R v Gunawardena
[2007] VSCA 43
•19 March 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 108 of 2005
| THE QUEEN |
| v |
| YASAS HIRANGAN GUNAWARDENA |
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JUDGES: | MAXWELL P, EAMES JA and COLDREY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 August 2006 | |
DATE OF JUDGMENT: | 19 March 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 43 | |
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CRIMINAL LAW – Conviction – Rape – Whether applicant aware complainant was not consenting or might not be consenting – Direction to jury – Burden of proof – Whether jury could properly have drawn inference of relevant state of mind from available evidence – Directed acquittals on some counts – Whether evidence relating to counts for which directed acquittals ordered should have been left to the jury in assessing remaining counts.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr W E Stuart | Victoria Legal Aid |
| For the Crown | Mrs C M Quin | Ms A Cannon, Solicitor for Public Prosecutions |
MAXWELL P:
In the early hours of 6 October 2002, H was working as a prostitute in St Kilda. A car with two men in it pulled up beside her. She quoted prices for sexual intercourse and oral sex, and the men agreed. H got into the car and was driven to a car park at the Sandringham foreshore. After parking the car, one of the men produced a sharp instrument and held it to H’s throat. She said to them, “Do whatever you have to do, but don’t hurt me”. She tried to get out of the car but the child lock was on.
The first two men (hereafter “male 1 and male 2”) had vaginal sex with H. During the second rape, H heard male 1 talking on his mobile phone. After male 2 had finished, H began to get dressed but then saw a second car arrive. One of the men held the sharp instrument to her neck again and said, “What do you think you’re doing?”. She replied, “I’m getting dressed”, and was told, “No, you’re not, we’re not finished with you yet.” Three men (“males 3, 4 and 5”) then got out of the second car. In turn, each of them had sex with H – variously vaginal, digital and oral.
DNA testing was subsequently carried out on a number of items, including a discarded condom, discarded tissues and swabs from H’s vagina and breasts, and comparisons were made with a sample provided by the applicant. In each of those four items, there was DNA which matched the applicant’s DNA. That is, the testing could not exclude the possibility that the DNA belonged to the applicant. In relation to the vaginal swab, it was 98 million times more likely that it was the applicant’s DNA than any other person’s.[1] In relation to the breast swab, it was at least 340,000 times more likely that it was the applicant’s DNA than any other person’s.[2]
[1]T 138.
[2]T 139.
The presentment contained eight counts against the applicant. The first five counts related to conduct by the occupants of the first car, males 1 and 2. They comprised three counts of rape or attempted rape, one count of armed robbery and one count of unlawful imprisonment.
The prosecutor opened the case to the jury on the basis that the applicant was one of the two men in the first car. In the statement which H had given to police, she said that her breast had been licked by either male 1 or male 2, and there was a DNA match between the applicant and the swab taken from H’s breast. When H gave her evidence, however, she said nothing about any oral contact with her breasts by either male 1 or male 2. The only link with the first car could not, therefore, be established.
At the conclusion of the Crown case, the Judge raised with counsel (in the absence of the jury) his view that:
“[T]he evidence implicating the accused establishes that he was present at the time but not whether he arrived in the first car or the second car. If he arrived in the second car he could not be implicated in offences involving 1 and 2 but could … be implicated in the offences involving 3, 4 and 5.
…
Accordingly, it would seem to me to be open to the jury to convict the accused in respect of the offences involving 3, 4 or 5 but not 1 and 2 and not [of taking] part in the armed robbery or the false imprisonment …”[3]
Further, his Honour said:
“[I]t would seem to me that the only evidence implicating the accused is that he was one of five males who participated in sexual activity. The Crown cannot establish that he arrived in the first car. Accordingly, he can only be implicated as a person acting in concert or aiding and abetting in respect of the offences that occurred when all five were present. They are only charges 6, 7 and 8.”[4]
[3]T 203-4.
[4]T 211.
The prosecutor then conceded that there should be directed acquittals on counts 1─5 inclusive.[5] The jury returned guilty verdicts on the three remaining counts of rape. Following amendment, each count of rape alleged that the applicant or a person unknown had sexually penetrated H. In each case, the applicant was either the perpetrator or complicit.
[5]T 219.
The Judge sentenced the applicant to four years’ imprisonment on count 6 (vaginal penetration), four and a half years on count 7 (oral penetration) and three and a half years on count 8 (digital penetration). He ordered that one year of the sentence on count 6 and nine months of the sentence on count 8 be served cumulatively upon the sentence on count 7, producing a total effective sentence of six years and three months’ imprisonment. The Judge ordered that the applicant serve a minimum period of four years before becoming eligible for parole.
The applicant seeks leave to appeal against his conviction. At the commencement of the hearing, leave was granted to substitute an amended statement of grounds, which included some only of the original grounds (on which the written outline of submissions was based) and added certain new grounds. I deal with the grounds in the order in which they were argued.
The applicant’s state of mind
Grounds 3, 4 and 5 are in these terms:
“3. The learned trial Judge reversed the onus of proof by leaving to the jury the Crown case that if the Applicant arrived in the second car after the events concerning Counts 1 to 5, he ‘… had no basis for believing that H was in any way consenting to sexual intercourse with him.’
4.The learned trial Judge erred when he directed the jury about inferring the Applicant’s state of mind ‘… Normally it is proved by saying, well, this is what the person did, therefore he must have had the state of mind, and that is the case here.’
5.The learned trial Judge erred when he directed the jury ‘… but the perpetrator knew that she was not consenting or was careless as to whether she was consenting or not, and that is the state of mind which has to be proved in a rape case’.”
In his charge, the trial Judge told the jury that they had to be satisfied, beyond reasonable doubt, of three things, namely that –
(i) the applicant was present at the time of the incidents founding counts 6, 7 and 8;
(ii) the particular rapes alleged in those counts occurred at the hands of a member or members of the group of which the applicant was a part; and
(iii) the applicant was, in relation to those rapes, either the actual perpetrator or a person implicated.[6]
[6]T 261-2.
There is now no issue about any of these points. Mr Stuart, who appeared for the applicant on this appeal, conceded that the jury were entitled to be satisfied beyond reasonable doubt that the applicant was present at the scene not later than when the second car arrived. This was, with respect, a sensible concession. The DNA evidence was overwhelming. It demonstrated that the applicant was present and that he had taken part in an act of vaginal penetration. Nor was it disputed that the jury were entitled to be satisfied that the applicant was either the perpetrator of, or a person implicated in, the sexual acts founding counts 6, 7 and 8.
The issue raised by these grounds concerns the state of mind of the applicant and whether the Judge misdirected the jury as to what had to be proved in that respect. The Judge directed the jury that the crime of rape –
“does require, before it can be proved, that a certain state of mind be in the mind of the perpetrator or a person who is charged as what we call acting in concert or aiding and abetting … The law does require a certain guilty state of mind, and I will refer to that when I discuss the offence of rape shortly. Most crimes do require the Crown to prove a particular state of mind, a particular guilty mind, and this is no exception.
In most cases the Crown seeks to prove the guilty state of mind by asking the jury to draw an inference as to what the state of mind must be. …
Seldom is there evidence about the actual state of mind the person might have had, from that person. Normally it is proved by saying, well, this is what the person did, therefore he must have had the state of mind, and that is the case here [Ground 4]. In other words if someone sticks a knife into someone else it is not hard to draw an inference that they intended to cause serious injury. It may not have been the reason they did it but they nevertheless must have intended to cause serious injury because everyone knows if you put a knife into someone else it is going to cause serious injury.
It is the same, equivalent with a rape charge. If a person, depending on the circumstance, the Crown says, and says here, that by reason of the circumstance in which the act occurred, you can have no doubt whatsoever that not only did the particular perpetrator in each of these incidents know that the victim was not consenting, but were, rather – not only was she not consenting but the perpetrator knew that she was not consenting or was careless as to whether she was consenting or not, and that is the state of mind which has to be proved in a rape case [Ground 5].
I will come back to that but for present purposes all I am saying is that you are entitled to draw an inference as a conclusion of fact to be drawn from other facts that are established to your satisfaction. So if you are satisfied about the circumstance in which an incident occurred you are entitled to draw an inference as to the state of mind of any perpetrator, and that is what the Crown says here.
But you must only draw an inference adverse to the accused in a criminal case if you are satisfied that it is the only inference reasonably open. If there is any other inference reasonably open then you would not be satisfied about the guilty state of mind and would therefore not draw that conclusion. I will put that in context when I come to explain the element[s] of rape, which is what I will do shortly.
So, members of the jury, that is basically the directions of law that apply to criminal trials generally, but what I intend to do now is to turn to the offence of rape and explain what is meant by this.”[7]
[7]T 258-260 (emphases added).
Mr Stuart took issue with this part of the charge. First – and this is the basis of ground 4 – he described as “devastating” the analogy which the Judge drew with intentionally causing serious injury and, in particular, the Judge’s statement that –
“everyone knows if you put a knife into someone else it is going to cause serious injury.”
According to Mr Stuart, when his Honour then said that “it is the same… with a rape charge”, the jury would have taken the Judge as meaning something along the following lines:
“The accused must have intended to rape H because everyone knows that if you have sex with a woman who is not in fact consenting you are intending to rape her”.
According to the submission, this direction had the effect of removing altogether the need for the jury to consider whether they were satisfied beyond reasonable doubt that the accused had the requisite guilty state of mind.
Secondly – and this is the basis of ground 5 – Mr Stuart draws attention to the Judge’s description of “the state of mind which has to be proved in a rape case” as being whether –
“the perpetrator knew that she was not consenting or was careless as to whether she was consenting or not.”
It was submitted for the applicant that the word “careless” invited the jury to apply an objective test, that is, to consider whether the applicant had taken reasonable care to ascertain whether or not H was consenting. Like the “everyone knows” comment, Mr Stuart argued, the reference to carelessness tended to divert the jury from their proper task of considering what had to be demonstrated about the applicant’s actual state of mind.
Thirdly – and this is the basis of ground 3 – issue is taken with the Judge’s description (later in the charge) of the Crown case as being that the applicant –
“… was one of the three men who arrived in the second car and had no basis for believing that H was in any way consenting to sexual intercourse with him.”[8]
This was said to have amounted to a reversal of the onus of proof.
[8]T 266.
In my opinion, each of these grounds should be rejected. Individually and collectively, these grounds exemplify the fallacy of taking particular words and phrases out of context and attributing to them a significance which, when read in the context of the charge as a whole, they simply do not bear.[9]
[9]See eg R v Schonewille [1998] 2 VR 625 at 631 per Winneke ACJ.
The passage of the charge containing the impugned statements (giving rise to grounds 4 and 5) was expressed to precede, and did precede, the directions which the Judge gave about the mental element which had to be proved for the offence of rape. What his Honour said about inferential reasoning was expressed to be a statement about reasoning in criminal matters generally, and he was correct to say that inferential reasoning was applicable to a rape case as to any other. I reject the criticism directed at the example which his Honour gave (of intentionally causing serious injury) and at the “everybody knows …” statement. At first blush, this might seem an unhelpful analogy. Whereas the mere act of stabbing a person will usually justify the inference that there was an intention to cause serious harm, the mere act of sexually penetrating a person who is not consenting justifies no inference that the perpetrator knows, or even suspects, that there is a lack of consent. But when the full passage is read, it is quite clear that his Honour was not drawing any such parallel. Rather, any inference to be drawn was to be drawn not from the commission of the act but “by reason of the circumstance in which the act occurred”. Ground 4 therefore fails.
As to ground 5, any misconception which might have been created by the use of the word “careless” was comprehensively dispelled by the direction which the Judge gave – in the immediately succeeding section of the charge – about the mental element in rape. His Honour said this:
“Finally, the Crown must prove the guilty mind of the accused. The Crown must prove that the accused – and here I am talking about, for the moment, the perpetrator, although [for] the person implicated with the perpetrator, the same state of mind must exist – that the perpetrator intended to commit the crime of rape in the sense that at the time of the act of sexual penetration, he was aware that she was not consenting, or else realised she might not be consenting and determined to have sexual penetration whether she was consenting or not.
So the guilty mind does not require actual knowledge that she was not consenting. Realisation that she might not be consenting, but a determination to have sexual penetration whether she was consenting or not is sufficient for the appropriate guilty state of mind.
In determining whether the accused or a perpetrator believed that she was consenting, you must take into account whether the belief was reasonable in all the circumstances. That is one of the guides which you may consider in determining the fundamental question, ‘What was the state of mind of the perpetrator at the time of the act of penetration?’ Did he intend to commit the crime of rape in the sense that at the time of penetration he knew that the other person was not consenting, or being aware that she might not be consenting, persisted or not?
So the Crown must prove the sexual penetration, the absence of consent and the appropriate guilty state of mind.”[10]
[10]T 264-5.
This direction was, with respect, exemplary. It was succinct, clear and correct.[11] The jury were left in no doubt that:
·the Crown bore the onus of establishing beyond reasonable doubt that the applicant had the requisite guilty state of mind; and
·actual knowledge apart, the applicant could only be convicted if the jury were satisfied beyond reasonable doubt that he was aware that H might not be consenting but determined to have sexual penetration whether she was consenting or not.
[11]See Crimes Act 1958 ss 37(1)(c), 38(2)(a).
The first of these points disposes of ground 3. As to the second point, it was conceded on behalf of the applicant that if the Judge had used the word “reckless” instead of the word “careless” in the passage complained of, there would have been no error. In this context, in my opinion, this was a distinction without a difference. When his Honour used the phrase “careless as to whether she was consenting or not”, I have no doubt he meant “determined to have sexual penetration whether she was consenting or not”. The subsequent direction makes that clear. So understood, the adjective “careless” flagged the correct question about the applicant’s subjective state of mind, which the Judge subsequently spelt out for the jury.
There being no admissions by the applicant, and no possibility of identifying him as the perpetrator of any particular act of sexual penetration, the jury were inevitably required to consider what conclusion they might draw about his state of mind from the objective circumstances. Those circumstances were that the applicant was present not later than the arrival of the second car and had vaginal sex with H as one of the second group of men (3, 4 and 5).
What the jury had to decide, as the Judge correctly told them, was what they could infer from what the applicant had been shown to have done, in those circumstances. In accordance with the directions they had been given, the jury had to ask themselves the question:
“Can we be satisfied beyond reasonable doubt that when he sexually penetrated H, he was aware that she was not consenting or realised that she might not be and determined to go ahead not caring whether she was or was not consenting?”
There was no error in the directions.
The benefit of the directed verdicts of acquittal
Grounds 1 and 2 are in these terms:
“1.The learned trial Judge erred in leaving to the jury the Crown case that the Applicant participated in events concerning Counts 1 to 5, which were not proven beyond reasonable doubt and were the subject of directed verdicts of acquittal, as evidence of the guilt of the Applicant on Counts 6 to 8.
2.By reason of the matters referred to under ground 1 the learned trial Judge failed to give full effect to the directed acquittals on Counts 1 to 5.”
After defining the elements of the offence of rape, the Judge went on to deal with the question of whether the applicant was present, in the following terms. (Complaint is made about the highlighted passage):
“As you will appreciate in this case, the Crown says that in respect of the three acts of rape upon which it relies, the accused was either the perpetrator or otherwise implicated by reason of his association and involvement in this offence. The Crown says that the accused was one of the five men who arrived in either the first car or the second car, and that it accepts that it cannot prove that he was one of the men in the first car. But if he wasn’t in the first car, then he was in the second car, and if he was in the second car, he was present when the three offences set out in Charges 6, 7 and 8 were committed.
You will appreciate, of course, now, from the comments that I made when I told you that the first five counts were not before you, that you are not considering the offences alleged against the two men who H says picked her up and took her down to the Sandringham car park. But the Crown says that does not mean that account is irrelevant because the accused was either one of those two men, or one of the three men. The Crown says that if he was one of the first two men, then he had the knowledge of what occurred, the production of the knife, et cetera, or the sharp object, whatever it was, she was not able to identify it, and all the circumstances there, or he was one of the three men who arrived in the second car and had no basis for believing that H was in any way consenting to sexual intercourse with him. So the Crown says he was one of those five present. You would need to be satisfied beyond reasonable doubt that he was present in respect of any offence before you would be entitled to return a verdict of guilty against him.
But the law is that persons who are present, but are not the actual perpetrators of offences, can be guilty of those offences because of their presence, but as [defence counsel] emphasises, not just their presence, but their presence and either because they were as part of an agreement and the person acting as part of an agreement or they were aiding and abetting, as it is called.”[12]
[12]T 265-6 (emphasis added).
The further passage complained of is in these terms. (Again, it is the highlighted passage which is the subject of the complaint):
“What the Crown says here, is that you should infer from all the circumstances, the first two arriving, the telephone call, the second car arriving, could only be done, and the immediate participation in a sexual act upon a female taken to the scene in the first car, that the only inference reasonably open is that stated or otherwise, there must have been some form of agreement between the five perpetrators of sexual offences. There must have been some form of, it might not have been spelt out, but they knew what was going on, they were all party to what occurred here, and my comment to you is that that is a matter entirely for you, as to whether you draw that conclusion or not, but if you do it would be a proper one and open to you on the evidence.
This is the way the case was opened to you, that there was an agreement between the five persons, and you must be satisfied beyond reasonable doubt of course, that the accused man was one of those five persons and was a party to that agreement. So in that way a person can be guilty of an offence in respect of which someone else is the actual perpetrator.”[13]
[13]T 268 (emphasis added).
Mr Stuart submitted that the effect of this passage was to deny to the applicant the full benefit of the directed acquittals on counts 1 to 5. Taking the second passage first, Mr Stuart argued that the directed acquittals on the first five counts (relating to the conduct by male 1 and male 2) were not reconcilable with what he described as “the prior agreement hypothesis”. By this he meant the proposition that an agreement was arrived at between the five men before the first two picked up H in the car. If there had indeed been a prior agreement, he argued, then even if the applicant arrived in the second car he would still have been guilty of the rapes committed by males 1 and 2, since the prior agreement would have rendered him a person acting in concert with them.
As to the first of the impugned passages, Mr Stuart submitted that his Honour left open before the jury the Crown’s proposition which was that, if the applicant was in the first car, then of course he had knowledge of the production of the knife and the associated circumstances. The applicant having been acquitted of the counts relating to that part of the sequence of events, this should not have been left.
In my opinion, Mrs Quin for the Crown was correct in submitting that the Judge was not referring to a prior agreement but rather to an agreement arrived at at the time of the mobile phone call made by male 1 and male 2, as a result of which the second car arrived. His Honour at no point attributed to the Crown the contention that all five knew in advance what was going to happen. Rather, the Crown contention was said to be that males 3, 4 and 5 knew “what was going on”. The (amended) case against the applicant was that he arrived in the second car in response to the phone call, in which (it had to be inferred) he and the other two were told “what was going on” and were invited/encouraged to attend.
That the kind of agreement being postulated by the Crown was an agreement made in connection with the arrival of the second car (and not a prior agreement) is reinforced by the following direction, which was given after exception had been taken by defence counsel:
“You will recall that I said it would be open to you to infer that in all the circumstances of this case, that there was an agreement to participate in a sexual act from the circumstances as they were on the evening in question.
As was pointed out by [defence counsel] in the course of her address, she put it to you that you cannot reject the hypothesis that the only knowledge that the persons arriving in the second car would have had was that a prostitute was available for sexual acts. The position that are (sic) not mutually exclusive of course as is obvious from this case, simply because a person is a sex worker does not mean that they are not capable of being raped, and of course that is the case here and it has been obvious from the time the case started.
But what [defence counsel] put to you is that you cannot be satisfied beyond reasonable doubt that any agreement between the persons, the three who arrived in the second car, was an agreement to participate in sexual acts without the consent of the victim, because it may well be that the agreement so far as they were concerned was an agreement to engage in sexual acts with a person who was a prostitute and willing to engage in sexual acts with persons with whom she was not acquainted. So to be satisfied beyond reasonable doubt that the accused is implicated as a person acting in concert with the perpetrator, you would need to be satisfied that the agreement was one whereby sexual acts would take place without the consent of the victim.”[14]
[14]T 272-3.
Defence counsel required this specific direction precisely because the issue in the trial about acting in concert did not concern a prior agreement but, rather, the nature of any “second car” agreement. It would, I think, have been preferable had the Judge made no reference to the alternative possibility (that the applicant was in the first car and hence knew about the knife), since that possibility was no longer before the jury following the directed acquittals. But there was, in my view, no risk that the jury would have regarded the first alternative as open. More generally, there was no risk of the applicant being treated as guilty of any of the first five counts.[15]
[15]cf R v Storey (1978) 140 CLR 364 at 424-5 per Aickin J.
The Judge was at pains to remind the jury, repeatedly in the course of the charge, that the prosecution could not establish that the applicant was in the first car. This is well-illustrated by what his Honour said in the subsequent part of his direction dealing with aiding and abetting as an aspect of complicity:
“Firstly, if you intentionally help another to commit the crime, or secondly, encouraging the other to commit the crime by your words or presence and behaviour, or thirdly, intentionally conveying to the other by words or presence and behaviour, and assent to and concurrence in the commission of the crime, then in any of those three ways a person may be aiding and abetting the person who commits the crime and therefore implicated in the commission of the crime.
The Crown says in either of those two ways, all five who were present were guilty of all offences of rape in respect of which they were present. In other words, the Crown says the first two persons who arrived are guilty of five counts of rape, and the other offences, the armed robbery and the false imprisonment, but we cannot prove whether the accused man was one of those first two. But the second three that arrived, they are guilty of the three counts of rape that took place after they arrived, and in which they participated either as perpetrators or as persons acting in concert, or aiders and abettors.
Therefore the bottom line is, you must be satisfied beyond reasonable doubt, says the Crown, that the accused man, if not in the first car was at least in the second car, because his presence is proved beyond reasonable doubt and therefore he must have been implicated in those three final offences, even though we cannot prove whether he was a perpetrator or one of the others in any particular instance.”[16]
[16]T 269 (emphasis added).
The statement that the Crown could not prove that the applicant was one of the first two to arrive was made to the jury, in clear terms, on four other occasions.[17] Likewise, the Judge clearly identified, on numerous occasions, that the only counts which the jury were to consider were those relating to events which occurred after the second car arrived.[18]
[17]T 227.25, 256.15, 265.21 and 285.8.
[18]T 227-8, 260.22-33, 261.14-15, 261.27-8, 265.24-28, 269.27, 278.17-20, 285.10, 285.29 and 287.22.
Once again, a reading of the charge as a whole demonstrates that these grounds are not made out.
Aggregate of errors
Counsel for the applicant relied, in the alternative, on the “aggregate of errors” ground.[19] It follows from my conclusions on the substantive grounds that this ground also fails.
[19]R v Kotzmann [1999] 2 VR 123 at 157 and the cases cited therein.
Application of the proviso
In the course of oral argument, Mrs Quin for the Crown argued that if, contrary to the Crown’s submissions, the Court was satisfied that there was error in the charge, the appeal should nevertheless be dismissed by application of the proviso. By leave of the Court, written submissions were subsequently filed on both sides dealing with the application of the proviso.
In view of my conclusion that there was no error, it is unnecessary to consider the application of the proviso. Since, however, the Court has had the benefit of argument on the point, I will state briefly my reasons for concluding that – had error been shown – the proviso would have been applicable.
The question to be asked in applying the proviso is whether the applicant was proved beyond reasonable doubt to be guilty.[20] The only live issue in this case concerned the applicant’s state of mind. It was clear that he was present and that he had participated in an act of vaginal penetration with H. On the only assumption which can safely be made, namely that he arrived in the second car, the question is whether on the evidence the jury ought to have had a reasonable doubt as to whether the applicant either knew that H was not consenting or was aware that she might not be and decided to proceed whether or not she was consenting.[21]
[20]R v Weiss (No 2) (2006) 164 A Crim R 454 at [115].
[21]Ibid at [103]-[106].
Having read the entire record of the trial, I do not consider that the jury should have had a reasonable doubt. Quite properly, defence counsel asked the Judge to direct the jury to consider the possibility that the later arrivals knew only that there was an available prostitute who had already provided services to the first two. On the appeal, counsel for the applicant argued that there was nothing in the circumstances, as they existed from the time of the arrival of the second car, which would have made the applicant aware that H might not be consenting.
I disagree. In my opinion, the circumstances of the applicant’s participation were such as must inevitably have raised a question in his mind as to whether H might not be consenting. It was 4:30 in the morning, at an isolated spot. The applicant knew that others had already had sex with H, and he then joined in, as one of three who in quick succession had sex with H. There was nothing to suggest that the applicant had been asked to make, or made, any payment to H. In that setting, the notion that H was a willing participant – in a succession of different sex acts, with five different men, one after the other – was improbable in the extreme.
In the alternative, Mr Stuart relied on a passage from the High Court decision in Weiss recognising that a retrial may be directed –
“… even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.”[22]
Mr Stuart submitted that “significant procedural fairness” was denied to the applicant because –
“the jury were given directions which reversed the onus of proving guilty belief, misstated how they could infer a guilty mind, permitted them to use evidence which was inadmissible for that purpose, where carelessness was initially presented as being sufficient to satisfy this element.”
He relied, in short, on the matters the subject of the substantive grounds of the application.
[22](2005) 224 CLR 300 at [45].
In my opinion, none of those grounds raises an issue of procedural fairness. They all raise questions going to the substantive fairness of the trial, that is, whether there was a miscarriage of justice. For the reasons I have already given, I am satisfied that there was no miscarriage of justice.
Accordingly, the application for leave to appeal against conviction should be refused.
EAMES JA:
For the reasons given by the learned President, I agree that the application for leave to appeal against conviction should be refused. I agree, too, with the observations made by his Honour in concluding that if any of the grounds of appeal had been made out this would have been an appropriate case for the application of the proviso to s 568(1) of the Crimes Act 1958.
COLDREY AJA:
I agree that this application for leave to appeal against conviction should be refused for the reasons advanced by Maxwell P.
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