R v Bertrand

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 271 of 2007

THE QUEEN
	v
CRAIG BERTRAND

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JUDGES:	VINCENT, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2008
DATE OF JUDGMENT:	19 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 182

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Criminal Law – Conviction and sentence – Rape – Whether applicant’s record of interview should have been excluded as involuntary because of implied threat allegedly made by police officer – Whether trial judge should have held voir dire where no such request made by counsel – Whether trial judge failed to relate law to facts of case – Application dismissed in relation to conviction – Whether non-parole period too long in relation to head sentence – Trial judge should have provided reasons for imposing longer than usual non-parole period – Application allowed in relation to sentence

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Solicitor for Public Prosecutions
For the Applicant	Mr S Gillespie-Jones	Paul Vale Criminal Law

VINCENT JA:
REDLICH JA:
WEINBERG JA:

The applicant, Craig Bertrand, was convicted on 13 July 2007 in the County Court at Melbourne of one count of rape. He was acquitted of one count of indecent assault. On 22 August 2007, after a plea in mitigation, he was sentenced to five years and six months’ imprisonment with a non-parole period of four years. He now seeks leave to appeal against conviction and sentence.

The events surrounding this offence occurred in the early hours of Sunday 9 October 2005. The complainant, Ms Y, was aged about 50 at the relevant time. She had first met the applicant in August that year at a hotel in Frankston. Over the next two months, they began seeing each other and commenced a sexual relationship.

On Saturday 8 October 2005, the complainant spoke to the applicant by telephone. She said she would come to his house that night to play pool and to have a few drinks. She arrived at about 7.45 pm and parked behind his car, which was in the carport. She had not by that stage had dinner. She was wearing a long black dress, cardigan, and sandals. At one point during the evening, she removed her underpants because she said they felt uncomfortable.

The complainant said that over the next few hours the two of them drank, played pool, listened to music and danced. She believed that she drank about three cans of light beer and perhaps three cans of full-strength beer. She said that although she was affected by alcohol, she was not drunk. She was quite able to walk and to communicate clearly.

At one point, the applicant filmed her dancing to music while stripping off some clothing. A videotape of the dance was played to the jury.

It was common ground that some time later the complainant put her clothes back on and they resumed dancing together. At that stage, the applicant said to her: ‘I have a phone number to call somebody if you would like a threesome.’ She replied: ‘No, I don’t like that sort of thing. I’m going home. I want to go home.’ She said that she was shocked at what he had suggested. ‘I didn’t think he was like that. I felt physically ill and I just wanted to go home.’[

The complainant said that until the applicant suggested the threesome the two of them had had a good relationship. ‘We had a lot of fun together.’ She said that she did not know what her expectations were regarding the relationship but that it was ‘nothing permanent, just a day to day, week to week, friends having fun’.

She said that after the applicant made his suggestion, she got her keys and handbag and went out to her car. However, she was followed by the applicant who persuaded her to go back inside. He told her that he was sorry for what he had said. She said that he took the keys off her at the car and she did not know what he did with them when he returned to the house.

The complainant then described how, after she returned to the house, they both had another drink and she began to feel unwell. She told the applicant that she was feeling sick and he went and fetched a bucket. While he was doing that, she lay down on her stomach on the couch. She was then sick into the bucket quite a few times. According to Ms Y, she then noticed that the applicant was naked. She said that he came and knelt down beside her and attempted to put his penis into her mouth. She felt it touch the side of her face. She told him to go away which, according to her, he did.

We interpolate that the applicant was charged with indecent assault in relation to this incident. However, as previously indicated, the jury acquitted him on this count.

The complainant said that the applicant then pushed her dress up to her waist, pinned her down, and put his legs between hers. She said that she told him to ‘get off’. However, she felt him push his penis into her vagina. She said that she told him to ‘stop’, that she did not feel like it, and that she was sick.

According to the complainant, the applicant ignored her protests. He said to her ‘shut up, you’ll like it. You’ll enjoy it.’ She said that his voice was abrupt, and that she was frightened by his manner. Her evidence was: ‘I told him it was hurting and he still wouldn’t stop. My vagina was hurting and the weight on my back, but he kept going and it seemed like it was for ages before he stopped, and he ejaculated into my vagina. I was feeling physically and mentally ill at what he was doing. I was crying.’

Afterwards, the applicant fell asleep at her feet near the end of the couch. She looked for her car keys but could not find them so, grabbing her cardigan and hand bag, she decided to walk to the house of a friend. She said that she arrived at the friend’s house some time between 2.30 and 3 am. She told her friend that she had been raped.

A short time later, the complainant’s friend took her to the Frankston Police Station where she made a formal complaint to the police. She made a statement later that day and also gave an account of the alleged rape to Dr Edward Morgan, the examining doctor at the Monash Medical Centre.

The complainant’s friend testified that they had known each other for many years. She was aware that the complainant had been seeing a man for about eight weeks. She said that the complainant had arrived at her home in the early hours of the morning, that she had come into her house, and kept repeating that she had been raped. She had taken the complainant to the police station.

Police officers gave evidence of the complainant’s attendance at the police station. Senior Constable Amanda Lewar told how she had been instructed to obtain the basic details from her. Thereafter Acting Sergeant Paul Marshall took over. He gave evidence of how the complainant had told him that she had been raped by the applicant. He had then notified the Sexual Offence and Child Exploitation Unit, and also arranged for her friend to make a statement.

Detective Senior Constable Peter Morris was responsible for the conduct of the investigation. His evidence was that at about 1.20 pm on 9 October 2005, he attended at the applicant’s home. He said that he first met the applicant in his carport and had informed him of his legal rights. He agreed, under cross-examination, that, after having had his rights read to him, the applicant said: ‘I’ll give you DNA right now.’

Detective Morris then asked if he could search the applicant’s home. He asked for, and was given, Ms Y’s car keys. He then drove the applicant to the Frankston Police Station where the applicant was formally interviewed.

Detective Morris was cross-examined at some length about his conduct of the interview. As the admissibility of this record of interview forms the basis of ground one of this application, it is necessary to set out a number of the questions and answers contained therein.

After informing the applicant of his rights, including his right to silence and his right to communicate with a friend or relative or legal practitioner, Detective Morris ascertained that the applicant understood what had been said. The record of interview then continued:

Q        Do you wish to exercise any of these rights before we proceed with this interview?
A        I’m not sure if I should say anything, actually. I don’t really know, ‘cos it – it probably is pretty serious.
Q        Well, it’s a serious allegation of rape ---?
A        Yep. If I don’t say anything today, are youse gonna lock me up or will I still get to go home today?
Q        Well, if you say ‘no comment,’ I will have to seek advice from my superiors ---?
A        Mm’m.
Q        And they may determine that, with a no comment interview, that you – you – it’s your right. I can’t advise you one way or the other. I can’t tell you whether you’re gonna get charged ---?
A        Yeah.
Q        Today or not. All I can advise you is that you have the right to say nothing if you wish to do so, or you can comment on the allegations I’m about to put to you. I’m happy to suspend this to try and find someone this - on a Sunday to – for - to give you a legal opinion. It’s up to you.
A        Oh – oh, no, I’ll – I’ll take to …. …. ---
Q        Well, it’s up t-, totally up to you and I don’t want to influence you in any way. I’m happy to get you legal advice if you – if you – if you so wish. Do you agree that you’ve spoken already to Robyn Easton?
A        Yes.
Q        And she is ---?
A        My sister.
Q        Alright. And that was in relation to the welfare of your daughter. Is that right?
A        That’s right.
Q        You did that in the police car?
A        That’s right.
Q        Okay. Are you happy to go on at the moment with this interview?
A        No, I’m probably not. I dunno. Look, I - I’ll ---
Q        Probably not? Would you like me to suspend it while we try and get---?
A        Yes, please.
Q        Some – some ---?
A        Yeah.
Q        Legal advice?
A        Please.

The applicant was then permitted to contact a legal practitioner in order to obtain legal advice.

The record of interview then continued. Detective Morris again informed the applicant of his rights. Detective Morris then squarely put to the applicant the complainant’s allegations of indecent assault and rape. He did so in some detail, apparently working from the statement taken from Ms Y earlier that day. Put simply, the applicant denied having had any sexual contact whatsoever with the complainant on the night in question. He claimed that her allegations against him were entirely fabricated.

At the very outset of the trial, counsel for the applicant sought to have the record of interview excluded. He did not ask the trial judge to conduct a voir dire prior to ruling on its admissibility. He relied instead upon the transcript of the interview, which, he submitted, showed that the answers the applicant gave to the questions put to him were involuntary. The trial judge rejected that submission.

It should be noted that it was later suggested to Detective Morris in cross- examination that he had threatened the applicant with being ‘locked up’ if he were to say nothing in answer to the questions being put. It was suggested that this ‘threat’ arose ‘implicitly’ from Detective Morris’s response, in answer to the question posed by the applicant, that he would have to seek advice from his superiors as to what the police would do if the applicant did not answer their questions.

Detective Morris denied having threatened the applicant. He said that he had not raised his voice at any time, and maintained that the interview had been conducted with scrupulous fairness. He said that he had been careful to advise the applicant that he was entitled to ask for a solicitor to be contacted. Once a solicitor had been contacted, the applicant was permitted to obtain advice from him by phone, in private. The applicant had then elected to continue with the interview.

According to what the applicant said in his record of interview, the complainant’s account of having left the house after he mentioned the possibility of a threesome was entirely untrue. He conceded that they had quarrelled but said that he had no recollection of having taken her car keys. He said that they had ‘sort of made up again, but then she kept going on about the same thing and after that was when I said, “Just fuck off”…’

In relation to the allegation of indecent assault, the applicant said: ‘I can’t think why I’d even think about doing that if she was being sick.’ He denied the alleged rape just as firmly, saying: ‘I have no idea of any of this, I know nothing about this, I don’t recall any of it.’ When asked whether he was still saying that he had not had intercourse with the complainant, he answered: ‘As far as I know, she left and I went to bed.’

The applicant’s evidence at trial could hardly have differed more from the account that he gave the police. He was, of course, by that stage, confronted with the fact that DNA evidence had been led, which clearly demonstrated that sexual intercourse had indeed taken place. He told the jury that he had panicked during the course of the interview and implied that this explained why he had lied about having had intercourse with the complainant.

The applicant then went further. He told the jury that he had not initially wanted to answer any questions put to him by the police. However, because of Detective Morris’s statement to him about having to consult his superiors, he believed that he would be detained if he refused to answer questions. He added that he had not at first had any recollection of having had sexual intercourse with the complainant. However, as the interview proceeded, his memory began to improve. The reason he continued to deny having had intercourse was because he believed that any change of story would lead to his being refused bail.

The applicant then openly acknowledged that he had in fact had sexual intercourse with the complainant. He claimed, however, that this was entirely consensual. He denied that she had told him to stop or that she had indicated in any way that she did not want to have sex with him. He emphatically denied having told her to ‘shut up’ or having said to her that she would ‘enjoy it’. He insisted that if the complainant had said or done anything to suggest that she was not consenting, he would not have gone ahead and had sex with her.

According to the applicant, he had been playing music throughout the entire evening. In that regard it should be noted that evidence was led from a neighbour to the effect that she had come to the house at about 1 am that morning, and complained about the level of the noise. The applicant said that he had turned down the volume in response to her complaint.

When asked about his hearing, the applicant said that he had at least a 30 per cent hearing loss. However, nothing further was made of this point.

The applicant denied the complainant’s assertion that he had stood naked before her. He said that when he was younger, he had had an operation and had lost one of his testicles. He said that he would not have stood naked in front of anyone.

The applicant also denied the complainant’s assertion that he had passed out on the couch after having had intercourse. He accepted that they had argued. However, he maintained that this related to his earlier proposal of a threesome and had nothing to do with any supposed rape. He said that after a time, he had told the complainant to ‘fuck off’, and that he did not want to see her again. Implicitly, he suggested that this may have explained why she had falsely accused him of rape.

Under cross-examination, the applicant said that he might have been ‘a bit tipsy’ on the night in question, but that he felt alright. He said that he had not been overly affected by alcohol. The same was true of the complainant. He said that sexual intercourse took place ‘maybe an hour and a half’ after the complainant had vomited, and not, as she claimed, at or about that time.

It is clear, therefore, that the trial was conducted upon the basis that, as a practical matter, the only issue that the jury had to determine was whether the Crown had established that sexual intercourse took place against the complainant’s will.

Conviction grounds

By notice of appeal filed on 5 February 2008, the applicant relied upon 11 grounds of appeal. We propose to deal with them in the order in which they are set out.

Ground One – The Record of Interview

This ground alleges seven separate errors on the part of the trial judge. It complains, inter alia, of the trial judge having failed to conduct a voir dire when considering whether the record of interview was voluntary, and of her having failed to hear the applicant upon the voir dire after he gave evidence of what was going through his mind during the course of the interview. More fundamentally, perhaps, it complains that the record of interview should have been excluded as involuntary.

Counsel who appeared for the applicant at the trial accepted that his client had lied repeatedly to Detective Morris in the record of interview when he denied having had sexual intercourse with the complainant on the night in question. The Crown, of course, relied upon these lies as evincing a consciousness of guilt.

As previously indicated, the trial judge was asked at the commencement of the trial to exclude the record of interview in its entirety. It was submitted that the applicant’s answers were involuntary and therefore inadmissible. Her Honour dealt with that submission summarily. She described it as ‘complete nonsense’.

The argument turned upon question seven, the applicant’s response to that question, and the further response elicited from Detective Morris.

It will be recalled that in the lead-up to that question, Detective Morris had informed the applicant of his legal rights and asked him whether he wished to exercise any of those rights. The applicant replied:

I’m not sure if I should say anything, actually. I don’t really know, ’cos it – it probably is pretty serious.

We have already set out questions seven to nine, but it is worth repeating them here. They read as follows:

Q        Well, it’s a serious allegation of rape … ?
A        Yep. If I don’t say anything today, are youse gonna lock me up or will I still get to go home today?
Detective Morris replied:
Q        Well, if you say “no comment”, I will have to seek advice from my superiors --- ?
A        Mm’m.
Q        And they may determine that, with a no comment interview, that you - you - it’s your right. I can’t advise you one way or the other. I can’t tell you whether you are going to get charged ---

The trial judge was invited to conclude that this exchange should be construed as amounting to a threat that the applicant would be kept in custody if he refused to answer questions. Plainly, her Honour did not detect any semblance of such a threat.

When the matter came before this Court, it was argued that her Honour was wrong in her assessment of what the transcript revealed. It was submitted that, on a fair reading, the transcript showed that the applicant had been threatened and that he had only answered questions because he believed that he would be detained if he did not do so.

Before turning to this ground in more detail, there is perhaps a preliminary point to be noted. The applicant made no admissions of guilt as such during the course of the interview. Rather, he told lies in an effort to exculpate himself. There is an ongoing debate in this country as to whether the common law rules as to voluntariness apply to exculpatory statements tendered as lies.[1] The position in England seems to be that the notion of a confession includes any inculpatory statement irrespective of whether it amounts to an admission of guilt as such.[2] It is unnecessary to enter that debate for the purposes of this appeal. We assume, for present purposes, that the common law rules governing the admissibility of confessions apply with equal force to lies tendered as consciousness of guilt.
[1]The New South Wales Court of Criminal Appeal has consistently held that where evidence of a lie told by the accused is adduced as consciousness of guilt, the evidence constitutes an admission within the meaning of the Evidence Act 1995 (NSW): R v Esposito (1998) 105 A Crim R 27 at 43-4 per Wood CJ at CL; R v Adam (1999) 106 A Crim R 510 at 517-523; R v Escho, R v Sako [2001] NSWCCA 415 at [129]-[130]; and R v Fernando [1999] NSWCCA 66. To the same effect is R v Horton (1998) 104 A Crim R 306, where it was held that the meaning of the term ‘admission’ in relation to New South Wales legislation that required tape recording of interviews was the same as that in the Evidence Act and therefore included both inculpatory statements and exculpatory lies. In R v G H (2000) 105 FCR 419, the Full Court of the Federal Court, sitting on appeal from the Supreme Court of the Australian Capital Territory, came to precisely the opposite conclusion. The approach taken by the Full Federal Court is supported by a decision of the Tasmanian Court of Criminal Appeal in Carr v R (2002) 11 Tas R 362.
[2]Customs and Excise Commissioners v Harz and Power [1967] 1 AC 760 at 818.

The issue then is whether Detective Morris’s response to the question posed by the applicant amounted to an implicit threat of the type alleged. We emphasise the word ‘implicit’. Clearly, there was no direct threat uttered.

In that regard, it has been suggested that in the early days of the development of the law of evidence, almost any inducement, no matter how trivial, if offered by a person in authority would result in the exclusion of confessional evidence. The older cases were perhaps influenced by the fact that punishment was harsh, and judges exercised a measure of compassion as a result.[3] Frequently, in order to spare a prisoner’s life, confessions were rejected for what later came to be seen as the most unconvincing of reasons.[4] For example, a police officer’s warning that anything that the accused said might later be used ‘against him’ was held to have been a threat. [5]
[3]DPP v Ping Lin [1976] AC 574 at 600 per Lord Hailsham.
[4]F Kaufman, The Admissibility of Confessions (3^rd ed, 1979) 187.
[5]R v Harris (1844) 1 Cox CC 106. Other examples of relatively trivial inducements rendering confessions involuntary are set out in David Ross, Ross On Crime (3rd ed, 2007) 276-7.

By the middle of the nineteenth century, it was accepted that any inducement in the nature of a promise or threat held out by a person in authority rendered a confession inadmissible. In R v Baldry,[6] Pollock CB reviewed the authorities. His Lordship observed that the law on this subject had become increasingly rigid. Various expressions of the mildest nature had been ‘tortured’ into meanings they ought never to have borne.[7]
[6](1852) 169 ER 568.
[7]Nonetheless, Lord Parker CJ was still able to say more than a century later that courts had been ‘at pains to hold that even the most gentle, if I may put it that way, threats or slight inducements will taint a confession’: R v Smith (1959) 43 Cr App R 121 at 126.

In DPP v Ping Lin,[8] the House of Lords recast the test of voluntariness, emphasising the need to apply it as a question of fact without copious citation of authorities turning on particular circumstances or forms of expression. It was denied that any impropriety need be proved on the part of the person in authority inducing the confession or that a subjective intent to procure a confession need be shown. The emphasis was upon common sense, recognising that the main reason for receiving a confession was that if made freely, it was very probably true.
[8][1976] AC 574.

The common law, as it has developed in Australia, has taken a less generous view than in England of the principle that a confession will be involuntary if produced by an inducement. However, it has taken a broader view of what can amount to involuntariness in its more general sense. [9]
[9]See generally, Cornelius v R (1936) 55 CLR 235, where Dixon, Evatt and McTiernan JJ pointed out that a promise of advantage and a threat of harm were not the only matters that might deprive a statement of its voluntary character. For instance, a confession which was extracted by violence or force, or some other form of actual coercion, was clearly involuntary and therefore inadmissible.

In Collins v R,[10] Brennan J stressed the importance of ensuring that a court, faced with an argument that a confession should be excluded as having been produced by inducement, did not tease out some fanciful meaning from, or attribute some extravagant effect to, what was said by a person in authority.
[10](1980) 31 ALR 257.

In Ping Lin, the House of Lords took what seemed to be a more robust view of what might amount to an inducement of a kind that would render a confession involuntary.[11] In that case, their Lordships held that a police officer’s statement, in answer to a question by the suspect, that assistance in tracing others involved in the supply of drugs would be taken into account when the suspect was sentenced, did not render the confession inadmissible.[12]
[11]DPP v Ping Lin [1976] AC 574.
[12]Earlier authority might suggest a different result. See, for example, R v Zaveckas [1970] 1 WLR 516, in which the exchange: ‘If I make a statement will I be given bail?’ Answer: ‘yes’ was held to make a confession inadmissible. See also R v Bosman (1989) 40 A Crim R 205.

In classical terms, in order to be admissible, a confession must be an expression of independent will.[13] It will not be admitted unless it is shown to have been made ‘in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure … [S]uch a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.’[14] The confession must not be made in consequence of oppression.[15]
[13]Sinclair v R (1946) 73 CLR 316 at 344.
[14]R v Lee (1950) 82 CLR 133 at 144 citing with approval the formulation of this principle by Dixon J in McDermott v The King (1948) 76 CLR 501 at 511-12.
[15]R v Lee (1950) 82 CLR 133 at 149.

In recent times, the High Court has noted that after the decision in R v Lee,[16] involuntariness was given a wider scope in Australia than in England.[17] Whereas in England, the rationale for the rule excluding involuntary confessions was, in its origins, that they were considered to be unreliable, a second justification was recognised in this country. It arose out of the common law privilege against self-incrimination. Curial concern about unreliability was subsumed by a concern about the nature of the inducement and its effect upon the will of the person making the confession. In determining any objection to the admissibility of a confession based upon voluntariness, the court would not attempt to determine its actual reliability. Rather, it would assess the nature and effect of any inducement in order to determine whether the will of the confessor had been overborne by the conduct of a person or persons in authority.[18]
[16](1950) 82 CLR 133.
[17]R v Swaffield; Pavic v R (1998) 192 CLR 159.
[18]Ibid. The Uniform Evidence Acts have adopted a somewhat different approach to the admissibility of confessions. Voluntariness is dealt with by s 84, which provides that evidence of an admission is not admissible unless the Court is satisfied that the making of that admission was not influenced by violent, oppressive, inhuman or degrading conduct, or a threat of conduct of that kind. Inducements such as would render a confession inadmissible at common law may not do so under s 84. Inducements that involve impropriety on the part of the police are likely to be dealt with under one or other of the various exclusionary discretions contained in those Acts.

The focus upon the actual state of mind of the accused, in determining whether his will has been overborne, is a comparatively new phenomenon in the development of this branch of the law.[19] It invites a rather more sophisticated analysis of the question of voluntariness than was traditionally undertaken and may make it important to consider what the accused says about the effect of any inducement upon him. [20]
[19]See generally, R v Dixon (1992) 28 NSWLR 215 at 226 per Wood J.
[20]R v Parker (1990) 19 NSWLR 177 at 183-4 per Gleeson CJ.

Most recently, in Tofilau v R,[21] the High Court considered the admissibility of confessional evidence elicited by using a particular technique which involved deception on the part of the police. It was held that as the appellants did not believe the makers of the inducements to be persons in authority, or to be acting as agents of such persons, the rule that a statement cannot be voluntary if preceded by an inducement held out by a person in authority did not apply.
[21](2007) 231 CLR 396.

Relevantly for present purposes, the Court seemed to suggest that the concept of what Dixon J had once termed ‘basal involuntariness’ was informed by considerations of reliability only. Questions of fairness, and the need to control police conduct, were said to be relevant to the exercise of any discretion to exclude evidence, but not to admissibility as such. This may reflect a modest shift from what the Court had earlier outlined in Swaffield.

It should be noted that the position in Victoria has never been as generous towards the exclusion of confessional evidence obtained as a result of inducement as it was elsewhere. For one thing, s 149 of the Evidence Act 1958 (and its legislative precursors) have long provided that a threat or inducement would not lead to inadmissibility unless it was of a kind that was really calculated to cause an untrue admission to be made. The High Court has held that this section is limited to statements that amount to admissions of actual guilt that were induced by a threat or promise by a person in authority.[22] It follows that it has no application to statements upon which the Crown relies as demonstrating only a consciousness of guilt.
[22]Cornelius v R (1936) 55 CLR 235 and R v Lee (1950) 82 CLR 133.

Moving from these somewhat general statements of principle to their application to the particular facts of this case, it should be obvious that a threat need not be made overtly in order to operate as an inducement. Threats can be just as powerful if made implicitly.[23]
[23]The statement by Don Corleone in The Godfather, ‘I will make him an offer he cannot refuse’ is but one illustration of a threat couched in seemingly innocuous language.

That said, this is not in our opinion a case involving a veiled threat. In the first place, Detective Morris was simply responding truthfully to a question put by the applicant. It was not within his capacity to determine whether the police would oppose bail. That was a matter upon which he would need to seek the advice of his superiors.

More importantly, Detective Morris said nothing which would indicate to a reasonable bystander that the applicant was likely to be detained if he refused to answer questions. Quite the reverse. He followed up his statement as to having to seek advice by immediately reiterating that the applicant could choose to remain silent, and that it was his right to do so. He made it abundantly clear that he could in no way advise the applicant as to whether he should exercise that right. Indeed, he cautioned the applicant for at least the third time and offered to suspend the interview to enable him to obtain legal advice. The applicant took up that offer.

The applicant plainly understood that he was not obliged to continue with the interview at that stage. He spoke to a legal practitioner and received legal advice. He then agreed to be interviewed, although he was yet again cautioned that he need not do so. It was only at that stage, after being fully apprised of his right to remain silent, that he chose to answer questions regarding the events of the night before. It is difficult, in these circumstances, to see how it can be said that the applicant’s will was in some way overborne. If, contrary to what we have said, there was an inducement of some kind at the earlier stage, it was dissipated by reason of intervening events. [24]
[24]R v Doherty (1874) 13 Cox CC 23 and R v Dixon (1992) 28 NSWLR 215 at 226.

As we have indicated, a reasonable bystander would not have regarded what Detective Morris said as a threat. If the applicant wished to contend that he nonetheless viewed it in that light, it was incumbent upon his counsel to request a voir dire so that the applicant could put forward that evidence for her Honour’s consideration. It is a singular feature of this case that no such request was ever made.

The applicant was represented by experienced counsel. The only objection taken to the record of interview was that based upon the transcript and what was said to be the implicit threat revealed therein. In our view, her Honour was entitled to reject that objection. She was under no obligation, in the particular circumstances of this case, to conduct a voir dire. [25]
[25]Nothing in R v Deathe [1962] VR 650 holds that a trial judge is bound, in every case, to conduct a voir dire when a challenge is made to the voluntariness of a confession. It is true that the Crown bears the onus of establishing voluntariness in all such cases. However, whether a voir dire is necessary will depend upon precisely how any challenge is formulated. See generally, Attorney-General (NSW) v Martin (1909) 9 CLR 713 per Griffith CJ at 722-3 and per Barton J at 729. In R v Jeffries (1946) 47 SR (NSW) 284, Jordan CJ cited the judgments of Griffiths CJ and Barton J in Martin with approval. In MacPherson v R (1981) 147 CLR 512, Gibbs CJ and Wilson J cited the earlier decision of Hough v Ah Sam (1912) 15 CLR 452 in which it was observed that: ‘… if there is nothing to suggest that the confession was involuntary, the presumption is that it was voluntary.’ Brennan J added that in a case in which an accused is represented, a trial judge is entitled to infer, in the absence of objection, that there are no grounds for the exclusion of a confession and that it is prima facie admissible. MacPherson concerned an unrepresented accused. See also F Kaufman, The Admissibility of Confessions (3^rd ed, 1979) 68-79. Of course, where the voluntariness of a confession is properly in issue, it will generally be necessary to hold a voir dire because it is a condition precedent to the admissibility of a confession that it was made voluntarily.

Counsel who appeared for the applicant before this Court submitted that whatever the position may have been at the outset of the trial, the situation changed after his client gave the evidence that he did. As indicated, the applicant told the jury that he felt obliged to answer questions because he might otherwise be detained. It was submitted that, once this evidence was given, the trial judge was required to conduct a voir dire, even if she had not been obliged to do so earlier.

One answer to that submission is that no application of that type was made. It is by no means unusual for an accused, against whom a confession has been tendered, to testify that it was made involuntarily and, more importantly so far as the jury is concerned, that it was untrue.[26] Clearly, the allegation that the confession was involuntary may bear upon the likelihood of its having been true. [27]
[26]Burns v The Queen (1975) 132 CLR 258.
[27]R v Blades; ex parte Attorney-General (2001) 124 A Crim R 415 at 416.

It does not follow from the fact that evidence of that kind is given that the question of admissibility has to be revisited by the judge. Of course, the judge may, in a given case, consider it appropriate to do so. New facts might emerge which call into question the earlier ruling.

However, that was not this case. The applicant simply gave what might be regarded as a less than convincing account of what his state of mind had been at the time he was interviewed. That did not, of itself, require her Honour to conduct a voir dire. Nor did it establish that the Crown had failed to discharge its onus of showing that this record of interview was voluntary.

In our opinion, ground one is not made out.

Ground Two: Directions as to Intoxication

It was clearly established at trial that the applicant and complainant were both drinking on the night in question and that they were affected to some degree by alcohol. The complainant’s evidence was that she had drunk about three cans of light beer and perhaps three cans of full-strength beer. Under cross-examination, she conceded that she might have drunk more than that. Her evidence was, however, that she was able to function normally, and that her memory of the events in question was not impaired.

As regards the applicant, he told Detective Morris that he was not significantly affected by alcohol and that plainly he was not drunk.

The trial judge gave no specific directions as to intoxication. It is her Honour’s failure to do so that forms the basis of ground two. That ground is in two parts. It contends that her Honour failed to direct the jury that even if the complainant gave only drunken consent to sexual intercourse, that was still consent. It further contends that her Honour failed to direct the jury that intoxication might have prevented the applicant from becoming aware that the complainant might not be consenting.

In our view, there is no substance in either variant of this ground. Intoxication is not a defence. Its relevance, by way of defence, is that when a jury is deciding whether an accused has the relevant state of mind necessary for the commission of the offence, it may take into account the fact that he or she had been drinking.

The jury in this case were well aware of the fact that each party had been drinking. They were also well aware that neither the applicant nor the complainant claimed to have been seriously affected by alcohol. In the context of this trial, intoxication was not a live issue, particularly in circumstances in which no direction on intoxication was sought. [28]
[28]R v Morgan (1993) 30 NSWLR 543.

Ground three – the trial being ‘forced on’

It was submitted that the applicant’s trial had miscarried because counsel who appeared for him at trial was not given adequate time to prepare his case.

The applicant had been in dispute with the legal aid authorities regarding funding for his trial. They considered him to have had adequate means to contribute to his own defence. Because the applicant was to be self-represented, an order in the usual form was made that he be legally represented for the limited purpose of cross-examining the complainant. Counsel was retained on that limited basis. However, adequate funds became available overnight to the applicant and arrangements were made to have privately funded counsel represent him for the entire trial.

The same counsel as had been retained by the legal aid authorities was then retained by the applicant. It appears that he first spoke to the applicant on the night before the trial. They spoke again on the morning of the trial.

Importantly, counsel said nothing to her Honour to indicate that he had not had sufficient time to prepare his client’s defence. He did not ask for an adjournment. He did not even ask for the matter to be stood down for a time so that he could get further instructions. Rather, he simply addressed the question of voluntariness that we have already discussed.

Having had his submission regarding the record of interview rejected, counsel was asked whether there was anything else he wished to raise. He replied:

There is just a couple of witnesses extra that I wish my friend to call just in relation to – they will be brief but, again, I’ll need to speak to him, your Honour as your Honour will know I only got this trial yesterday afternoon.

The trial judge responded that it was a ‘pretty straightforward matter’. Counsel agreed at once with that assessment. As indicated, he made no request for any adjournment, or for the matter to be stood down, even temporarily. The trial then proceeded.

It is difficult to see how any of this supports the applicant’s contention that the trial was ‘forced on’. It is true that the applicant filed an affidavit in this Court, sworn by counsel who appeared for him at his trial, in which that very assertion is made. In that affidavit, counsel confirmed that he had conferred with the applicant on the evening of 9 July 2007, the night before the commencement of the trial. He described the applicant as highly agitated because of the uncertainty as to whether legal aid would fund his trial. He saw the applicant again the following morning, after arrangements had been made to fund the trial privately. He said that it was difficult to obtain instructions because the applicant was anxious and appeared to have been ‘rattled’ by the Court’s attitude to his request for legal assistance the preceding day.

Counsel then said that he had read the brief and was confident that the record of interview would be excluded. He said that he was surprised when her Honour ruled against his submission.

Counsel next stated that he had ‘requested time’ as he had been unable to take full instructions. He agreed that he had said at the time that he believed that the trial was a straightforward matter, but explained that this was because he had not been properly instructed. He asserted that the judge was aware of this. He added that he was of the view that the trial was being ‘forced on’ and that he had informed the applicant of this. He claimed that he was in no doubt that ‘a further adjournment application’ was highly unlikely to succeed because the trial judge appeared to be under time constraints.

Counsel concluded his affidavit by saying that he believed in hindsight that he had not been sufficiently instructed to run his client’s case properly.

Counsel’s affidavit should not have been sworn in this form. It contained speculation as to a number of matters that could not properly have formed the basis of admissible evidence. It was also misleading and inaccurate in suggesting that he had ‘requested time’ to take full instructions when the transcript shows that he had done nothing of the kind.

If counsel regarded himself as having had insufficient time to prepare his client’s case, it was his clear duty to inform her Honour of that fact. It was also his duty, in those circumstances, to seek an adjournment irrespective of whether he thought such an application would be granted.

There are cases in which a refusal of an adjournment to allow counsel freshly briefed to obtain instructions has resulted in a trial having miscarried.[29] Nonetheless, appeal courts rarely interfere in the exercise of a trial judge’s discretion to grant or refuse an adjournment.[30] In circumstances in which experienced counsel did not seek an adjournment, it can hardly be contended that the trial judge erred in not granting one.
[29]R v McGill [1967] VR 683.
[30]Bates v McDonald (1985) 2 NSWLR 89 at 97. See also McColl v Lehmann [1987] VR 503.

There is no basis for the complaint set out in ground three.

Grounds four, five, six, seven and eight – the complaint grounds

These grounds all relate in various ways to what the complainant said to the police and doctor who examined her on the morning of 9 October 2005.

The Crown led evidence from Sergeant Marshall, who was stationed at Frankston Police Station on the night in question. He said that at about 4.40 am on the Sunday, he was told by a colleague, Constable Lewer, that the complainant had attended at the police station saying that she had been raped. Sergeant Marshall then spoke to the complainant. He noted that she appeared to be very upset and was crying. She told him that the applicant had raped her, and gave him a detailed account of what she said had taken place. The conversation lasted for about five to ten minutes.

Sergeant Marshall was not asked, in chief, to outline the details of the complainant’s account. He said simply that he had arranged for specialist units to be contacted. He was asked why he had delegated the task to those units. He answered, non-responsively, ‘after my conversation with the complainant, I was satisfied that a crime had been committed’. That answer formed the basis of ground six. It was met by the prosecutor saying immediately: ‘Don’t worry about that. All I am asking is, why didn’t you take over the running of this case?’ Sergeant Marshall replied that this was standard policy and the specialist units were better equipped than he to pursue the investigation.

With regard to ground six, Sergeant Marshall’s answer did not, in our view, cause the applicant to suffer any prejudice. It was immediately swept aside by the prosecutor. There was no application to discharge the jury and nothing further was said about the matter.

Ground four complains that Sergeant Marshall ought not to have been permitted to give evidence of what the complainant had told him. It was submitted that the complainant’s account was not given at the first available opportunity and that it was not spontaneous. Accordingly, the requirements of recent complaint were not met. Ground five is broadly to the same effect.

The doctrine of recent complaint constitutes an exception to the rule against prior consistent statements. Evidence of such complaint is admissible to show consistency of conduct on the part of the complainant.[31] The cases establish that the complaint must have been made voluntarily and not have been elicited by questions of ‘an inducing or intimidating character’.[32] It must have been made as speedily as could reasonably have been expected. In that regard, a complaint made as long as a week after the event in question has been admitted.[33] The mere fact that the complaint might have been made to others before it was made to the witness who narrates it in court does not prevent it from being received in evidence.[34] Two or more complaints may be proved so long as each of them can fairly be regarded as having been made at the first reasonable opportunity. [35]
[31]Kilby v R (1973) 129 CLR 460 at 472 and R v Knigge (2003) 6 VR 181 at 189-90 per Winneke P.
[32]R v Osborne [1905] 1 KB 551 at 561.
[33]R v Hedges (1909) 3 Cr App R 262; R v W [1996] 1 Qd R 573.
[34]R v Wilbourne (1917) 12 Cr App R 280.
[35]R v Freeman [1980] VR 1 at 8.

What is reasonable, in terms of delay, must be judged by reference to the particular circumstances of each case.[36] In R v Freeman,[37] the Full Court stated that ‘reasonable’ must take into account the subjective situation in which the prosecutrix was placed and have regard to such factors as were operating on her at the material time after the events.
[36]R v GG (2004) 151 A Crim R 92 at 103.
[37]R v Freeman [1980] VR 1.

It is plain that the particulars of the complaint may be proved.[38] However, they are not at common law evidence of the facts of which complaint was made, but go only to the credibility of the complainant. [39] It does not give additional support to the probability that the offence occurred and its only effect is to show consistency of conduct by the complainant.[40]
[38]R v Lillyman [1896] 2 QB 167.
[39]Kilby v R (1973) 129 CLR 460 at 472 and Ugle v The Queen (1989) 167 CLR 647 at 649.
[40]R v Munday (2003) 7 VR 423; R v Demiri [2006] VSCA 64 at [47]

It is important to appreciate that no objection was taken to Sergeant Marshall’s evidence. The complainant had earlier told a friend that she had been raped and was taken immediately to the police station where she repeated that allegation. Only a very short time had elapsed between the commission of the alleged offence and her recounting of it to the police. It was plainly open to the trial judge to conclude that Sergeant Marshall’s evidence was admissible even if objection had been taken to it. No complaint is made of her Honour’s directions to the jury as to the limited use that could be made of this evidence.

The second limb of these grounds relating to complaint concerns the evidence of Dr Morgan, a forensic medical officer with the Victorian Institute of Forensic Medicine. Dr Morgan attended upon the complainant at about 7.10 am on 9 October 2005. He examined her and made observations as to her physical and emotional condition. Before doing so, as is the norm, he sought and obtained from her an account of what she said had occurred. He did so in order to assist him in forming an opinion as to whether an offence had been committed. He was asked in court to detail the history that he had obtained, and he did so. No objection was taken to that course. In general terms, Dr Morgan’s account of what the complainant had told him accorded with what she had earlier told Sergeant Marshall.

Grounds seven and eight are directed towards Dr Morgan’s evidence. Ground seven complains that he ought not to have been asked and, if asked not permitted to answer, the question regarding the history that had been provided by the complainant.

We consider that Dr Morgan’s evidence of what the complainant had told him fell within the ordinary principles of recent complaint. Even if the requirements for recent complaint were not met, it is difficult to see how a brief summary of the type he gave of what he was told caused the applicant any prejudice. It had already been established that she had complained at the first reasonable opportunity. That she gave Dr Morgan essentially the same account as she had given Sergeant Marshall several hours earlier could hardly have been detrimental to the applicant’s case.

In any event, the jury could not be expected to evaluate Dr Morgan’s testimony to the effect that the complainant exhibited certain characteristics that were consistent with her having been raped without knowing something of what he was told before he commenced his examination.

A separate complaint is made regarding her Honour’s failure to direct the jury that the history taken by Dr Morgan, and recounted by him to the jury, was not evidence of the truth of that which was asserted, but went only to bolster the complainant’s credibility. There is substance in that criticism. However, no such direction was sought and no exception was taken to her Honour’s charge.

Moreover, her Honour did direct the jury as to the limited use that could be made of complaint evidence in the context of Sergeant Marshall’s testimony.[41] In these circumstances, we are not persuaded that the failure to give a similar direction in relation to Dr Morgan’s testimony gave rise to a miscarriage of justice.
[41]In that regard, the present case differs from R v Demiri [2006] VSCA 64, where a conviction of rape was quashed because the trial judge had failed to direct the jury about the use to which complaint evidence could, and could not, be put. See also, R v Stoupas[1998] 3 VR 645; R v Munday (2003) 7 VR 423; R v GG (2004) 151 A Crim R 92; and R v Salih (2005) 160 A Crim R 310.

It follows that grounds four to eight are not made out. Before leaving these grounds, we should say something as to the prosecution’s decision to adduce evidence from a number of police officers to whom recent complaint had been made. Ordinarily it would be neither necessary nor desirable to call multiple witnesses as to recent complaint. It is another matter if the evidence of the making of the complaint or its content is the subject of serious dispute. In the present case the defence sought to make use of the content of the complaint and variations in its content, to attack the credit of the complainant. Where the complaint is not the subject of challenge, the prosecution should call the minimum evidence necessary to establish that the complainant had acted in a consistent manner.

Ground nine – failure to relate the law to the facts

As previously indicated, the trial was conducted throughout upon the basis that the only issue in dispute was that of consent. In that regard, the case turned largely upon the credibility of the complainant. She said that she did not consent to sexual intercourse and maintained that she had made her position perfectly clear to the applicant. His case was that she had lied about this, that she had freely and willingly engaged in sexual intercourse, and that she had only decided to allege rape after they had quarrelled.

Of course, the fact that the trial was conducted upon that footing did not relieve the trial judge of the obligation to direct the jury as to each and every element of the charge brought, and her Honour did so. No complaint as to the adequacy of the directions regarding these elements is made.

However, the point is taken that her Honour was obliged to give a further direction regarding the possibility that the applicant might mistakenly have believed that the complainant was consenting, when, in fact, that was not the case. Although no such direction was sought at trial, the judge gave the jury the necessary direction on this issue in these terms:

In this case the accused said that he was unaware that Ms [Y] was not consenting or might not be consenting. In fact, he says he believed that Ms [Y] consented to sexual penetration. If the prosecution cannot exclude this possibility, beyond reasonable doubt, then this fourth element of rape will not be met.
It is not for the accused to prove that he had this belief but for the prosecution to prove beyond reasonable doubt that the accused did not have such a belief. That is the prosecution must prove to you beyond reasonable doubt that the accused did not believe that Ms [Y] was consenting.
The law says that the accused’s belief in consent need not be reasonable, even if the accused unreasonably believed that the complainant consented, you must return a verdict of not guilty. However the reasonableness of the accused’s belief is not irrelevant. In determining whether or not the accused, in fact held that belief you must consider whether his alleged belief that Ms [Y] was consenting was reasonable in all the circumstances. The reasonableness or unreasonableness of the accused’s alleged belief is no more than a guide to help you decide whether the prosecution has proved that the accused did not believe that the complainant was consenting.
Look at all the circumstances in deciding this issue. Do not focus on only one factor and ignore the rest. You must consider all the evidence including anything said or done in the circumstances. If upon consideration of all the evidence you find that the prosecution has proven beyond reasonable doubt that the accused was aware that the complainant was not consenting or was aware that the complainant might not be consenting, but decided to sexually penetrate her whether or not she consented, then this fourth element will be met.

Not surprisingly, no exception was taken to her Honour’s charge in this regard.

Despite the course taken by the defence at trial and the judge’s charge, the applicant now places strong reliance upon the well-known statement of Barwick CJ in Pemble v R,[42] where his Honour said:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.[43]

[42](1971) 124 CLR 107.

[43]Id at 117-8. See also, Menzies J at 130 and 133.

The Chief Justice’s statement reflects a long-standing doctrine at common law that a trial judge must always put to a jury any defence that is fairly raised by the evidence.[44] For example, in Gillard v The Queen,[45] the appellant was convicted of murder on the basis of common purpose or, as it is often described, concert. At trial, his counsel resisted a direction being given on manslaughter and supported a direction of either murder or acquittal. On appeal, it was successfully contended that this direction was erroneous and that manslaughter should have been left to the jury.
[44]See, for example, Mancini v Director of Public Prosecutions [1942] AC 1 and Kwaku Mensah v The King [1846] AC 83. In these cases, no reliance was placed upon provocation in answer to a charge of murder. However, there being material upon which the jury could properly have found provocation, it was incumbent upon the trial judge to direct the jury as to that defence. See also: R v Tikos (No 1) [1963] VR 285 at 289 and R v Badjan (1966) 50 Cr App R 141. The trial judge may have a duty to leave a defence to a jury even though defence counsel asks that it not be left: R v Allwood (1975) 18 A Crim R 120 at 130 per Crockett J.
[45](2003) 219 CLR 1.

The doctrine so powerfully stated in Pemble must nonetheless be understood in light of the earlier observations of the High Court in Alford v Magee.[46] In that case, their Honours endorsed a statement by Sir Leo Cussen that it was of little use to explain the law to the jury in general terms and then leave it to them to apply to the case before them. The law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to those facts in question. However, the only law which it was necessary for them to know was so much as would guide them to a decision on the real issue or issues in the case.
[46](1952) 85 CLR 437.

Alford v Magee is, of course, still good law. It has been cited with approval by the High Court in recent years on many occasions.[47] Pemble too remains good law. It is cited often and not infrequently applied.
[47]See, for example, R v Chai (2002) 187 ALR 436 at [18] and Fingleton v R (2005) 227 CLR 166 at [77]. See also the discussion in R v Zilm (2006) 14 VR 11[50.

The issue raised by ground nine involves no question of general principle. It concerns only how a well-established doctrine is to be applied to the particular facts of this case.

The applicant defended the case on the basis that the complainant consented to all that occurred. Although it was never suggested by the defence in terms that he had a mistaken belief in consent, the trial judge said that the applicant had given evidence ‘that he had no reason to believe that she was not consenting’. Hence the trial judge directed the jury that even though they might find the complainant was not consenting, the prosecution must exclude the possibility that he believed she was.

The jury were given careful directions as to each and every element of the crime of rape. They were reminded of the evidence that bore upon the issues of consent and the applicant’s state of mind. The complainant’s evidence and the applicant’s account bearing upon whether the Crown had proved that what took place occurred against the complainant’s will, and whether the applicant knew that the complainant was not or might not be consenting, was summarised in some detail.

The applicant’s complaint, now made for the first time, before this Court, is that the trial judge failed to remind them of certain evidence, which, it is said, might have borne not so much upon consent as upon mistaken belief in consent. His submission is that her Honour failed to relate that evidence to the possible defence, not expressly raised at trial, which was reasonably open.

The applicant’s evidence did little to advance the contention that even if the complainant was not consenting, he may have had a mistaken belief about consent. But the trial judge summarised such evidence as there was. Her Honour reminded the jury of the evidence that both the complainant and applicant had consumed a large amount of alcohol. The trial judge summarised the applicant’s evidence to the effect that after the complainant was sick in the bucket, she went outside for ten minutes, that she was sobbing, that he eventually persuaded her to come back inside, that they then sat on the couch drinking more beer and watched a music video. The trial judge then summarised his evidence as follows:

He said he could not remember a great deal after that and maybe an hour and a half later he said they had sex. He said, “I don’t know how we got started. I was on top of her.” He denied that she said no or that he told her to shut up. He denied that she struggled and said he would have immediately stopped if he thought she was not consenting. He said that he had at least a 30 per cent hearing loss.

Counsel identified three specific items of evidence which he submitted her Honour ought to have given specific directions about. First, the applicant was drinking. Next, he suffered from a hearing impairment. Finally, the music had been turned up loud. Counsel submitted that from these three pieces of evidence, or perhaps a combination of them, the jury could have entertained a reasonable doubt as to guilt. The reasoning underlying that submission is that the jury might have concluded that the applicant did not hear the complainant when she repeatedly told him that she did not want to have sex with him.

Yet again, we note that counsel who appeared at the trial did not seek a direction of the kind now said to have been essential to a fair trial. He also took no exception to her Honour’s charge. That is of significance in considering whether, by reason of her Honour’s direction to the jury, there was a miscarriage of justice.

The jury were obviously aware that both the applicant and complainant had been drinking on the night in question. Her Honour reminded them of the evidence from both the applicant and complainant as to how much they had drunk. The jury were reminded of the answers in the applicant’s record of interview in which he had alleged that they had each consumed at least twenty ‘stubbies’. They would hardly have needed her Honour to remind them that alcohol can impair the senses.

The trial judge summarised the evidence given by the applicant regarding his hearing. She reminded the jury that he had at least a 30 per cent hearing loss. In some circumstances, that might give rise to a possibility that an accused did not hear a complainant telling him to stop. In the present case, that possibility is greatly diminished by her evidence taken as a whole, including her account of what he allegedly said when she told him that she did not wish to have sex. The communications that passed between them at that time were critical to the prosecution’s proof as to the absence of consent.

The point about loud music has little to commend it. Her Honour reminded the jury of the evidence that at about 1 am, a neighbour had complained about the noise that was coming from the house. In that regard, the applicant himself said that he had thereafter turned down the music. Given that the act of sexual intercourse took place at least up to an hour later, it is difficult to attribute any weight to the volume of the music being played earlier that evening.

The trial judge directed the jury that they had to be satisfied that, at the time of sexual penetration, the applicant was either aware that the complainant was not consenting, or that she might not be consenting, but decided to have intercourse with her regardless. In relation to his mental state, her Honour said to the jury:

… [t]he Crown allege that the evidence of [Ms Y] proves, beyond reasonable doubt, that she communicated her lack of consent by saying “no” to the accused, by telling him she did not want to do this. By telling him she was sick and by telling him he was hurting her. She also said to the effect that she tried to struggle, but he effectively pinned her down and she could not move.

The trial judge may be required to relate such facts as are established to a defence that is not raised at the trial including facts that the accused positively eschews. However, the need to do so depends upon whether the particular hypothesis upon which that defence rests is supported by the evidence fairly raised for the jury’s consideration. The issue raised is whether, in the particular circumstances of this case, the trial judge was required, by the principle articulated in Pemble, to say more than she did in relation to these three facts - alcohol, hearing impairment and loud music in support of the defence of mistaken belief.

In our view, her Honour was under no obligation to address the issue or the evidence relating to it in any more detail. The practical reality was that the complainant’s evidence, taken as a whole, did not allow for any intermediate finding of mistaken belief. If her evidence was accepted, at least to any significant degree, not only had she not consented but the applicant was obviously aware of that fact. If her evidence was significantly impugned, the Crown would have failed to establish lack of consent.

The trial judge clearly viewed the complainant’s evidence in this light. Her Honour told the jury that, in substance, the complainant’s version of what occurred involved her conveying her objection to any sexual intimacy, by rebuffing him when he touched her face with his penis, by her subsequent protestations, his verbal response to them and his use of force. She directed the jury in those terms. Counsel took no exception to that description. The jury were told, as all juries are, that they could accept or reject so much of the complainant’s evidence as they saw fit. It does not follow that an elaborate construct should be advanced on appeal whereby it is submitted that the jury might have accepted that the complainant had repeatedly told the applicant to stop, which, because he was drinking and had a hearing difficulty, he had not heard, but might not have accepted the complainant’s version of what the applicant said in response. The possibility that the jury might have reasoned in that way seems somewhat remote, particularly in the light of the evidence that the complainant had physically resisted sexual intercourse or ‘struggled’, as her Honour put it. At some point, there must be an air of reality associated with the consideration of such matters.

There is nothing in any of the recent decisions of this Court regarding the application of this common law principle stated in Pemble that supports the contention that the trial judge was obliged to do any more than she did. In R v VN,[48] Redlich JA, with whom Maxwell P and Buchanan JA agreed, said:

Though a plea of not guilty puts in issue all the elements of the offence charged, that is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element. [49]

[48](2006) 15 VR 113.

[49]Id at [119].

His Honour went on to say, citing Pemble:

Though the course taken by the defence at the trial will contribute substantially to the form and content of the charge, the course taken by the defence is not determinative of the extent of the directions as to law and fact which the trial judge would be bound to give a jury. A direction will only be adequate if it addresses the law and the possible use of relevant facts upon which the jury, on the evidence open to them, could base a verdict.[50]

[50]Id at [120].

In VN, the only evidence before the jury was that the complainant had not consented to the act constituting the indecent assault. According to her, she had made her views clearly known to the applicant before that act took place. His defence was a complete denial that any such act had occurred. No issue of either consent or mens rea arose. In those circumstances, it was held that there was no need to direct the jury as to the facts that might have borne upon either of those issues. [51]
[51]See also, R v Aden, R v Toulle (2002) 162 A Crim R 1.

In R v Tran,[52] Redlich JA referred to the common law principle in Pemble. After citing various authorities, his Honour said:

The fact that defence counsel does not stress an alternative case before the jury (which he or she may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it.[53]

[52][2007] VSCA 19.

[53]Id at [40].

He added:

The conduct of the defence cannot exhaustively determine the scope and conduct of the judge’s charge. Rather, the trial judge must direct the jury on all issues of law which the trial judge decides exist. The decision must be made by reference to whether the issue is raised by the evidence, rather than by the parties. But it must none the less be a ‘real issue’ plainly arising from the evidence as distinct from a remote or artificial possibility.[54]

[54]Id at [42]. See also the judgment of Redlich JA in R v Thompson [2008] VSCA 144 at [106]-[108].

The distinction between a ‘real issue’ and a ‘remote or artificial possibility’ was reflected in R v Alexander,[55] a case closely on point to the present. In Alexander, the applicant was convicted of rape. The applicant and the complainant had lived in a de facto relationship for a number of years. In 2001, they separated but continued to have an ongoing relationship, which the trial judge described as being ‘occasionally sexual’. It was in that context that, according to the complainant, in April 2004, the applicant came to her home in the middle of the day unannounced. She said that the applicant told her that he wanted to have sex, pushed her into the bedroom, and forced her to have oral sex. She claimed that he did so despite her having told him that she wanted nothing more to do with him and, if he did anything at all, it would be rape.
[55](2007) 174 A Crim R 297.

The applicant’s version was that the complainant had said nothing of the kind, and that she had consented to oral sex.

It was against that background that the applicant contended on appeal that the trial judge had been required to give a direction regarding mistaken belief as to consent. That might be thought to be a surprising submission unless one understood the context in which that ground of appeal arose.

Shortly after the jury retired, they asked a question. Relevantly, that question was:

… If the accused thought that [the complainant] was consenting is it rape? If the accused didn’t think that [the complainant] was seriously objecting is it rape? If you wear the victim down to the point of giving consent is that classed as rape? …

The trial judge responded by giving a further lengthy direction as to the elements of rape, but did not address the question actually posed. No exception was taken to that further direction.

The Court of Appeal divided on the question whether, in the particular circumstances, a direction as to mistaken belief had been required. Chernov JA pointed out that at trial the only relevant factual issue in dispute in respect of the count of rape was that of consent. The defence case was that the jury should not accept the complainant’s version of events. That was the case put forward on behalf of the accused both through his record of interview and in his counsel’s closing address.

Importantly, his Honour said:

It must be accepted that mere failure by the applicant’s trial counsel to put to the jury that even if they accepted the complainant’s version they could not be satisfied beyond reasonable doubt that he did not believe that she was, or might, not be consenting would not have absolved his Honour from the obligation to tell the jury that such a finding was open to them, providing there was evidence on which such a conclusion could have been reached. As Nettle JA pointed out in R v Tran, despite the way in which the defence case was conducted at trial, if there was a basis on which the jury could have reached a conclusion favourable to the offender, it was incumbent on the judge to leave that to the jury as a possibility and to direct them accordingly. In the same case, Redlich JA said that the mere fact that defence counsel does not stress an alternative case before the jury (which he or she may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. Importantly, for present purposes, his Honour went on to say that the obligation of the judge is to identify and to direct the jury only on “real issues” that plainly arise from the evidence as distinct from a remote or artificial possibility. Thus, it is apparent enough that a judge is not required to deal with a possible alternative defence not put by counsel for the accused to the jury where there is no evidence on which they could properly reach the conclusion to accept the alternative scenario. And in my view that was the position in this case.[56] (Footnotes omitted.)

[56]Id at [18].

His Honour then added:

As counsel for the respondent pointed out in his submissions to us, correctly, I think, the judge directed the jury on the basis that if they did not accept the essential aspects of the complainant’s version of what took place in relation to the bedroom incident, they were bound to acquit the applicant. Plainly enough, if that were to be the position, that is to say, if the jury rejected the whole or even part of the complainant’s version of events and concluded that they were not satisfied beyond reasonable doubt as to her claimed lack of consent, the question whether the applicant had formed a mistaken belief about the complainant’s consent would not have arisen.
But if the jury were satisfied to the requisite standard that the complainant had not consented to have sex with the applicant as she claimed, I consider that, unless there was evidence on which they could have concluded that he may have been mistaken as to her state of mind, to direct them to consider this possibility would have been tantamount to inviting them to speculate on the matter. As I have said, it is one thing for the jury to reject the whole or part of the complainant’s evidence going to the question of consent and to conclude that, in the circumstances, they were not satisfied beyond reasonable doubt that she did not consent. But it is an altogether different matter to tell the jury that, even if they accepted the essential aspects of the complainant’s evidence, they should nevertheless consider if the applicant might have been mistaken on the issue of consent where there is no evidence from which such a belief on the part of the applicant could be inferred.
It is not altogether irrelevant that such a scenario was never put by counsel to the complainant in cross-examination or to the jury in final addresses. It was not suggested to her in cross-examination, for example, that she was only “playing hard to get” or that her stated refusal to have sex with the applicant was made in tones that could have been taken as no more than a thin disguise for her preparedness to have sex. But more importantly, I think that there was no evidentiary basis on which the jury could have concluded that the applicant held a mistaken belief on the question of the complainant’s consent.
It seems to me that, contrary to the applicant’s claim, his Honour made it sufficiently plain in his answer, particularly when it is considered in the context of his charge, that mens rea by the applicant must be established by the prosecution to the requisite standard. As has been noted, the judge told the jury in his answer that before they could find the applicant guilty of rape, one of the matters of which they had to be satisfied beyond reasonable doubt was that the applicant “knew that [the complainant] was not consenting or might not be consenting ... and that’s the required guilty mind of the accused.” As Callaway JA pointed out in R v Zilm, what the Crown must relevantly establish in relation to a charge of rape is that, in fact, the accused was aware that the complainant was not consenting or might not have been consenting. As to that, I think the judge made the requirement sufficiently plain to the jury. And I consider that his Honour’s impugned comment merely emphasised that the prosecution could not establish that the applicant raped the complainant unless they accepted beyond reasonable doubt her version of the events. Moreover, as I have noted, there was no exception taken by the applicant’s experienced trial counsel to the judge’s impugned answer that was, essentially, consistent with the judge’s charge on this issue. It is also not irrelevant that the prosecutor, who was also experienced in the jurisdiction, appeared content with the charge and his Honour’s impugned answer. Although not determinative of the issue, this indicates that neither counsel perceived any unfairness or deficiency in his Honour’s answer of the kind now asserted by the applicant’s counsel. I mention for completeness that, in my view, Zilm was a materially different case. There, the trial judge failed in the charge sufficiently to relate the law to the facts and issues. But in the circumstances of that case there was an evidentiary basis on which the jury may have concluded that the accused might have mistakenly believed that the complainant was consenting to having sex with him. As I have said, in my view, that is not the position here.[57] (Footnotes omitted.)

[57]Id at [19]-[23].

Ashley JA agreed with Chernov JA that the trial judge had not been required to direct the jury regarding the possibility of a mistaken belief in consent. His Honour observed that having studied the transcript, including counsels’ addresses, it was clear that the trial had been conducted upon a single issue, namely, whether the complainant’s evidence regarding the alleged rape should be accepted as meeting the requisite standard.[58] He noted that the evidence of the complainant and the applicant’s account directly collided at a number of points. He said:

In the circumstances which I have described, I consider that the directions given by the learned trial judge in the first instance were appropriately tailored to the issue upon which the trial was focused. His Honour stated the elements of the offence, including the third element, and in doing so emphasised that the burden of proof in each instance lay on the Crown. Then he focused upon the area of controversy. Although, as a matter of legal theory, acceptance of the key aspects of the complainant’s evidence to the criminal standard would leave open the possibility that the Crown might have failed to prove the third element of the offences, that possibility was distant from the trial as it had been fought. Particularly, in a criminal trial, where it is not in debate that experienced, competent counsel acted for the Crown and the accused, I respectfully consider that there is much to be said for more than lip service being paid to the celebrated observations in the joint judgment in the High Court in Alford v Magee.[59] (Footnotes omitted.)

[58]Id at [59].

[59]Id at [64].

His Honour relied upon the starkly different accounts of the critical event given by the complainant and the applicant as justification for his conclusion that there was no reasonable basis on the evidence for raising directly with the jury the question whether there might have been a mistaken belief as to consent.

Nettle JA dissented. His Honour accepted that the applicant’s case on appeal in relation to the issue of mens rea had been conducted differently from the way in which it had been presented at trial. More particularly, defence counsel had not put in terms to the jury that there was an evidentiary basis from which to conclude that the applicant might have mistakenly believed that the complainant was consenting to oral sex.

However, that said, in light of the jury question, his Honour felt constrained by the common law rule, most clearly expressed in Pemble, to conclude that there was such an evidentiary basis which had been removed from the jury’s consideration in the answer given by the trial judge.[60]
[60]See [43]-[45] of His Honour’s reasoning.

We are not concerned in the present case with a jury question which focussed upon the possibility of a mistaken belief. But the discussion in the majority judgments in Alexander, where the only genuine issue raised in the trial was consent, provides general support for the conclusion in the present case that it was unnecessary to have given the jury any further direction in relation to mistaken belief.

As already indicated, we are unable to see how, particularly having regard to the absence of any specific evidence from the applicant as to how they commenced to engage in intercourse, it would be realistic to attribute to the jury the possibility that they might have been satisfied that the complainant was telling the truth about consent, and telling the truth about having told the applicant in no uncertain terms to stop, but not satisfied that she was telling the truth about his immediate and aggressive response. It is to use the language of Redlich JA, a ‘remote and artificial’ possibility.

In our view, there was no realistic foundation in the evidence, or in the way the trial was conducted, for a finding of mistaken belief. In any event in our view the trial judge sufficiently drew attention to the issue and the evidence that was arguably relevant to it.

It follows that we would reject ground nine.

Ground ten – accumulation of errors

We have concluded that any errors that her Honour made in the conduct of this trial were of no real significance and did not prejudice the applicant. We are not persuaded that any accumulation of such errors, if made, gave rise to a miscarriage of justice.

Ground eleven – unsafe and unsatisfactory

It was not submitted that the conviction was unsafe and unsatisfactory in the sense spoken of in M v R.[61] This Court was not asked to conclude whether it thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt. Rather, the ground relied upon was that identified in R v Kotzmann,[62] namely, that arising from an aggregation of defects.
[61](1994) 181 CLR 487.
[62](1999) 2 VR 123.

It is well established that even if each of a series of grounds of appeal fails, nevertheless the combination or aggregation of the defects said to be identified in those grounds may lead this Court to conclude that there has been a miscarriage of justice.[63] However, this ground was only faintly pressed. For the reasons discussed above, it is not made out.
[63]R v Ireland (1970) 126 CLR 321 at 331; R v Gibb and McKenzie [1983] 2 VR 155 at 166; R v Levidis [1991] 2 VR 179 at 182; R v Appleby (1996) 88 A Crim R 456 at 488; R v McKellan [1998] 4 VR 757 and R v Robertson [1998] 4 VR 30.

Sentence

As previously indicated, the applicant was sentenced to a term of five years and six months’ imprisonment with a non-parole period of four years. In arriving at that sentence, her Honour noted that the applicant had several prior convictions, none of which were of any relevance. He was born in October 1963, which made him 43 years of age at the time of sentence. He had several prior convictions for minor offences, but these were of no consequence. A bundle of testimonials had been tendered on his behalf, all of which attested to his good character as a loving father and son and constant friend.

Her Honour noted the particular difficulties created for the applicant’s daughter by his imprisonment, which were compounded by the tragic death of her mother. The evidence was that the applicant’s estranged wife had taken her own life in appalling circumstances at about the time that he met the complainant. It appears that his wife had been speaking to the applicant on her mobile phone, demanding that he return to her. While speaking to him, she leapt in front of an oncoming train. At the time he was sentenced, the applicant had been living with his daughter and his then 80-year-old mother, who depended upon him to perform work around the house.

The sentencing judge noted that the applicant’s counsel had relied upon the following mitigating factors:

·the offending occurred in the context of an ongoing sexual relationship where both parties had been drinking heavily;
·a lack of relevant prior convictions and no matters pending;
·the applicant had struggled with anxiety and depression for some years and was still dealing with the suicide of his wife; and
·he was the primary carer for his teenage daughter.

On the other hand, the sentencing judge noted the complainant’s victim impact statement in which she spoke of the ongoing effects of this crime. Her Honour referred to the need to give effect to the principle of general deterrence and spoke of the breach of trust involved in this offence. She described the applicant as lacking insight into the nature of his offending conduct and highlighted his failure to express any remorse or contrition. She characterised him as presenting an uncertain risk for the future.

Nonetheless, when it came his prospects of rehabilitation, her Honour said:

You are now 43 years old with no prior relevant history. You have continuing parental responsibilities, a consistent employment record and support from family and friends. You should have good prospects for rehabilitation.

Finally her Honour spoke of the need to pass a sentence that made clear the denunciation of the applicant’s conduct and was, in all the circumstances, just. She then imposed the sentence of five years and six months’ imprisonment with a non-parole period of four years to which we have referred.

Counsel for the applicant’s submission regarding sentence was brief and to the point. Although the application for leave to appeal against sentence contained a number of grounds, it was basically contended only that, although her Honour found that the applicant’s prospects of rehabilitation were good, she had fixed a non-parole period that did not reflect that finding. In other words, it was submitted that the gap between the head sentence and non-parole period was insufficient to allow for rehabilitation. Moreover, no explanation had been given as to why such a high non-parole period had been fixed. In the recent decision of R v Koumis & Ors[64] the Court said:

Counsel for Jones drew attention to the disposition which had been sought on behalf of his client on the plea. It had been submitted that a short minimum sentence should be imposed. Instead an unusually high minimum term had been fixed. As factors indicative of rehabilitation had been identified during the plea and it had been submitted that a lower than usual non parole period was appropriate, one would ordinarily expect some reasons to be given in the sentencing remarks for the very high minimum term. No reasons were given for doing so. The absence of reasons for something so unusual ‘does not inevitably betoken error’ but it ‘invites appellate scrutiny’. In R v Detanamo this court said:
“A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error.”

[64][2008] VSCA 84 at [31]

It is well established that a judge sentencing an offender is obliged to explain the basis upon which the sentence was arrived at. The Sentencing Act1991 sets out a number of matters which must be taken into account but does not require a judge always to refer to each of them when explaining the sentence imposed. But the failure of the sentencing judge to mention a particular factor in the reasons for sentence does not mean that it was not considered or was not given sufficient weight. [65]
[65]R v Gray [1977] VR 225.

There is no fixed rule as to the ratio that should exist between a head sentence and a non-parole period. Much will depend upon the length of the head sentence. Nonetheless, it is generally the case that on a head sentence of something like five years and six months’ imprisonment, one would expect a shorter non-parole period, for a first offender with good prospects of rehabilitation, than four years. In our view, this was a case where, if there were to be a departure from what might be thought to be the more normal ratio between a head sentence of this order and a non-parole period, her Honour ought to have given such reasons. Her failure to do so suggests sentencing error of a kind that warrants the intervention of this Court.[66]
[66]In R v Krasnov and Shlakht (1995) 82 A Crim R 92, the Court reduced a sentence of sixteen years’ imprisonment with a non-parole period of fourteen years to a sentence of sixteen years’ imprisonment with a non-parole period of eleven years for just this reason. See also R v VZ (1998) 7 VR 693, where an unusual relationship between the head sentence and the non-parole period (in that case, eight years with a non-parole period of six and a half years), which was unexplained by the sentencing judge’s reasons, was held to vitiate the sentence and to justify the fixing of a new non-parole period of five and a half years. The principle is applicable to Crown appeals involving unusually low non-parole periods as well: DPP v Josefski (2005) 13 VR 85.

Counsel for the applicant submitted that if sentencing error was demonstrated, and the Court proposed to re-sentence his client, it should take into account medical evidence, which showed that the applicant had been attacked by another prisoner after being sentenced, and that he had suffered serious burns to his body.[67]
[67]Fresh evidence of additional hardship to an applicant after having been imprisoned may be received in limited circumstances. Such evidence is in any event admissible once the sentencing discretion has been reopened. See R v Duy Duc Nguyen [2006] VSCA 184.

The prison records show that on 21 December 2007 the applicant was assaulted by a fellow inmate, having had boiling water poured over his upper torso. He had widespread burns to many parts of his body. He was also struck about the head, and suffered lacerations and bruising. The photographs of his injuries confirm extensive scalding over large parts of his body, and it may reasonably be inferred that there will be some residual effects, though the scale of these is difficult to assess.

In these circumstances, we are of the view that a different, and significantly lower, non-parole period is justified. We would set aside the non-parole period of four years that her Honour fixed and substitute in lieu thereof a non-parole period of three years. We would not interfere with the head sentence.

We should add for the sake of completeness that s 6AAA of the Sentencing Act has no application to this appeal. [68]
[68]R v Johnston [2008] VSCA 133.

[2008] VSCA 182

19 September 2008