Pompei v The King
[2023] VSCA 71
•4 April 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0066 |
| LEON POMPEI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, T FORREST and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 March 2023 |
| DATE OF JUDGMENT: | 4 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 71 |
| JUDGMENT APPEALED FROM: | DPP v Pompei (County Court of Victoria, Judge Lyon, 29 April 2022) |
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CRIMINAL LAW – Appeal – Whether jury’s verdict unreasonable or cannot be supported having regard to the evidence – Proposed ground of appeal arguable, but ultimately rejected – Whether trial miscarried when prosecutor relied on incriminating conduct type reasoning in final address – Leave to appeal granted, appeal allowed – Retrial ordered.
Evidence Act 2008 and Jury Directions Act 2015 referred to.
M v The Queen (1994) 181 CLR 487, Baini v The Queen (2012) 246 CLR 469, Lowe v The Queen (2015) 48 VR 351, The Queen v Baden-Clay (2016) 258 CLR 308, Pell v The Queen (2020) 268 CLR 123 and Awad v The Queen; Tambakakis v The Queen [2022] HCA 36 referred to.
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| Counsel | |||
| Applicant: | Mr DA Dann KC | ||
| Respondent: | Mr CB Boyce KC | ||
Solicitors | |||
| Applicant: | Anthony Isaacs | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
T FORREST JA
KAYE JA:
The applicant was charged on indictment[1] with two charges of rape and one charge of common assault alleged to have been committed on 5 May 2019. He pleaded not guilty on 1 February 2022, and for reasons not relevant to this application the jury was discharged without verdict. This occurred during the complainant’s evidence. The balance of the complainant’s evidence was recorded for use in a subsequent trial.
[1]Indictment No K11959722.1.
A new indictment was filed[2] on which the applicant was charged with one count of rape and one charge of common assault. The applicant pleaded not guilty and following a full trial and lengthy deliberation the jury was discharged without verdict.
[2]Indictment No K11959722.2.
A third jury was empanelled on 17 February 2022 on the same indictment. The applicant was subsequently convicted of both the common assault charge and the rape charge. He was sentenced as follows:
Charge
Offence
Maximum penalty
Sentence
Cumulation
1 Common assault (contrary to common law) 5 years 4 months 2 months 2 Rape (contrary to s 38 of the Crimes Act 1958) 25 years 6 years and
10 months
Base Total Effective Sentence:
Non-Parole Period:
7 years
4 years 6 months
Pre-sentence Detention: 64 days Other Relevant Orders:
No application was made for registration under the Sex Offenders Registration Act 2004.
In his notice of appeal the applicant expressed a single ground of appeal as follows:
Ground 1: The jury’s verdict on each charge was unreasonable or cannot be supported having regard to the evidence.
Shortly before this application was to be heard the court was notified that the applicant would seek to add a further ground. That proposed ground was expressed as follows:
Ground 2: The trial of the Applicant miscarried in circumstances where the learned Prosecutor relied on incriminating conduct type reasoning in her final address when (a) no notice of incriminating conduct had been filed, (b) no notice had been given that the learned prosecutor would be relying on such reasoning, and (c) no direction was given to the jury about such reasoning.
Unsurprisingly, Senior Counsel for the respondent did not consent to the addition of the ground, but was content for the ground to be argued orally and, if necessary, further in short written submissions. We are grateful to counsel for this convenient and practical approach.
We permitted Senior Counsel for the applicant to advance argument under this additional ground, and reserved the question of whether we would ultimately grant leave to appeal until we had formed a view about the merits of the ground.
Before we examine the grounds of appeal we shall set out a short summary of the relevant factual matters.
The following facts are uncontroversial. The complainant was employed as a sexual services provider at a registered brothel. On 5 May 2019, the applicant visited the brothel and paid a service fee at reception. The applicant paid for the complainant’s ‘deluxe package’ — a suite of sexual services including vaginal penetration of the complainant with a condom, oral sex and digital penetration of the complainant. The brothel was a strict ‘safe-sex’ establishment and clients were required to wear condoms. The complainant lay on a bed and the applicant lay naked on top of her. The applicant consensually penetrated the complainant with his fingers and mouth. Consensual pre-penile-penetration took place for perhaps 30 minutes.
The complainant’s account
The allegations in dispute at trial were as follows. The complainant stated that upon feeling the applicant’s erect penis getting close to her vagina she told him to put a condom on; the applicant said ‘not yet’ and continued to place his hand on the complainant’s vagina. She felt pressure on the opening of her vagina. At this stage the applicant’s left hand was next to her hand and his right hand was cupping her breast. She made a noise like ‘ah’ and tried to move the applicant off her body. He yelled at her ‘it’s just my fingers’. As he said this he moved his right hand from her breast to around her neck. He was strangling her and kissing her with his tongue down her throat, causing her to cough and choke. He squeezed her neck to the point where she thought she was going to pass out. The applicant then penetrated her vagina with his unprotected penis. His bodyweight pushed her into the mattress. At no stage did he put a condom on. The complainant estimated that penetration went on for 5 to10 minutes. She used her leg and knee to push the applicant off her and screamed at him that the booking was cancelled, pressed the intercom and yelled to reception that the applicant was coming out. She was distressed and complained to fellow workers.
The applicant’s account
In his police interview the applicant stated that he made a booking with ‘Zoe’ and that everything was going fine until the complainant jumped up and said ‘stop’. For the preceding 10 or 15 minutes he had been rubbing his erect penis against the complainant’s vagina and she did not have any issue with this. The applicant stated to police that he stopped and the complainant said ‘get dressed, I’m calling a stop to this’. The applicant further stated that he was a bit annoyed and did not understand what he had done wrong. She told him to put his clothes on and that the booking was cancelled. The complainant told reception she could not stay in the room any longer then she left the room. The applicant said he got dressed and stayed in the room for a little while, and then left. At no stage did he have a conversation with the complainant at the commencement of the booking about boundaries and she did not offer him a condom. He admitted that he knew of the brothel’s requirement that condoms be worn and that he had seen signage to that effect. He denied the complainant’s version of events; he denied putting a hand around her throat as to cause her to gag, and he said he did not penetrate her vagina with his penis at any stage nor did he ejaculate at any stage.
Witnesses described the complainant’s demeanour immediately after she left the booking room as variously distraught, hysterical, very, very upset, crying and sobbing. Additionally the complainant and other witnesses gave evidence of the complainant’s accounts of what had occurred — all these accounts were given in the very short time after the impugned incident.
Other post-event facts are undisputed. The complainant underwent a forensic examination that same night conducted by Dr Janine Rowse. Dr Rowse did not find bruising around the complainant’s neck. Dr Rowse referred the complainant to the Monash Medical Centre following her self-report of soreness and injury. The applicant was interviewed by police the following day. The complainant subsequently filed a WorkCover claim against the brothel as well as an application for Victims of Crime compensation. She was awarded $10,000 in Victims of Crime compensation in addition to the costs of counselling.
Ground 1
The jury’s verdict on each charge was unreasonable or cannot be supported having regard to the evidence
This ground is expressed in the language of s 276(1)(a) of the Criminal Procedure Act 2009. This section and similar provisions have received considerable curial scrutiny in recent years.[3] Courts have made the following observations:
•To succeed an appellant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his or her guilt of the offence charged.[4]
•In determining this question the court must make its own independent assessment of the evidence, giving full weight to the jury’s advantage in seeing and hearing the witnesses.[5]
•The jury is the ‘constitutional tribunal for deciding issues of fact’.[6] To set aside a jury verdict on the grounds that it is unreasonable is a ‘significant step’[7] and not to be taken without particular regard to the jury’s advantage in seeing and hearing the evidence.[8]
•In most cases a doubt experienced by an appellate court will be a doubt that the jury ought to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[9]
•In a case such as the present the court proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[10]
[3]M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (‘M’); Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (‘Baden-Clay’); Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (‘Pell’); Dansie v The Queen (2022) 403 ALR 221 [2022] HCA 25.
[4]M (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
[5]M (1994) 181 CLR 487, 525 (McHugh J); [1994] HCA 63.
[6]Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane, and Gordon JJ); [2016] HCA 35.
[7]Lindholm v The Queen [2022] VSCA 141, [14].
[8]Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
[9]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
[10]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
The applicant contended that a number of separate considerations in combination demonstrated that the verdict was both unreasonable and unsupported ‘having regard to the evidence’.
•When challenged in the police interview on 6 May 2019 about ‘strangling’ the complainant, the applicant stated that if, in fact, he had strangled her as she said there would be signs of physical injury.
•Medical evidence was that there were no objective signs of physical injury on 5 May 2019. The applicant’s counsel contended that, given the timing of the applicant’s interview, the only way he could know that there were no objective signs of strangulation would be because he knew the strangulation allegation was false.
•No ejaculate trace was detected in vaginal swabs, the complainant’s underwear or her robe.
•The applicant’s answers in the police interview, more generally, were internally consistent, and consistent with other evidence not related to the complainant’s specific allegations of rape and assault.
•The complainant’s evidence was inconsistent with other evidence in the case in several material respects. We shall analyse some of these asserted inconsistencies in the ‘Analysis’ section under this ground of appeal.
•The complainant’s account evolved as time went by. We shall also examine this assertion in the ‘Analysis’ section under this ground of appeal.
•It was ‘reasonably possible that the complainant experienced confusion which led to panic which led to extreme distress, which led to an evolving but untrue series of allegations. The prosecution case did not disprove that possibility…’[11]
•The prosecution case was inherently improbable. The prosecution did not dispute that the applicant had not pre-planned his offending given the openness of his dealings with the brothel. It follows that in these circumstances it is improbable that he would desist from committing an assault and rape only for the first 30 minutes of a pre-paid 60-minute booking, when he had contracted for various forms of consensual intercourse. It is further improbable that after participating in a violent rape he would then calmly leave the premises.
[11]Applicant’s written case, para [9.6].
The respondent submitted that it was open to the jury to convict on both charges. The medical opinion of Dr Rowse was that there was general medical recognition that a lack of visible injury to the throat region did not necessarily mean that strangulation did not occur. The respondent submitted that the absence of bruising in the throat region was unremarkable. Further, as to the absence of ejaculate, it was never the prosecution case that the applicant had ejaculated — penetration does not necessarily involve ejaculation. The medical evidence was thus neutral. It neither supported or undermined the prosecution case. Any inconsistencies in the evidence were to be expected in a case that involved short traumatic events that were the subject of repeated questioning in various contexts.
Analysis
Ground 1
The starting point of this analysis is that, by its verdict, the jury must have accepted that the complainant was a credible and reliable witness, and we must proceed on that basis. From that point we must examine the record ‘to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’ we are satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[12]
[12]Pell (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
This was, it seems, a routine engagement in the complainant’s working life. The terms of the agreement between the applicant and the complainant were spelt out with clarity — penile penetration of the vagina, only if the complainant was wearing a condom; oral sex but no anal sex; digital penetration permitted; 60 minute session. On the applicant’s account there was no unusual event that caused the complainant to terminate the session 30 minutes early. Both parties were rubbing their genitals together but there was no penetration when the complainant suddenly terminated the booking in the manner described.
The complainant’s account that the applicant commenced strangling her with one hand so that ‘everything was getting … black and speckly’ and that then she felt his erect unprotected penis enter her vagina is, we consider, not inherently improbable. Only moments before, it is undisputed that the applicant’s unprotected penis was erect and he was rubbing it against her vagina. Further her account, in our view, derived significant support from other witnesses’ evidence about events immediately after she left the room.
(a)CC, brothel manager, stated that the complainant came out of Room 5, was quite distraught, and told her that the applicant had unprotected sex with her. She was crying uncontrollably at this stage.
(b)KM, sex worker, stated that the complainant was hysterical, lying on the bed with her and trying to explain what happened.
(c)EB, sex worker, stated that the complainant was very, very upset. Her face was red and she’d been crying. She was having trouble speaking.
(d)DQ, sex worker, stated that the complainant was crying and was hysterical, sobbing, and difficult to understand.
(e)MA, brothel manager, said the complainant sounded frantic and distraught through the intercom — she was ‘basically hysterical’.
As we have said we consider that there is nothing inherently improbable in the complainant’s account and it derives independent support from the above circumstantial evidence of distress.[13]
[13]R. v Redpath (1962) 46 Cr. App R 316; R v Flannery [1969] VR 586; R v Sailor [1994] 2 Qd R 342; [1994] QCA 23; R v Tubou [2001] NSWCCA 243; R v Mathe [2003] VSCA 165.
The complainant’s evidence also derived support from the complaint witnesses. We shall examine this evidence in a little more detail later in these reasons, however it is sufficient to say that the evidence of complaint was proximate to the alleged offending and broadly consistent with the complainant’s evidence. It was open to the jury to use this complaint evidence as evidence of the truth of the facts asserted in the complaint and/or in assisting the jury to evaluate the complainant’s reliability as a witness.[14]
[14]See ss 60 and 66(2) of the Evidence Act 2008.
We have observed that the applicant pointed to a number of asserted inconsistencies and irregularities in the evidence which it contended must have caused the jury to entertain a reasonable doubt. We have concluded that the totality of these asserted inconsistences and supposed irregularities falls short of undermining the prosecution case so as to compel a reasonable doubt. In particular we have concluded that:
(a)There is nothing in the applicant’s submission that the lack of evidence of semen in the swabs is evidence that cuts across the respondent’s case. It was never the respondent’s case that the applicant ejaculated in or on the complainant. Whilst the complainant said to KM that she thought the applicant may have ejaculated inside her, during cross-examination KM said the complainant was not sure on this issue, she did not know whether lube or semen was running down her leg. The complainant was also unsure about this when speaking to Dr Rowse. We consider the evidence of lack of ejaculate to be essentially neutral — neither supporting or undermining penile/vaginal penetration.
(b)Similarly we consider that the lack of visible bruising in the neck region does not undermine the complainant’s account of strangulation. Dr Rowse, a forensic physician and a Fellow of the Faculty of Clinical Forensic Medicine, stated in evidence that it was ‘generally recognised that the absence of visible injuries to the neck doesn’t mean that there hasn’t been strangulation occur[ing]’. The jury was entitled to accept this evidence in preference to the applicant’s inexpert assertion[15] that if he had strangled the complainant in the manner suggested you would expect to see bruises.
[15]In his record of interview.
(c)The fact that the applicant in his interview appeared to know that the complainant had no bruising is a factor the jury could use, if it chose, to support his account that he did not strangle the complainant, however it will be recalled that he was present with the complainant for a short time after the alleged offending.
(d)The applicant’s account in his record of interview materially departed from the other evidence in the case only after they entered the private room. Much of the applicant’s account, particularly before they entered the private room, is supported by other evidence. However, on the critical events that were said to constitute the offences, there is no independent external support for the applicant’s account. It was open to the jury on all the evidence to reject that account.
(e)To the extent that the complainant may have been mistaken on certain matters of detail such as
§who it was who first notified her that the applicant had engaged her services,
§whether she saw MA go into the private room after the applicant left the room, or whether she just assumed it,
§whether she was strangled with one hand or two,
§whether she slapped the applicant during the alleged offending,
§whether her anus was digitally penetrated, or ‘not fully penetrated’ as recorded in Dr Rowse’s history taken from the complainant, or not penetrated at all, as stated by the complainant in her evidence at trial,
we are of the view that these inconsistencies are inconsequential.
The applicant relied on other asserted inconsistencies which were either between accounts given by the complainant, or in conflict with evidence given by third parties.
In evidence, the complainant said that immediately after she left the private room she spoke to MA and said to her ‘he tried to kill me … and he was inside of me without a condom’. Other evidence in the case suggested that she spoke to CC, not MA, at that time. CC’s evidence was that the complainant told her that the client held her down and had unprotected sex with her. The applicant submitted that the first time the complainant made any reference to saying the applicant tried to kill her was in her trial evidence. The respondent relied upon the complainant’s later clarification about this ‘I don’t know whether I said choke, strangle, kill. I don’t remember the exact word’. Again, if this is a true inconsistency, we consider it to be of no consequence.
The applicant, at trial, and before this court contended that the complainant’s account ‘evolved’. We have examined the record, in particular the evidence of the complainant, KM, MA, EB and DQ. It is correct that the complainant’s account became more expansive over time, however the core allegations, in our view, remained consistent throughout. The applicant took her by the throat and against her will, inserted his unprotected penis into her vagina. We accept that around these core allegations there was some inconsistency in the evidence, however in our view that is explicable in the aftermath of a traumatic event where initial stress laden complaints ultimately are replaced by calmer responses to forensically crafted questioning. It is only natural that when later statements are compared with earlier ones there will be some variation. The jury, who were in a much better position than this Court to evaluate these inconsistencies or inaccuracies, resolved them in favour of the complainant.
Further the applicant’s contention that ‘it was reasonably possible that the complainant experienced confusion which led to panic which led to extreme distress which led to an evolving but untrue series of allegations’ is a contention that was rejected by the jury. It was also not put to the complainant in cross-examination. The jury was entitled to reject this hypothesis.
We return to where this analysis started. In conducting this independent evaluation we have proceeded on the basis that the jury must have accepted that the complainant was a credible and reliable witness. There is nothing in the record by way of inconsistences, discrepancies or inadequacies that ought to have compelled the jury to have a reasonable doubt.
We will grant leave to appeal on ground 1, however this ground must be rejected.
Proposed ground 2
The substance of this proposed ground is that the trial prosecutor invited the jury to engage in incriminating conduct reasoning in considering the guilt of the accused, when no incriminating conduct notice had been filed, and no determination had been made by the trial judge that the relevant evidence was reasonably capable of being viewed by the jury as evidence of incriminating conduct. This irregularity, it was submitted, was compounded by the judge’s failure to give any direction about such reasoning.
The impugned invitation is said to be found in a larger passage in the prosecutor’s final address in which she argued that the applicant’s police interview account was demonstrably false. For context it is necessary to set out the entire passage. The impugned sentences are in bold.
In terms of what he actually says, the content of what he says in the interview, firstly the prosecution suggests is completely implausible that there was no discussion at all about what sexual services were going to be provided in that room. For one, he’d paid for extras, so he’d have to know what that was on top of and also he’s been there before and especially implausible that there would’ve been no mention of condoms, given it’s a safe sex establishment, not just the evidence of the complainant who said she did have that discussion.
Secondly, the prosecution says Mr Pompei's version of how the booking came to be cancelled is just completely unrealistic. So he said he’d paid for a 60 minute booking for $220 and that he’d paid $30 for kissing and oral and they both agreed that’s true. He said they were having a good time, there’d been kissing, there’d been fingering, there’d been oral sex on her as agreed. This is the $30 extra that he paid for, the kissing and the performing oral sex. Now, at the time [the complainant] stopped the booking, he said he was lying on top of her, rubbing himself on her with an erection. She had her arms above her head, she was calm, she was enjoying herself. They had not yet had the sexual intercourse that he paid $220 for. There’d not been any oral sex on him also which he’d paid for as part of the standard service and Mr Pompei says all of a sudden, she stopped for no reason apparent to him as nothing had changed.
He said she’d given him no indication anything was wrong. She just jumped up and said stop, so he stopped and she said, ‘Get dressed, I’m calling a stop to this, the booking is cancelled,’ and she hit the intercom. So at this time, he’s received what he paid $30 for, which is the oral sex on her and the kissing. But he’s not received what he’s paid the $220 which is the sexual intercourse or any oral sex on him. So what did he do in this circumstance, according to him? Nothing. Did he ask her what was wrong, is there anything wrong? No. Did he apologise, just in case he’d done something to cause her to stop? No. Did he ask her if he did anything wrong so he’d know for next time? No. Did he make any complaint to the manager that Zoe had just jumped up and left halfway through his booking, that he did not get his full one hour? No. Did he make a complaint to the manager on the way out that he’d paid $250 and not received the full service paid for? No. Did he ask for any refund for services paid for and not provided? No. Did he say anything to the manager about being concerned why Zoe had run out of the room suddenly for no apparent reasons? No.
You might expect, members of the jury, he would’ve done one or more of these in such a circumstance. But no, he left without saying a word, not to Zoe herself or [the complainant] and not to the manager, [CC], he just walked straight out and left.
I just want to raise at this point, it was raised by defence at some point, I think maybe with [the complainant] and [CC] that no one went into Room 5 to where Mr Pompei was and that’s correct. The evidence from [MA] and [CC] appears to be they’re asking Zoe about whether she wants to call the police or not and then they were going to call the police. So it was going to be a police issue to deal with once [the complainant] agreed.
[CC] said she wasn’t going to let him out but when he walked through, he knew where the buzzer was and he buzzed himself out to get out the door. [CC] says she was sitting at the reception and Mr Pompei didn’t look at her as he walked through. He was looking straight at the door. She said that she asked him ‘What are you doing mate?’ He said ‘Nothing.’ And buzzed himself out. So no talk about this strange thing that had happened then, and yes, he did walk, he didn’t run as I think [EB] suggested from seeing the CCTV. But the evidence is he did go straight for the door, he didn’t stop to talk to the manager or anyone else.
The accused man, Mr Pompei, says in his interview that he heard [CC] say something about calling the police. The police are on their way. Now upon hearing that, did he stop and say to [CC], ‘Why are you calling the police?’ No. Or ‘Why would you call the police, I didn’t do anything.’ No. He just kept walking, buzzed himself out without asking to be let out and then he got in his ute and drove away. In his interview, he says at that point, he was still confused.
I suggest on behalf of the prosecution, members of the jury, that the reason why he left without talking to anyone and walked straight out, halfway through the booking he’d paid for was because he knew he had assaulted [the complainant] and he wasn’t hanging around.
In his interview, he says he was confused and annoyed when she stopped for no reason but he respected her direction to stop and then he left without a fuss and I suggest, members of the jury, based on what I’ve just said that that is completely implausible. It’s just not plausible or realistic that nothing happened in Room 5 and then [the complainant] hits the intercom, sounding panicked, immediately goes out and tells others that he’s held her down and strangled her and penetrated her vagina with his penis, that she’s been observed to be crying uncontrollably, hysterical, distraught, that the accused man walks out without saying a word to anyone, despite not getting what he paid for $220 and then doesn’t say a word when the manager says the police have been called and the prosecution says you can reject his account that the booking stopped for no reason completely and you put that to the side and you look at the rest of the prosecution evidence.
It is common ground on the application that, in all other respects, the prosecutor’s final address was well crafted and persuasive.
Senior Counsel for the applicant submitted orally that the impugned passage was couched in the language of incriminating conduct, in the sense that it constituted a contention that the applicant left the premises without talking to anyone because he knew he had sexually assaulted the complainant. He further submitted that there is no other sensible interpretation to be placed on this part of the prosecutor’s final address, notwithstanding its wider context. Assuming that to be the case then the safeguards that are required to permit such reasoning[16] were simply ignored or overlooked. This constituted:
(a)A serious departure from the prescribed processes for trial; or
(b)An irregularity or error in the trial and this court cannot be satisfied that absent the irregularity, convictions on the charges were inevitable.[17]
[16]As provided in the Jury Directions Act 2015 ss 20 and 21.
[17]Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan Kiefel and Bell JJ); [2012] HCA 59 (‘Baini’).
Senior Counsel for the respondent in oral and subsequent written submissions[18] contended that leave to add the ground ought be refused as it is without substance:
(a)The prosecution did not rely on the impugned evidence as evidence of incriminating conduct; rather it was relied upon, to rebut as implausible, the applicant’s account in his police interview as to his shock, annoyance and confusion at the time of his departure from the brothel.
(b)Counsel acting for the applicant did not seek an incriminating conduct direction and there were no ‘substantial and compelling’[19] reasons for giving such a direction.
(c)A judicial direction to this effect would have been inimical to the defence case as the applicant’s counsel in his final address had relied upon the circumstances of his departure as being positively consistent with this innocence.
(d)In the alternative, if the court is satisfied that the prosecution did rely on evidence of conduct as incriminating conduct then an error or irregularity did not result in a miscarriage of justice. It was not a fundamental error, nor did it have the capacity to affect the result of the trial.
(e)Support can be found in Awad,[20] for the application of the ‘capacity to affect the result’ test in an appropriate case when one looks at the joint judgment of Gordon and Edelman JJ (in the majority) and the judgment Steward J (in the minority), on this issue. In the present case, the ‘capacity to affect the result of the trial test’ is to be preferred over the ‘inevitable conviction’ test.
(f)However, even if an inevitable conviction test is applied, the conviction of the applicant was inevitable because, in particular, any incriminating conduct direction, if given, would have been prejudicial to the defence case.
[18]Invited by the Court given the late notice of the applicant’s proposed additional ground.
[19]See s 16 of the Jury Directions Act.
[20]Awad v The Queen; Tambakakis v The Queen (2022) 405 ALR 589; [2022] HCA 36.
Discussion
Did the prosecutor rely on incriminating conduct type reasoning?
It will be recalled that the proposed ground asserts:
(1)That the prosecutor relied on incriminating conduct type reasoning; and
(2)No incriminating conduct notice had been served or filed; and
(3)No determination had been made by the judge as to whether the evidence was reasonably capable of being viewed as evidence of incriminating conduct; and
(4)No direction was given to the jury about such reasoning.
These requirements are to be found in the Jury Directions Act (the ‘JDA’). We shall set out briefly the scheme of the relevant legislation of Part 4:
(1)Incriminating conduct means conduct that amounts to an implied admission by the accused of having committed the offence charged or an element thereof.[21]
(2)The prosecution must give a notice of intention to rely on evidence of incriminating conduct at least 28 days before the trial is listed to commence.[22] The judge may dispense with notice requirements if the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct and it is in the interests of justice to dispense with those requirements.[23]
(3)The prosecution must not rely on evidence of conduct as incriminating conduct unless the s 19 notice has been given, and the trial judge determines on the basis of all the evidence, that the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.[24]
(4)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury on the way in which they may use that evidence.[25] This direction is spelt out in s 21(1)(a) and (b). It is unnecessary to set it out here, other than to note that Parliament has used mandatory language in this provision and the section is headed ‘Mandatory direction on the use of evidence of incriminating conduct’. We shall refer to this as the ‘mandatory direction’.
(5)A further additional optional direction on incriminating conduct is available upon request by defence counsel.[26]
[21]Section 18 of the JDA.
[22]Section 19 of the JDA.
[23]Section 19(3)(b) and (c) of the JDA.
[24]Section 20(1)(a) and (b) of the JDA.
[25]Section 21(1) (a) and (b) of the JDA.
[26]Section 22 of the JDA.
In Lowe v the Queen[27] this court examined the meaning of the words ‘rely’ and ‘relies’ in the context of Part 6 of the Jury Directions Act 2013 (Vic), the predecessor Act to the JDA. For present purposes there is no material distinction to be drawn between the current Part 4 of the JDA and its earlier iteration.
[27](2015) 48 VR 351; [2015] VSCA 327 (‘Lowe’).
In Lowe the applicant was charged with murder. He was alleged to be part of a joint criminal enterprise to commit that offence. Initially the prosecution sought to rely on post-offence conduct as evidence of incriminating conduct and thus, as an implied admission of guilt, and a notice of incriminating conduct was filed to this effect. During the trial it became apparent that the relevant post-offence conduct was, in reality, being relied upon as a piece of circumstantial evidence in support of the existence of the applicant’s participation in the joint criminal enterprise, and not as a post-offence implied admission of guilt. Against that background, on appeal to this court, Lowe contended that the judge’s failure to give the jury the mandatory direction constituted a miscarriage of justice.
The majority (Redlich JA and Robson AJA) held that, on a proper construction of Part 6 of the earlier Act, in order for the need to arise for a mandatory direction ‘it is necessary that the Crown explicitly rely upon evidence of conduct (including the type of conduct at issue here) as evidence of incriminating conduct — that is, as evidence that amounts to an implied admission. If the Crown does not explicitly rely upon the evidence in order to have the jury infer that the impugned conduct constitutes an implied admission, no direction is required pursuant to s 25’.[28] Warren CJ considered that as a matter of statutory construction, the legislature intended the reliance to be explicit, and the word ‘explicit’ ought to be read into s 25 to give effect to that unmistakeable legislative intent.
[28]Lowe v The Queen (2015) 48 VR 351, 388 [136] (Redlich JA and Robson AJA); [2015] VSCA 327.
In the present case the respondent contends that the impugned passage was relied upon ‘to rebut as implausible the applicant’s account in his record of interview that he was confused and annoyed when he left the [brothel]’. It is clear that the wider context of the prosecutor’s address, the relevant part of which we have set out in full, was directed at this rebuttal. It follows, the respondent contends that there was no need for a mandatory direction because there was no explicit reliance on tendency reasoning.
Having said that the impugned passage was expressed in quite unambiguous terms, we shall set it out again.
I suggest on behalf of the prosecution, members of the jury, that the reason why he left without talking to anyone and walked straight out, halfway through the booking he’d paid for was because he knew he had assaulted [the complainant] and he wasn’t hanging around.
This is the language of incriminating conduct. It contains an assertion that the applicant impliedly admitted his guilt by ‘walking straight out’. Notwithstanding the context in which the passage occurred, its plain terms were quintessentially expressed as incriminating conduct reasoning. It is as clear an invitation to infer the guilt of the applicant from his post-offence conduct as can be imagined. Surprisingly, in our view, defence counsel did not complain about the impugned passage nor did he complain about the absence of statutory compliance — there was no incriminating conduct notice, no judicial ruling on the capacity of the evidence to prove an implied admission, and subsequently no mandatory directions. Whether counsel’s omissions were strategic or by oversight is not clear to us.
If the impugned words amount to ‘explicit reliance’ there was a plain failure to comply with Part 4 of the JDA. On any view, the absence of such compliance, in particular the absence of any judicial direction under s 21 of the Act would, at the least, constitute an error or irregularity in or in relation to the trial.[29]
[29]Baini (2012) 246 CLR 469; [2012] HCA 59.
If the impugned words amount to something less than ‘explicit reliance’ (which we doubt) the point remains that the impugned passage in the prosecutor’s address constituted a stark invitation to the jury to engage in incriminating conduct reasoning in circumstances where there is no compliance with Part 4 of the JDA. We consider that the risk of the jury engaging in such impermissible and inappropriate reasoning, in the absence of appropriate direction, was quite substantial.
The directions that are specified in ss 21 and 22 of the JDA are, in large measure, a rationalisation and simplification of directions which are the subject of a number of appellate authorities. The directions are required because of the risk that, without proper instruction, the jury might engage in reasoning which is both invalid and unfair to the accused. In the absence of any such direction in this case, as we have said, there was, in our view, a material risk that the jury could have misused the submission, made by the prosecutor, without applying the important principles that are incorporated in ss 21 and 22 of the JDA.
While there is some force in the respondent’s arguments that the parties’ and the judge’s lack of response to the impugned passage evidences its insignificance in the overall context of the trial, this is a reflection of their own perceptions and says little about whether the jury accepted the invitation to reason from asserted incriminating conduct or not. After some reflection, we consider the impugned invitation to constitute an error or irregularity in the trial regardless of whether it was the object of ‘explicit reliance’. The invitation to infer guilt from incriminating conduct reasoning was sufficiently direct as to demand this conclusion — ‘he knew he had assaulted her and he wasn’t hanging around’. Put another way we are unable to be satisfied that the prosecutor’s invitation was either rejected or not processed by the jury.
This is an appeal brought under s 276(1) of the CPA. This court is obliged to allow an appeal against conviction if the applicant satisfies the court that:
(a)The verdict is unreasonable or cannot be supported having regard to the evidence; or
(b)As a result of an error or an irregularity in, or in relation to the trial, there has been a substantial miscarriage of justice; or
(c)For any other reason there has been a substantial miscarriage of justice.
There has been no exhaustive description of what can constitute a ‘substantial miscarriage of justice’ for the purpose of s 276 as the phrase embraces events and conduct that are too numerous and too different to permit prescription of a singular test.[30] In Baini, the High Court identified three types of miscarriages which may arise:
(a)Where the jury has arrived at a verdict that cannot be supported.[31]
(b)‘[T]he case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial.’[32]
(c)‘[T]he case where there has been serious departure from the prescribed processes for trial.’[33]
[30]Baini (2012) 245 CLR 469; [2012] HCA 59.
[31]Baini (2012) 245 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
[32]Ibid.
[33]Ibid.
We have concluded at [44] that the impugned invitation constituted an irregularity in the trial. In Baini, the passage from the majority judgment that we have quoted at [46(b)] above concludes that a substantial miscarriage of justice will have occurred where the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Elsewhere in Baini it seems that this test is used interchangeably with what appears to be a subtly different test. Where there has been an irregularity in the trial ‘if the appellant court concludes from its review that conviction was inevitable’[34] then what occurred will not amount to a substantial miscarriage of justice. Indeed the majority having determined an irregularity occurred in the trial, remitted the question to the appellate court to determine whether from ‘its review of the record that conviction was inevitable’.
[34]Baini (2012) 245 CLR 469, 482 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
It is unnecessary to discuss this distinction further as in this case however the test is formulated, it must be answered favourably to the applicant. For the reasons we have expressed, absent the impugned submission, we are not satisfied that the applicant’s convictions were inevitable. Further, and for the same reasons, we are not satisfied that the impugned submission made no difference to the outcome of the trial.
We will grant leave to add ground 2, grant leave to appeal and allow the appeal under this ground. We will order that the matter be remitted to the County Court for retrial.
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