaps in her memory, other evidence that was inconsistent with her evidence and prior inconsistent statements that she had made informed the assessment of the reliability of her evidence. The memory gaps were said to have informed the prospect that K had indicated consent to the applicant but could not later remember doing so.
The applicant contended that the second and third reasons above ought to have resulted in the unreliable evidence direction going to M’s evidence, as well as K’s evidence.
The Crown submitted that the principal reason for directing a jury that the evidence of a particular witness might be unreliable was that the jury might not be sufficiently alert to the potential unreliability of that evidence or the reasons why it may be unreliable.[14] It contended that the Court could not be assumed in this case to have special experience or knowledge of the likely effects of alcohol, beyond that of an ordinary member of the jury. It argued that, to the extent that such information was not within the realm of the jury’s knowledge, expert evidence was called.[15]
[14]The Crown relied upon Hudson v The Queen [2017] VSCA 122, [49]–[50], [52]; Danny v The Queen [2020] VSCA 8, [98]–[99].
[15]See [22] above.
According to the Crown, the issue of the reliability of K’s and M’s evidence occupied much of their cross-examination and counsel’s closing addresses. The Crown submitted that, in directing the jury immediately following the conclusion of defence counsel’s closing address, the way in which defence counsel characterised the reliability issue would have been fresh in the jurors’ memories.
The Crown contended that, in relation to supporting evidence, the judge twice warned the jury that it must only accept evidence as supporting evidence if it was truly independent. The Crown argued that this direction must also be viewed in the context of the directions already given on complaint evidence.[16]
[16]See [33] above.
The Crown submitted that the judge’s direction about whether K’s evidence was unreliable expressly encompassed the evidence of the complainant and ‘the evidence of others who were affected by alcohol’.[17] It contended that the judge’s noting of K’s evidence ‘in particular’ was unsurprising given the evidence as to her level of intoxication, her lack of memory and the fact that her evidence was the central pillar of the prosecution case.
[17]See [32] above.
The Crown contended that the judge’s direction on unreliability went beyond that requested by defence counsel. This was said to be because defence counsel only requested a direction on unreliability in relation to intoxication, whereas the judge expressly identified intoxication and collusion as going to any potential unreliability.
In my opinion, ground 1 is not reasonably arguable.
The judge’s charge, read fairly and as a whole, sufficiently conveyed to the jury the manner in which it could consider the intoxication of K and M in determining the reliability of their evidence. The judge’s statements relating to the possible effect of intoxication on a person’s ability to accurately recall events would have been well understood by the jury. Even though the judge’s statements placed some emphasis on K’s evidence, the judge was careful to couch them in sufficiently general terms to also encompass the evidence of M.
The judge explained to the jury that, in considering whether the evidence of K relating to the alleged rapes was supported by other evidence, the other evidence had to be independent of her. He made it clear that M’s evidence that K complained to her about the alleged rapes was not independent of K because K was the source of that evidence. The judge emphasised that the complaint evidence was not independent of K when he directed the jury in relation to unreliability and also when he directed the jury on how they could use the complaint evidence.
The judge referred to ‘inconsistencies’, ‘gaps’ and ‘differences’ in K’s account and to K and M having previously given different versions of events. 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.
Even though defence counsel did not specifically request the judge to direct the jury that collusion between K and M could affect the reliability of their evidence, the judge nevertheless raised this issue with the jury. His references to ‘putting together of their heads’, ‘fabrication’, ‘collusion’, and ‘kept together’ made it clear to the jury that, if it considered that K and M had discussed their evidence, it could take this into account in assessing the reliability of their evidence.
In his charge, the judge did not refer separately to the issue of K’s memory loss and how that might be taken into account by the jury in assessing the reliability of her evidence. Defence counsel did not request that a separate direction be given to the jury. Further, the fact that memory loss can affect the reliability of a witness’ evidence is a matter of common sense of which the jury would have been aware through their own life experiences.
In any event, the judge’s directions to the jury on unreliable evidence, in the context of the charge as a whole, would have left the jury in no doubt that it could take memory loss into account as a matter that might render K’s evidence unreliable. This is particularly so having regard to the fact that defence counsel told the jury that ‘[K] as a consequence of her memory gap, and the effect to which she’s affected by alcohol becomes an unreliable witness’.[18]
[18]Transcript of Proceedings (11 December 2019) 619.23–619.25. The word ‘effect’ may have been used instead of ‘extent’ due to a transcription error.
The judge’s direction on unreliable evidence was consistent with s 32 of the JDA and defence counsel did not take any exception to it.
Ground 2: Direction on prior inconsistent statements
The applicant submitted that, at trial, his case was that both K and M had made a significant number of prior inconsistent statements which were keenly relevant to the assessment of the prosecution’s case against him. He contended that, in charging the jury, the judge did not adequately articulate or particularise those prior inconsistent statements, or relate the relevant law to the facts of the case. This was said to be an error that gave rise to a substantial miscarriage of justice.
The Crown submitted that the direction on prior inconsistent statements was sufficiently detailed so as to assist the jury to determine the issues in the trial. This was said to be because of the following circumstances:
(a)The trial was of short duration (eight days).
(b)In relative terms, the evidence was not complex.
(c)As the judge informed the jury during the charge, the jury would have the transcript available during its deliberations.
(d)The closing addresses of both counsel were detailed. In particular, defence counsel provided transcript references for the prior inconsistent statements upon which he relied.
(e)Defence counsel’s closing address concluded on the same day the judge gave the charge to the jury.
(f)The judge made it clear to the jury that the applicant relied upon prior inconsistent statements not only in relation to the sexual contact, but also ‘the activities before’.[19]
[19]See [34] above.
In my opinion, ground 2 is not reasonably arguable. For the reasons set out in the Crown’s submissions, the judge’s charge to the jury was sufficient to convey how the jury could use the prior inconsistent statements of K and M upon which the applicant relied to assess the reliability of their evidence. In circumstances where the judge’s charge was given on the same day as defence counsel concluded his closing address and the jury was given the transcript, it was not necessary for the judge to repeat the detail of the prior inconsistent statements upon which the applicant relied. It is to be noted that defence counsel did not take any exception to the judge’s direction on prior inconsistent statements.
Ground 3: Direction on third element of the offence of rape
The applicant submitted that the judge misdirected the jury in making the following statement twice to the jury:
If you find that the accused knew or believed that the complainant was so affected by alcohol as to be incapable of consenting, that is enough to show that the accused did not reasonably believe that the complainant was consenting, and you may find the element proven.
The applicant contended that this direction did not inform the jury that a precondition to that consideration was a finding that K was so affected by alcohol as to be incapable of consenting.
The applicant conceded that the judge later gave the jury the proper direction. However, he argued that the judge failed to correct or refer back to the misdirection that he had given. This was said to be confusing and, in the context of the trial, gave rise to a substantial miscarriage of justice.
The Crown submitted that the direction on the third element of the offence of rape was given in the context of directions on all the elements of the offence. According to the Crown, the judge made it clear to the jury that each element had to be proven by the prosecution beyond reasonable doubt before the jury could return a verdict of guilty.
The Crown contended that the judge told the jury that, in the context of the deeming provisions relating to the second element of rape, it must be satisfied beyond reasonable doubt as to the existence of one of the circumstances to which the deeming provisions refer. The Crown argued that the directions in relation to the third element were logically predicated on the second element having been satisfied. It was said that such logic was implicit in the direction first given to the jury, set out at [60] above.
In my opinion, ground 3 is not reasonably arguable. The ground relies on a statement of the judge taken in isolation rather than considering it in the context of the charge as a whole. Prior to referring to the third element of the offence of rape, the judge explained to the jury that the second element was that K did not consent to the acts of sexual penetration and that it could be satisfied of that element if it concluded that K was so affected by alcohol as to be incapable of consenting. Thus, the jury was aware that the applicant’s knowledge or belief as to whether K was so affected by alcohol as to be incapable of consenting only arose if the jury concluded that K was so affected. The matter was later put beyond doubt when the judge made the statements set out at [37] above. It is to be noted that defence counsel did not take any exception to the judge’s direction on the third element of the offence of rape.
Conclusion
As I have found that the three grounds of appeal are not reasonably arguable, it would be futile to grant the applicant an extension of time to file his notice of application for leave to appeal. Accordingly, the application for an extension of time will be refused.
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Charge 4, in respect of which the applicant was acquitted, involved an allegation of
penile–anal rape.
3
0