R v Mathe

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 118 of 2001

THE QUEEN
	v.
MICHAEL MATHE

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2003
DATE OF JUDGMENT:	29 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 165

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CRIMINAL LAW – Abduction and rape (digital) – Whether verdict cannot be supported - Whether judge ostensibly biased – Whether, where rape count depended on evidence of heroin-affected complainant alone, judge’s conduct and charge led to a miscarriage – Appropriate scope of comment on evidence by trial judge – Whether address by counsel merited censure by judge - Whether record of interview should have been excluded as unfair because offender not initially informed rape alleged was digital – Whether lies told in interview before offender so informed available as evidence of consciousness of guilt – Whether complainant’s observed distress capable of confirming her evidence - “Circumstances of [the] offence” – Crimes Act 1958, s.464A(2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr N. Crafti (Pro Bono)	Victoria Legal Aid

BATT, J.A.:

On 3 May 2001, on the eighth day of a trial in the County Court at Melbourne, the applicant, who was born on 1 July 1962, was found guilty by a jury of one count of abduction[1] and one count of rape. The applicant admitted four previous convictions and two previous findings of guilt from three court appearances. None was for a sexual offence. The maximum penalty for abduction was imprisonment for 10 years and for rape, imprisonment for 25 years.
[1]In the form of taking away the complainant by force with the intention that she should take part in an act of sexual penetration with him, he being treated as “another person” within s.55(b) of the Crimes Act 1958.

On the following day the judge heard a plea in mitigation of penalty. The prosecutor tendered a victim impact statement and counsel for the applicant called one witness.

On 11 May 2001 his Honour sentenced the applicant to be imprisoned for two years for abduction (count 1) and three years for rape (count 2) and directed that nine months of the sentence imposed in respect of count 1 be served cumulatively upon the sentence imposed in respect of count 2, making a total effective sentence of imprisonment for three years and nine months, and fixed a non-parole period of two years and six months. He also made a declaration of eight days’ pre-sentence detention.

On the same day the applicant filed a notice of application for leave to appeal against conviction on the following grounds:

1.That the verdicts are unsafe and unsatisfactory in all the circumstances of the case.
2.That the trial miscarried by reason of procedural unfairness afforded to the accused.
3.That the Learned Trial Judge conducted the trial in such a manner that a reasonable observer might have concluded that his Honour was biased against the accused.
4.That the Learned Trial Judge was in error in failing to exclude the record of interview or parts thereof.
5.That the Learned Trial Judge was in error in allowing the Crown to use evidence of lies as evidence of consciousness of guilt.
6.That the Learned Trial Judge was in error in directing the jury that lies of the applicant could be used as evidence of consciousness of guilt.
7.That the Learned Trial Judge was in error in telling the jury that there was evidence capable of supporting the complainant.
8.That the Learned Trial Judge misdirected the jury on the law relating to supporting evidence.

On that day the applicant also filed a notice of application for leave to appeal against sentence on the grounds that the sentence was manifestly excessive and that the judge was in error in equating digital rape with penile rape.

Before considering the applications, it is necessary to state in outline the case against the applicant put by the Crown and accepted by the jury. On the evening of 22 September 2000 the applicant was waiting for a train at the Dandenong railway station. He was intending to travel to the Narre Warren railway station, being the nearest station to his home. He observed the complainant at the Dandenong railway station. She was, in effect, waiting for the same train as she was intending to travel to the Hallam railway station, the station closest to her sister’s home in Hampton Park, where she had spent the previous night and intended to spend that night. Hallam is the station immediately before Narre Warren.

The complainant, who was aged 26 at the time, had had four or five pots of beer earlier that evening and had, since shortly after 4 o’clock that afternoon, injected herself with heroin on three separate occasions, once in the toilets at Spencer Street railway station (10-15 mls), once in the toilets at the Tavern in Melbourne (about 10 mls) and once in the toilets at the Dandenong railway station (about 10 mls).

The applicant believed or became aware that the complainant was affected by some thing, whether a drug or alcohol or both, and that caused him to sit beside her and engage her in conversation. They both travelled by train to Hallam railway station and alighted there. The complainant tried unsuccessfully to phone a housemate, and then a taxi, from the station to collect her. She and the applicant then began walking along the footpath in Hallam Road arm-in-arm. The applicant kissed the complainant twice on the neck. She did not respond to the advances.

The applicant dragged the complainant by her arm from the footpath into a ditch or gully running parallel to the footpath. He pushed her to the ground and forcibly removed her lower garments, which were torn in the process, her jeans severely so. The complainant was telling the applicant, “No” repeatedly and was pushing against him with her hands and kicking against him with her feet. The applicant inserted a finger into her vagina and at about the same time was trying to undo the zipper of his jeans. As he was trying to do so, the complainant was able to punch him in the face. He then desisted and absconded.

The complainant found her jeans and underwear and re-arranged her clothing as well as she could, returned to the footpath and commenced walking towards Hampton Park. She was barefooted, having put her shoes in her bag. She was crying and very distressed. She was approached from behind by a young man, Boris Cacic, who was walking home in the same direction. He provided her with considerable assistance and, after eventually ascertaining the address of her sister’s house, took her there. When he had left the station and had begun walking along the footpath, he initially thought he was alone. He had a good line of vision along the footpath but did not see the complainant. Then he suddenly saw her walking along the footpath at least 50 metres ahead. (This is consistent with her having come up out of the ditch or gully.) She appeared to him to have been affected by some substance. She had torn clothes and was crying, distraught. She told him that “someone tried to rape me”. She later told Cacic that the person was someone she had met at the Dandenong station.

The complainant noticed that her bracelet, belly chain (apart from a few pieces she had found after the attack) and mobile phone were missing as a result of the attack in the gully. She had been wearing the bracelet on her right wrist and carrying the mobile phone by means of a carrying cord over that wrist. The next morning she and her sister returned to the scene to look for the missing items. They found an area of long grass which had been flattened about six or seven metres from the footpath. The complainant found the belly chain (in three or four pieces) and the bracelet. She and her sister also found some broken cigarettes on the ground, which had fallen from a packet she was carrying at the time of the attack. The mobile phone was not recovered. The complainant and her sister returned home and reported the matter to the police.

The complainant was examined by Dr. Jakubowicz on 23 September. Recent injury included a reddening around her right wrist in a circumferential pattern, consistent with a bracelet being ripped off. The wrist was tender. The complainant was also sore and tender down her left thigh. There was no obvious bruising. There was no objective evidence of injury to the genital region. Dr. Jakubowicz stated that the absence of trauma to that region did not indicate that penetration had not occurred. He took a vaginal swab. But the swab and a buccal swab taken later from the applicant, were never analysed.

The prosecutor tendered as an exhibit and had played to the jury a composite video tape of recordings from security cameras at Spencer Street, Dandenong, Hallam and Narre Warren railway stations at the times when the complainant or the applicant or both were present at those respective stations.

The applicant was arrested on 6 October and interviewed by police later that day. During most of the interview he denied that he had been in the ditch or gully, that he had had any physical contact with the complainant and that he had removed her lower clothing. Towards the end of the interview the applicant made admissions as to those matters but denied the commission of any offence. Indeed, although in the first two tapes on which the interview was recorded the applicant maintained that he remained on the platform while the complainant[2] walked across the railway tracks and that he boarded the next train to Narre Warren, he admitted in the third tape that he crossed the railway line, walked up the road with the complainant and pushed her on to the grass, that she said “No”, that he pulled off her pants and underwear, and that he was “all worked up”, but said that then he realised that she really was not consenting and he did not go any further. He conceded that she was struggling and pushing him away, claimed that she apologised for leading him on, stated that he was ashamed, denied penetrating her vagina with his finger, but did admit rubbing his hand against her pubic hair. He had not removed any of his clothing. He denied taking her mobile phone.
[2]Some questions and answers, taken by themselves, may have suggested he did so too, but that was not the tenor of the interview as recorded on the first two tapes taken as a whole.

The applicant gave evidence at his trial and called no other evidence. It is necessary for a proper consideration of some of the grounds to give an outline of the applicant’s evidence. He said that he sat down next to the complainant on the Dandenong platform and that they had a conversation in which she stated that she had used heroin and drunk beer that day. She appeared tipsy. She put her arm around him. They boarded the train and were arm-in-arm by this stage. After disembarking at the Hallam station, the complainant made the two unsuccessful telephone calls of which she gave evidence. They then began walking up Hallam Road on the footpath, arm-in-arm. On several occasions they stopped and kissed for a couple of minutes. He was still kissing the complainant when they reached the gully. He assisted her down into the gully. They kissed some more on the grass, lying down. The applicant unbuttoned and pulled down the complainant’s pants, including her underwear. She had not resisted by that stage. However, in the process, the pants ripped and the complainant told him to stop. She said that she preferred females. He did not go any further. He had not removed any of his clothes or attempted to undo the zip of his trousers. He denied rubbing or touching her pubic area and denied penetrating her vagina with his finger. He denied that the complainant punched him in the face. She did not hit or strike him in any way. He apologised for ripping her jeans. The contact was consensual. The complainant had been passionately kissing him immediately prior to entering the gully.

The applicant said that, when he was arrested, he was informed that he was being arrested for rape. He believed that meant penile (vaginal) rape. He said that when he was interviewed he was nervous and had very low concentration levels. He admitted that some of his answers were not accurate. He admitted lying initially about not walking down Hallam Road with the complainant, attributing this to being nervous from being charged with an offence and knowing that it was not true.

The applicant was extensively cross-examined. He gave several answers favourable to the Crown case, some only of which need be mentioned. He admitted lying to the police about a number of things in the first two tapes. He also admitted to lying in the interview in some respects and to giving in it a different version on certain matters from that which he gave in court. He said that at the time when he moved down into the gully with the complainant he intended to have consensual intercourse with her, though he denied that that was his intention at the time of leaving the footpath. He did not know why he took her into the gully. He maintained that he picked the complainant up and carried her into the gully, though he conceded that he did not mention that to the police. He conceded that the account given to the police in the third tape differed from the account given on oath before the jury, stating that the former was not truthful. He steadfastly denied that he had digitally penetrated the complainant. He maintained that he apologised to her for ripping her pants and not for any other conduct. In re-examination he said that his conduct in the gully had been spontaneous and all that transpired was consensual.

Conviction ground 1

In support of this ground it was submitted that the complainant was a wholly unreliable witness whose evidence should not have been accepted beyond reasonable doubt by the jury, for three reasons. First, she was by her own admission affected by a combination of heroin and alcohol. Besides the facts already stated, reference was made to the fact that the last self-injection of heroin occurred shortly before the alleged rape; to her statement that after that injection she was “just relaxed, ... a bit tiddly from drinking as well”, whilst in cross-examination she said that after her “last whack” she was “off [her] face”; and to the fact that she had not used heroin for the previous eight months. Secondly, she was unable to recall much of the lead up to what she alleged happened. Thus, she could not remember much about the train trip from Dandenong to Hallam, whether she had difficulty getting off the train, or whether there was any conversation before walking from the train. She did not recall being arm-in-arm with the applicant, and could not remember if she was attracted to him, “because I was off my face”. Thirdly, the account she gave the police was demonstrated to be inaccurate by the video tape of part of the time spent on railway platforms and she conceded the account was inaccurate. In amplification it was pointed out that she agreed that much in her statement was inaccurate, including telling the police that she met the applicant on the train after leaving Spencer Street and before reaching Dandenong; that she made no mention to the police of boarding the Hallam train with the applicant arm-in-arm; that she said in court that she could not recall dropping her bag or her cigarettes falling out, whereas she agreed that she had told the police that that had occurred; and that she said in evidence that she was not assisted by the applicant in picking up cigarettes, whilst she conceded that she had told the police that he had assisted her. It was said that, significantly, the last two matters were not corrected by the complainant when she was asked in cross-examination if there were any errors in the statement to the police. Certain other matters were also relied on, such as an inconsistent answer about syringes, her allowing the applicant to kiss her twice without reproof (though she considered the advance unwelcome), that she did not use the word “rape” as part of her complaint to the police and did not at the time know its precise meaning[3], whereas she used the word to the witness Cacic; and that the police made a conscious decision not to have the swabs forensically tested, though Dr. Jakubowicz said that it was possible, albeit unlikely, that the insertion of a finger in the vagina could leave a DNA trace. Counsel did not persist in relying on the complainant’s being scared of her sister and her father, one of the other matters listed in the outline of argument, because that was not put to her as a reason for fabricating the allegations.
[3]But her answer that it was any sort of penetration seems close to the mark.

In drawing together orally the strands of the argument, counsel submitted that the Crown case had to stand or fall on the complainant’s evidence, contending that none of the other evidence relied on by the respondent meant anything without her evidence. It was claimed that under cross-examination she sought to retreat from every inconsistency on the ground that she was “off her face”. Further, it was submitted, if she was in that state, that made the conviction unsafe. Her mistakes had the character of a loss of attention. The conscious decision of the police not to have the swabs analysed added to the unsafety of the convictions. It was claimed that the results of the analysis could have gone in disproof of guilt. It was conceded that the other evidence relied on by the respondent, if admissible, might go some way to buttress the complainant’s evidence of abduction, but not her evidence of rape so far as concerned penetration, a live issue. It showed only that a violent act occurred. It was equally consistent with the applicant’s account of his accidentally tearing the complainant’s jeans and his trying to have consensual intercourse. It was submitted that for the foregoing reasons and by reason of some of the specific grounds[4] this Court should hold that no jury properly instructed could have found the applicant guilty.
[4]The particular grounds were not identified. The only possible ones seem to be grounds 2 and 3. They are considered later in this regard.

Despite the wording of this ground, the precise question for the Court is whether, within the first limb of s.568(1) of the Crimes Act, it thinks that the verdict of the jury (on one or both of the counts) should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence: MFA v. The Queen[5]. The ultimate question is whether this Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: M v. The Queen[6].
[5](2002) 77 A.L.J.R. 139 at 144, para.[25] and 147-148, para.[46].
[6](1994) 181 C.L.R. 487 at 494-495. See also MFA at 144, para.[25], and 149, para.[59].

Although it will be necessary to deal specifically with the question of penetration, an essential element for the count of rape, making my own independent assessment of the evidence[7], I think, for the reasons which follow, that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on count 1 and on count 2. All the criticisms of the complainant and her evidence were before the jury, in the form of cross-examination and submissions, for their consideration, and were quintessential matters for consideration by a jury as the “constitutional” tribunal for the determination of questions of fact. To my mind there was no reason why they should not accept the complainant’s version of the abduction and rape. The criticisms of her statement to police leave her evidence in court untouched. Most of the criticisms of her evidence in court relate to what was called the “lead-up” to the alleged offences. An exception to my last two statements may be the matter of cigarettes. But it is clear from what the sisters found on returning to the scene on 23 September that cigarettes had in fact fallen out of the complainant’s bag. If the applicant did in truth help the complainant to pick them up, the effect of that was a matter for the jury’s consideration. It did not require verdicts of not guilty. Thus, most of the specific criticisms leave untouched the complainant’s evidence of the alleged offences themselves. There is, however, the general criticism of the complainant’s evidence that it related to events occurring when she was affected by heroin and alcohol. There was no expert evidence as to the effect of heroin, and in particular of heroin taken at the times and in the quantities revealed by the evidence, upon a person’s powers of observation and memory[8]. It was, like the effect of alcohol, a matter for consideration and assessment by the jury as persons of the world. The effect of each was clearly put before them in submissions by counsel for their consideration and determination. As regards the failure to have the swabs analysed, even if that be considered unsatisfactory, if the result of analysis had been negative that would not have gone in disproof of guilt, for the evidence of Dr. Jakubowicz referred to earlier showed that the insertion of a finger into the vagina was unlikely to leave a trace of DNA, though that was possible.[9] That is, a negative result would have been quite inconclusive.
[7]M v. The Queen at 492.
[8]There was at T147-8 evidence from the complainant in cross-examination as to heroin’s effect on her.
[9]An attempt in the cross-examination of the doctor at T268 to show that, as the applicant was a metal worker, the vaginal swab would have picked up metal fragments if left behind was unsuccessful, was in any event in its conclusion conditional upon traces of metal being left, and was not supported by the necessary evidence from the applicant as to working with metal and having traces of metal in his hands.

I have so far considered the attack on the complainant’s reliability as a witness from a negative aspect. But it must be remembered that in determining the question posed for this Court by this ground the whole of the material before the jury must be considered. From a positive aspect, the complainant’s evidence received considerable support from the video tape evidence of activities on the several railway stations; from the evidence of Cacic as to the physical and emotional state of the complainant and her proximate complaint to him; from the evidence of the complainant’s sister as to discoveries at the scene; from the evidence of Dr. Jakubowicz of his observations of reddening on the complainant’s right wrist in a circumferential pattern; and, to a lesser extent, from police evidence as to the state of the grass at the scene. The jury were also entitled, indeed obliged, to take into account as part of the totality of the material before it the record of the applicant’s interview by police and his evidence on oath. The former contained numerous lies, which, to anticipate, the jury were entitled to treat as showing a consciousness of guilt, and the latter had unsatisfactory aspects which the jury were entitled to treat as tending to support or strengthen a view that the applicant was guilty.

What I have stated so far makes it very clear to my mind that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt on count 1. Indeed the Crown case on that count was very strong. I turn then to count 2 and the question of penetration. The complainant’s evidence[10] of that on the record, considered alone, reads quite convincingly. Moreover, her credit on this question is supported or bolstered by her proximate complaint to Cacic, which, when taken in full, specified as the rapist a person who could be objectively identified as the applicant. In addition, the applicant’s lies in the interview were available to the jury as eloquent evidence of a consciousness of guilt of rape. The jury might have been assisted had a direction been given as to the need to take into account the complainant’s use of heroin in assessing her evidence of penetration and as to the manner of taking it into account, though, in the absence of expert evidence[11], the judge could not himself have stated the effect of the drug save by reference to the complainant’s evidence. But the fact is that such a direction was not given or sought, so that the jury had to assess that evidence unaided by a judicial direction but aided by the submissions of counsel and their knowledge and experience as persons of the world. In my assessment, the complainant’s evidence on this topic does not contain discrepancies or display inadequacies, nor is it tainted or otherwise lacking probative force. I conclude that upon the whole of the evidence it was open to be satisfied of guilt as to count 2 also.
[10]Almost entirely in chief.
[11]Which would have been admissible: R. v. Hickey and Komljenovic (1995) 89 A.Crim.R.554 at 564-5.

Conviction grounds 2 and 3

These grounds were argued together. The overall submission for the applicant was that the trial judge conducted the trial in a way that would lead any impartial observer to think that he was biased in favour of the Crown. It was submitted in particular that his Honour:

(i)allowed the Crown to open in a flamboyant and argumentative manner;
(ii)interrupted the defence opening on at least one occasion (T70-71);
(iii)repeatedly took the side of the prosecutor in any submission that was being made;
(iv)repeatedly interrupted defence counsel’s cross-examination of the complainant, but only stopped the prosecutor after objection;
(v)trenchantly criticised the address of defence counsel in his remarks to the jury when there was no justification for doing so (T512-514);
(vi)repeatedly announced, “I am not stopping the prosecutor”;
(vii)used different language to describe the submissions of the prosecutor compared to those of defence counsel (T570);
(viii)would not order a transcription of counsel’s openings despite a request that he do so (T72).

Numerous references to the transcript[12] were given as being illustrative of the foregoing or as exemplifying, amongst other things, the allowing of an improper or impermissible question by the prosecutor, the failure to uphold a proper objection by defence counsel, and the affording of assistance to the prosecutor or a prosecution witness, as well as the allowing to the prosecutor of a further address. It was submitted that even at the time of opening addresses his Honour had already formed and, by implication, manifested to the jury views as to the final result. The Court was urged to look at all the events in the aggregate and as all going one way.
[12]T70-71, 132, 152, 181, 184, 187, 188, 191, 224, 242, 246, 268, 298, 302, 303, 306-307, 313-314, 353, 357, 391, 411, 415, 453, 507 and 570.

Counsel for the respondent made specific submissions in relation to certain of the passages complained of. More generally, he submitted that the interruptions were appropriate; that, with regard to matters arising in the course of evidence, both counsel were heard and matters were ruled upon according to principle, counsel for the applicant never being excluded from making any submissions he sought to make; that during the lengthy cross-examination of the complainant the judge interrupted on matters of substance on five occasions[13] and on each occasion the interruption was justified; that the judge also interrupted the complainant’s evidence on a number of occasions, although it was clear from those interruptions that they were for the purpose of clarification of the evidence of the witness; and that his Honour interrupted the prosecutor’s cross-examination of the applicant on a number of occasions[14], which showed, it was submitted, that the position was not as one-sided as counsel for the applicant suggested.
[13]T137, 150, 152, 161, and 173 were cited.
[14]T361, 362, 364, 375, 423, 426, 432, and 434 were cited.

I have considered all the passages cited and more, but most of them do not, in my opinion, call for discussion. The passages of the latter kind may compendiously be described as recording incidents that frequently occur in the course of a trial, in which, for instance, the trial judge seeks clarification for the benefit of the jury or queries a question asked by counsel or the course counsel is pursuing. In one or two cases the query may have turned out to be unjustified, but that not infrequently happens and did not in the present case have any significance for the trial as a whole nor could it, in my view, have affected the jury. His Honour did not exclusively use different language to describe prosecution and defence submissions. Most of the minor rulings in the passages which I am not discussing in detail seem to me to have been correct or, when discretionary, as with allowing the prosecutor to address further as to interview answer numbers, to have been open. One or two may have been doubtful, but again they had no material effect upon the trial as a whole and could not, in my view, have affected the jury. Further, not only in the passages which I am not discussing in detail, but overall, his Honour allowed, indeed frequently invited, counsel for the applicant to make a submission or state his attitude on a point that had been raised. He certainly did not shut counsel out.

I turn now to some specific incidents. With regard to the prosecutor’s opening, this Court does not have a transcript of it. All that can be said is that no objection was made by counsel for the applicant on the ground of the flamboyancy or argumentativeness of the opening and that, so far as other complaints about the prosecutor’s opening were made, they are not made out.

After the evidence of the informant was completed, his Honour gave the jury a direction[15] that it is the answer, not the question, that is the evidence, doing so by reference to a question which counsel for the applicant had asked the informant. It was submitted for the applicant that, whilst that was a proper direction, the timing and illustration used were unfortunate. In my view, however, his Honour was quite even-handed when he gave that direction.
[15]At T306-307.

Then there is[16] what counsel for the applicant accurately described to his Honour as “an unedifying and unfortunate exchange” between them in relation to how the witness Cacic came to know the informant by his first name. It may be that as counsel could only say that the question might become relevant his Honour was strictly correct that the question was irrelevant, but it led counsel for the applicant, when pushed[17], to make a second[18] application for the discharge of the jury, this time on the ground that his Honour had ostensibly shown a predisposition against the defence and towards the Crown by the way in which he had prevented, in counsel’s submission, a proper opening and a proper cross-examination of witnesses. It may be that this contretemps could have been avoided by a little more flexibility.
[16]At T224-225.
[17]At T246.
[18]The first, based on the prosecutor’s opening, was correctly refused.

Finally, and most importantly, there is what counsel described as the trenchant criticism by the judge in his charge of his final address. The impugned remarks of his Honour took the form of criticising five passages in counsel’s address by way of illustrating, and emphasising, his Honour’s first direction to the jury, which was that they must decide the case in accordance with the evidence and that this was an intellectual task to which emotive considerations were foreign.

I am inclined to think that his Honour was correct in his criticisms – for such they were, as will appear – of each of the five passages[19]. But counsel’s complaint was that his Honour spent three to four pages in destroying any points[20] that he, counsel, had made and that it was overwhelmingly in favour of the Crown, so that the Crown “got an armchair ride”.
[19]Though to point out that the defence had not, any more than the Crown, called evidence as to the effect of heroin may have overlooked the fundamental rule that an accused does not have to prove anything. Further, whilst a jury’s task is undoubtedly an intellectual one it would seem hard to deny, in light of the long history of criminal advocacy in Britain and Australia, that emotion is a part of the armoury of the advocate.
[20]But this assumes the points were good.

It is true that the remarks of his Honour now in question extend over almost three pages in the transcript of the charge and begin only one page and a quarter of the transcript from the commencement of the charge, which followed immediately upon counsel’s address and when the jury’s concentration upon the judge’s words was likely to be at its greatest. Further, although his Honour disavowed to the jury at the commencement of the relevant remarks that any criticism of any counsel was intended, his remarks could not have been taken by the jury as being other than critical of parts of counsel’s address, and to that extent of counsel. Indeed, by the time his Honour came to the final point the burden of his remarks appears to have changed from exemplifying invitations to infringe his first direction of law to an acknowledged critique of counsel’s submissions, for he said, “Now the final matter I want to say at this moment about [counsel’s] submissions is …”.

Undoubtedly the logical position in the charge for the five examples drawn from counsel’s address was where they appeared, that is straight after the first direction. Moreover, had his Honour given the examples in the context of summarising counsel’s addresses at the end of his charge, the examples would have received considerable, and perhaps equal, emphasis. His Honour could, of course, have satisfied himself with one or two illustrations from counsel’s address.

The passage, with its manifold criticisms and prominent position, is most unfortunate. But the question is whether, on the ground of that passage and the other words and conduct relied on, taken cumulatively, and taken with the points made under ground 1 in relation to the rape count and the fact that the Crown case on it ultimately depended on the evidence of the complainant alone, “there was”, within the third limb of s.568(1) of the Crimes Act, ”a miscarriage of justice”. In the end, whilst recognising the force of the contrary view, I am not persuaded that there was. It could not be said – and I do not think that it was argued orally - that his Honour denied procedural fairness during the running of the trial, for he was most careful to afford defence counsel every opportunity to make submissions on any point on which he was called upon to rule. Nor, turning to the other branch of natural justice, which was relied on orally, am I persuaded that the charge of ostensible bias on the part of the judge has been made out or that he indicated to the jury his view as to the result (as opposed to his view about, for example, five points made by defence counsel). Rather, as it seems to me, this was a case where, as from time to time happens, the trial judge, perhaps with a strictness of approach, picked upon instances of looseness in counsel’s questions or address and where, with justification in most cases at least (despite counsel’s view), rulings went almost universally against the accused. The cases show that considerable latitude is allowed to judges in the conduct of a trial. So far as the three-page passage at the virtual commencement of his Honour’s charge is concerned in particular, I have come to the conclusion that its terms and position did not constitute or give rise to a miscarriage of justice, even when taken with any other matters of which complaint may justifiably be made. This is so, I consider, even in the case of the rape count. In reaching that conclusion I have had regard, amongst other things, to the overall correctness of the passage, to the fact that it appeared in its logical position in the charge, and, especially, to the nature and non-centrality of the statements by counsel that it dealt with.

Conviction ground 4

Although before his Honour it was argued in the alternative that parts of the record of interview should be excluded as being of a cross-examining nature, that was not contended on this application. Rather, the argument was that his Honour made a wrong decision on a question of law in not excluding the whole record of interview on the ground that the interviewing police had failed to inform the applicant “of the circumstances of [the] offence” for which he had been arrested and was in custody, as required by paragraph (a) of s.464A(2) of the Crimes Act, which, in accordance with R. v. Lancaster[21], was a mandatory precondition to their entitlement to question him pursuant to paragraph (b).
[21][1998] 4 V.R. 550.

The evidence on the voir dire before the judge showed that the informant had before the commencement of the interview proper informed the applicant that he was under arrest for the rape of the female he was speaking to at the Dandenong railway station on 22 September 2000[22]. It was not until Question 201 in the interview that the applicant was informed that the mode of penetration alleged was digital rather than penile. It was submitted to his Honour and on this application that the omission to inform the applicant of this[23] before the questioning proper began meant that the precondition had not been satisfied and that the whole of the record of interview should be or should have been, as the case may be, excluded in the exercise of the court’s discretion to exclude admissible evidence on the ground of unfairness.[24] It was submitted to his Honour and to this Court that the informant had deliberately refrained from specifying the mode of penetration so as to engender a belief in the applicant that he was being interviewed for a penile rape, as, it was submitted, his answers before and after Question 201 indicated occurred. It was further submitted that, whilst the misapprehension did not lead to any admissions of guilt, it might have led him into some inaccuracies or lies that were used by the Crown as evidence of consciousness of guilt[25]. If he had fairly been told what was alleged against him, he might well not have felt the need to tell lies.
[22]It was suggested in Question 224 that the applicant had earlier been told that the rape occurred in Hallam, near the railway station. But the answer was non-responsive.
[23]No point was made about the omission to mention abduction, no doubt because it was taken to be involved in "rape” and because of what was held in Lancaster.
[24]It was held in Lancaster that non-compliance with s.464(A2)(a) did not lead automatically to the inadmissibility of the record of interview but gave rise to the discretion in the trial judge to exclude it either on the ground of unfairness or for reasons of public policy flowing from illegality in obtaining of evidence.
[25]Compare the reference to escaping an unjust accusation in Edwards v. The Queen (1993) 178 C.L.R. 193 at 211. There is a question whether that comprehends a different form of the same offence.

Significantly, the applicant gave no evidence on the voir dire to support the submissions of his counsel. Further, he had made it clear before Question 201 that the complainant had departed from him, safe and sound, at or near the station and that he had returned to the platform and caught a train to Hallam, so that he could not have committed any offence upon her. Moreover, he expressed no surprise when it was revealed to him in Question 201 that the complainant alleged digital rape.

The trial judge was doubtful whether the failure to state the mode of penetration amounted to a non-compliance with s.464A(2)(a), but did not decide the question. Rather, he refused to exclude the record of interview because he was not persuaded that it was unfair to admit it.

For my part, I consider that in the circumstances of this case the information given to the applicant was a sufficient compliance with s.464A(2)(a)[26]. The content of the requirement of the provision is variable: Lancaster[27]. The applicant relied on the statement of my view in Lancaster[28] that “the circumstances of that offence” means “the central factual feature or features, expressed in general and abbreviated terms, of the offence”; but later on the same page I indicated that, if a statement of the name of the offence were required, it would not be necessary to specify the type of rape, and it may be said that the central factual features of the offence for which the applicant was in custody were sexual penetration without consent, which the word “rape” covered. In any event, I am not persuaded that his Honour erred in failing to be satisfied (the onus being on the applicant) that it was unfair to admit the record of interview. I am not persuaded that its admission affected the applicant’s right to a fair trial: the reliability of the answers was not, in my opinion, affected by the failure to inform him of the mode of penetration alleged. Moreover, I am quite unpersuaded by the argument – for that is all it is – that, had the applicant been told the mode of penetration, he might not have committed the inaccuracies or told the lies he did. A similar argument might be understandable if the applicant had, as he did not do, admitted digital penetration but denied penile penetration.
[26]Otherwise, it would seem that in a case where there were several different modes of penetration all would need to be stated.
[27]At 555.
[28]At 557.

For these reasons, in my view this ground fails.

Conviction grounds 5 and 6

These two grounds were argued together. It was said for the applicant that the lies occurred in the circumstances asserted for him under the previous ground and reference was made to his evidence that when told that he was under arrest for rape he believed that meant having penile sex with somebody without that person’s consent. Reference was also made to his evidence that he had initially denied walking along Hallam Road with the complainant because he “was nervous about what I was being charged with and [knew] that it’s not true”. It was therefore submitted that he might have told lies because he believed he was charged with an offence which he had not committed. But that, as it seems to me, is a question for the jury, and does not go to admissibility. It was, as it were, countered that the jury had not been instructed, as required by Edwards[29], that there may be reasons for the telling of a lie apart from the realisation of guilt, of which examples were given in that case, including “to escape an unjust accusation”. But the judge did direct the jury about this, saying quite specifically that if a reasonable explanation was that he told lies for some other reason such as, amongst others, “because he believed he was wrongly being accused of penile rape”, then they would not be able to be satisfied beyond reasonable doubt that the only reasonable explanation for his lies was his consciousness of guilt of these crimes.
[29]At 211.

It was, as I understand the argument, secondly contended that the lies could not have been evidence of a consciousness of guilt of the acts complained of by the complainant, that is, digital penetration without her consent. It was said that his Honour was troubled[30] as to lies told before Question 201, but that in the end in his charge he “lumped” all lies together.
[30]At T466.

In fact, however, consistently with what he said he would say in his charge when he ruled that the Crown should be permitted to rely upon consciousness of guilt by lies, his Honour in his charge referred to the particular questions the answers to which were relied on by the Crown in respect of each of three identified lies and distinguished specifically between those which came before and those which came after Question 201[31]. It was in fact only in the case of the first identified lie (namely, that the applicant had not been in the gully near Hallam Road) that there were any answers relied on that came after Question 201. Moreover, before he did what I have just described, his Honour expressly drew the jury’s attention to the fact that it was not until Question 201 that the police specifically said to the applicant that the allegation by the complainant was of digital penetration. His Honour followed that with a reminder to the jury that the applicant had said in his evidence-in-chief that when he was arrested he thought it was being suggested that he had had penile sexual penetration of someone without consent. Having after that enumerated the relevant questions as described above, his Honour gave the jury what seems to me to be a perfectly satisfactory series of directions as to the matters of which they had to be satisfied beyond reasonable doubt before they could use the lies in the way argued for the Crown. The third matter his Honour stated was that the only reasonable explanation for the applicant’s telling the lies was his consciousness of guilt “of these crimes, not of some other wrongdoing, or because of some other reason to lie about the matter”. He continued his directions as follows:

“In your consideration of that third matter …, you should, indeed you must, bear in mind that it was not until Question 201, that police specifically said to the accused man that the allegation of the complainant was that he had inserted his finger into her vagina. As I have said you must be satisfied beyond reasonable doubt that the only reasonable explanation that the accused man did tell lies was his consciousness of guilt of the crimes charged, that is, the alleged crime of abduction and the alleged crime constituted by the digital penetration of her vagina without her consent.
If a reasonable explanation is that he told lies for some other reason, such as fear or panic, because he believed he was wrongly being accused of penile rape, then you would not be able to be satisfied beyond reasonable doubt as to the third matter…It’s entirely a matter for you.”

Thus, his Honour identified the two crimes and specifically made it clear that the reasonable explanation for the lies of which the jury had to be satisfied beyond reasonable doubt, namely, his consciousness of guilt of the crimes charged, did not include the explanation that he told them in order to avoid an unjust accusation of penile rape.

[31]To the answers after Question 201 enumerated by his Honour could, in my view, be added that to Question 246, because it adopts what the applicant had told the police “before”, which refers well back beyond Question 201.

In my opinion, his Honour was entitled to leave the lies to the jury for consideration as evidence of consciousness of guilt with the qualification which he stated concerning Question 201. I say this because I consider that it was open to the jury, as the Crown had submitted, to find beyond reasonable doubt that the applicant, although not fully informed by the police until Question 201, knew what had transpired between him and the complainant, namely, digital penetration without consent and her earlier abduction into the gully. In any event, the answers to the questions enumerated by his Honour that came after Question 201 show that the applicant persisted in the first lie relied on, and it was, in my opinion, open to the jury to find from the tenor of answers subsequent to Question 201 that he persisted in the second and third lies relied on.

In the course of his somewhat discursive submissions under these grounds counsel for the applicant made two other, passing, submissions. First, it was said that the applicant’s lies were merely distancing himself from the offence and were not on a “material” point. In my view, however, each of the three lies identified was “concerned with some circumstance or event connected with the offence (i.e. it relate[d] to a material issue)”.[32] Secondly, it was complained that no distinction was drawn between the two offences. His Honour mentioned both but any elaboration would not have assisted the applicant, for it would have made it clear that lateness of the information conveyed by Question 201 was immaterial to the abduction count
[32]Edwards at 210.

Conviction grounds 7 and 8

It was submitted for the applicant that his Honour ought not to have told the jury, as he did, that the complainant’s appearance and distress were capable of constituting supporting evidence. Indeed, given that no corroboration was needed, it was unclear, it was submitted, why his Honour told the jury about supporting evidence at all. Doing so raised the complainant’s evidence to a higher level, it was complained. Although he took the Court to the unsuccessful exception to the effect that his Honour should define for the jury the expression which he had used about evidence to support the complainant’s evidence, namely, “in the material respect”, counsel for the applicant informed the Court that his only challenge was to the availability of distress as corroboration. His challenge was on the ground that distress emanated from the complainant herself and was capable of being feigned. Reliance was placed on R. v. Flannery[33], and R. v. Schlaefer[34]. It was also submitted that the distress did not show what act of the applicant led to the distress.
[33][1969] V.R. 586 at 592.
[34](1984) 12 A.Crim.R. 345 at 352-4.

In Flannery the Full Court stated[35]:

“In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath’s Case, supra[36], evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.

See also R. v. Freeman[37]. Although in Schlaefer King, C.J. (with whom Walters, J. and Mohr, J. agreed) spoke of the incongruity with the essential notion of corroboration as confirmation from an independent source of the person to be corroborated in regarding actions or emotional manifestations emanating from that person as capable of corroborating the person and although he pointed out that such actions and manifestations may be contrived or simulated, his Honour nevertheless accepted that independent evidence of observed indications of distress may in certain circumstances amount to corroboration, referring to Flannery amongst other cases.[38] In any event this Court is bound by, or at least should follow, the Victorian decision in Flannery.

[35]At 591.

[36][R. v. Redpath (1962) 46 Cr.App.Rep. 319].

[37][1980] V.R. 1 at 13-14.

[38]The Chief Justice added the gloss at 353 that the reference to the reasonable drawing of an inference of causal connection between the alleged assault and the distressed condition meant an inference that the distressed condition could only have been caused by a sexual incident of the kind alleged. See also C. v. Waye (1984) 14 A.Crim.R.391.

In my opinion, in this case the evidence of the complainant’s distress given by the independent witness Cacic was capable of amounting to corroboration. The complainant was observed by Cacic very shortly after and in the area of the alleged rape. Moreover, she was walking along a relatively lonely road and he came upon her from behind, making it highly unlikely that she had feigned or contrived her distress. This was not a case like Flannery, where much had taken place, and much time had elapsed, between the alleged assault and the observing of the complainant by two witnesses and where the distress observed by a third witness an hour after the alleged assault might equally have been caused by the complainant’s making her complaint. Further, in the circumstances of this case the reasonable inference - indeed, I would suggest, the only reasonable inference - was that there was a causal connection between the alleged rape and the distressed condition, no other occurrence suggesting itself as the causal event. I do not accept that the evidence of distress must be such as to show what act, in the sense of a specific act, of the applicant led to it. Finally, in my opinion, the judge was entitled to raise the question of corroboration and to direct the jury on it, because, as he said, as a matter of common sense they might find it of assistance if there was some other evidence independent of the complainant that confirmed or supported her evidence. Whether or not that raised her evidence to a higher level, the Crown was entitled to have the jury consider her evidence as independently supported if they came to the conclusion that it was. For the foregoing reasons, I am of the opinion that grounds 7 and 8 fail.[39]
[39]The unrealistic suggestion was not made (though compare T183) that Cacic’s evidence of the complainant’s complaint that someone “tried to rape me” (emphasis added) showed that not even digital penetration had been achieved and failed to bolster her credit. On one view of her evidence at T180 the complaint was more decisive.

Conclusion on conviction

I therefore conclude that the application touching conviction should be dismissed.

Sentence

As the other members of the Court conclude that the conviction on count 2 should be quashed and a judgment and verdict of acquittal entered on that count, I confine my consideration to whether the sentence on count 1 is manifestly excessive.

In support of the ground that the sentence was manifestly excessive counsel emphasised the shortness of the duration of the events and the lack of any accompanying threatening words. It was expressly conceded that an immediate custodial sentence was appropriate.

I agree with the submission for the respondent that this offending was an opportunistic exploitation of a vulnerable female by a mature male with some

previous convictions who demonstrated no remorse. His Honour was correct to emphasise general deterrence and just punishment as sentencing purposes. The maximum penalty applicable was substantial. In light of the foregoing considerations the individual sentence of two years’ imprisonment was, in my opinion, moderate. It was certainly within the range open to his Honour in the exercise of a sound discretionary judgment.

I would accordingly dismiss the application for leave to appeal against sentence.

VINCENT, J.A.:

I am of the view that the application for leave to appeal against conviction should be allowed, allowing perhaps for some slight differences in emphasis, for the reasons advanced by Eames, J.A.

I would add only a few remarks of my own. Whilst it is clear that trial judges are permitted to make comments to the jury concerning the evidence or arguments presented to them, it is power that should be exercised with considerable care. Only a moment’s thought is required to appreciate that such remarks, and whether directed for or against the prosecution or defence, possess a significant potential to compromise not only the actual fairness of the trial but also the perception of fairness, particularly when viewed from the perspective of the party adversely affected. Of course, the judge does have a duty to comment on extravagances or misstatements of fact or law that may divert the jury from the proper performance of their task. However, it is no part of the judge’s role to attempt to usurp their function or to attempt to influence their fact-finding activities in any fashion. What the judge personally thinks of the prosecution, the defence presented or the counsel appearing in the trial would almost, if not always, be entirely irrelevant.

It would, I think, be reasonable to anticipate that some jurors, in acknowledgment of the judge’s position and experience, would be influenced by the

judge’s apparent view of the case or the competence and credibility of those involved in it. The expression “you might think” uttered from the Bench may well, dependent upon the nature of what follows and the inflexion employed, create a serious risk of a miscarriage of justice that might not be removed by the addition of words to the effect “It’s up to you”. The mere statement by a judge that the jury was entitled to disregard any comments emanating from the Bench may do nothing to reduce their impact or influence. A similar risk can arise from the making of repeated and unnecessarily disparaging remarks of the kind made by the trial judge in this case concerning the conduct of counsel and the arguments presented.

For practical purposes, there was no external support for the evidence of the complainant that digital penetration had occurred. Nevertheless, and notwithstanding the various criticisms which could be made concerning much of her version of the events of that night, the jury was entitled to accept her as truthful and reliable on this crucial issue and, properly instructed, to have convicted the applicant on the count of rape. The outcome clearly depended upon the view adopted by them of her credibility and reliability. Against that background, and having regard to the inadequacies in the instructions provided to the jury that have been addressed by Eames, J.A., the comments of the trial judge must be perceived as capable of influencing the jury in its consideration of the challenges made to her evidence. In that situation, the reasonable possibility of a miscarriage of justice cannot, in my opinion, be excluded.

I agree for the reasons advanced by Batt, J.A. that the application for leave to appeal against the sentence imposed on count 1 should be dismissed and the sentence of two years’ imprisonment be confirmed.

EAMES, J.A.:

I have had the advantage of reading in draft the judgment of Batt, J.A. and I will adopt his Honour’s description of the facts and his detailed discussion of the issues and the evidentiary matters which were the subject of analysis by him under

each of the grounds of appeal. Although I am in substantial agreement with the analysis of Batt, J.A. on many of the grounds of appeal against conviction, and as to the application for leave to appeal against sentence on count 1, I have come to a different conclusion as to the outcome of the application for leave to appeal against conviction on count 2.
Grounds 2 and 3: Procedural unfairness/Bias

Within a few minutes of commencing his charge to the jury the learned trial judge turned to the question of what constituted the evidence in the trial. His Honour prefaced his remarks on that topic by saying that he was not intending to criticise defence counsel, but then proceeded to list as errors, and to correct, a series of propositions advanced in the final address of defence counsel.

First, the judge made much of the brief reference counsel made to a television program, “Sex in the City”. Counsel had referred to this program in general terms, merely in the context of an argument that the circumstances in which people today sought casual sexual relations were very different from earlier times and that the court was not a court of morals. His Honour told the jury that that program (which his Honour said he had not seen) had little relationship to real life. He told the jury that the reference to the program was “of no assistance whatsoever” to the jury in deciding the case according to the evidence.

Counsel quite frequently colour their addresses by references to current and popular affairs in order to attract the attention of the jury and to illustrate a point which counsel is seeking to make. It would, of course, be inappropriate for counsel whether intentionally or not, to seek to introduce evidence from the bar table by such a technique, or to thereby distract the jury from the evidence and the issues in the trial. In this case, however, I do not consider that there was any risk of the jury being confused or distracted by the illustration given by counsel in his address, and it was unfortunate that the judge admonished him for his approach. In my opinion, the criticism of counsel for his use of this illustration was unreasonable in the circumstances.

Secondly, his Honour rejected counsel’s criticisms of the police for failure to have a vaginal swab tested for the presence of DNA. His Honour said that police had explained why they had not done so in this case and the jury ought not speculate as to what the tests might have shown. His Honour’s direction was quite correct as to avoidance of speculation, but since counsel had spent some time on the topic the direction effectively negated the point (albeit, not a very strong one) that counsel had sought to make. The criticism of counsel’s comment about the absence of DNA testing could not appropriately attract a complaint of bias, but there was really no necessity for any direction to have been given, since it was patently obvious that even if the test had been conducted it could not have exculpated the applicant, since the evidence was that the absence of DNA evidence could not have proved that he had not penetrated the complainant’s vagina.

Thirdly, and in a related topic, his Honour criticised counsel for having given an “emotive” submission which, he said, was of no assistance to the jury at all, to the effect that it would be a tragedy if in five years time a headline announced that an innocent man (presumably the accused) had been freed after DNA evidence had been obtained. Mr Crafti had commented to the jury that the investigating police had forwarded the vaginal swab to the Forensic Science Centre but having done so then did not ask for it to be analysed for DNA. He submitted that the police had taken that course because the DNA testing could not help the prosecution case. Mr Crafti asked what the point was in delivering the samples if they were not then to be analysed in time for the trial. He then observed that the jury would not want this to be the case where in five years time they were to read in the newspapers that “Innocent man freed after further tests are done”.

Although it was no doubt not intended to be such it did constitute an inappropriate remark which was capable of intimidating the jury and diverting them from their intellectual task. With appropriate timing, and in terms which more appropriately constituted a correction rather than an admonition, his Honour was quite entitled to address that matter.

Fourthly, the judge highlighted counsel’s submission that there was no evidence as to the effect of heroin upon a person. His Honour said that –

“Whether or not an appropriate expert can give such evidence, I have no idea, and we should not speculate about, but that comment about not hearing any evidence from an expert able to give any such evidence really, you might think, cuts both ways. Certainly the Crown did not call any, certainly the defence has not called any, so that sort of comment, I suggest to you, is of no assistance at all. It is a matter entirely for you but I suggest to you that it is of no assistance at all.”

This criticism was unfair to the defence. The point being made by counsel was perfectly valid and was important in a case where the complainant admitted that she had consumed heroin on three occasions on the day of the offence and that she had been “off her face”. To suggest that counsel in his address was making submissions which were of no assistance, at all, was damaging to the interests of the accused.

Fifthly, the judge criticised counsel for saying to the jury that this was not such a case – as “one often hears in cases of this kind” – where threats had been made such as “Don’t report this to police”, or “I know where you live”. The judge said that there was no evidence at all of what one often hears in cases of this kind, and that counsel was giving evidence from the bar table. The judge said that he would not do likewise but, in so saying, his words might well have led the jury to understand that his Honour’s own experience was different from that of counsel. Strictly, counsel’s remark did amount to evidence, but it was a merely passing and brief comment in the context of a submission that there was no evidence of violence or threats, that it was agreed the complainant and accused had been arm in arm earlier, and that the complainant had not stopped the applicant from kissing her. The defence case was that there had been consensual sexual relations up to a point where the applicant ripped the jeans off the complainant and she then withdrew consent which he accepted.

Thus, some of the criticisms made by the judge of the address of defence counsel were appropriate and some were unnecessary, but none of them needed to be made at the outset of the charge. Taken together, and arising as they did at the very start of the charge, the jury must have regarded them as an admonishment of counsel for adopting a course in his address which was misleading and inappropriate.

A reading of extracts of the transcript to which we were referred suggests that by the time of the final addresses the jury would have been well aware that defence counsel believed that he and his client were not being given a fair run from the trial judge in the presentation of the defence case. The opening remarks in the charge would no doubt have been seen in that light. That is not to say that counsel’s perception of the conduct of the trial was justified.

Mr Crafti complains that from the time of his opening address in response to the Crown opening – which the judge interrupted to tell him to stick to identifying the issues in the case and not to make arguments as to the evidence – the judge had been hostile towards him and had unduly favoured the Crown in rulings.[40] Upon examination of the many instances of rulings to which we were referred it is plain that in most instances the judge was correct, or arguably so, in making the rulings he did as to particular questions or evidence. It is equally plain that with each successive ruling Mr Crafti found confirmation of his belief that the Crown was being favoured; notwithstanding the fact that in many instances the ruling was arguably correct. Save for the matters which form specific grounds of appeal none of these rulings were of significance in themselves as to the outcome of the trial.
[40]Before the addresses commenced the judge had sought assurance that counsel would “basically” confine himself to the issues and not go into matters of argument and counsel agreed that he was obliged to so confine his address (T68). In the course of his subsequent complaint about being interrupted during his address, counsel said to the judge that as to the instance for which he had been admonished he had merely sought to correct what he considered to have been a misstatement of the evidence on one matter raised by the prosecutor in his opening.

The exchanges between counsel and the judge grew increasingly terse throughout the trial. In one instance[41] the judge took exception to a question asked of a lay witness as to whether he was on first name terms with the informant when he made his statement. The judge asked what relevance it had and after a debate in front of the jury said that counsel had been unable to demonstrate any relevance. Counsel said that he was laying the ground work for a possible later argument as to police bias. The judge rather dismissively said that if it was being suggested that there was something odd that the witness knew the name of the police officer he would ask how he knew it. He did so and got the inevitable answer that the police officer had told the witness his first name. It was a minor debate but led to an application for a discharge of the jury. In argument counsel characterised his exchange with the judge as having been “unedifying and unfortunate”[42] and so it was. Many of the instances of “bias” identified by Mr Crafti concerned the judge’s rejection of objections by him to the prosecutor’s questions by employing the words “I’m not stopping Mr Tinney”. On one occasion[43] counsel said (and I infer did so abruptly) that his Honour should do so and the judge took umbrage, saying “Don’t speak to me like that Mr Crafti. I have ruled against you. Please resume your seat”.
[41]T224-225.
[42]T244.
[43]T415.

In the heat of a criminal trial terse words are at times exchanged between counsel and the judge. It is not desirable, but it happens, and any tension usually quickly dissipates as a reflection of the mutual respect between bench and bar. A determined pursuit of one’s client’s interests sometimes blinds counsel to the deficiencies of their own arguments or questions and a sense of grievance can develop from an accumulation of minor setbacks without the merits of the individual issues being objectively assessed. Sometimes, of course, it is the judge who is wrong and unreasonable. It is not necessary to elaborate on the many individual passages of transcript to which we were referred to determine whether the objections had merit. The question raised by grounds 2 and 3 is whether what occurred in this trial represented such a departure from the trial process as to constitute a miscarriage of justice.

The fact that by his or her words and conduct the judge demonstrates that he or she had formed a view of the accused and of the strength of the Crown case would not of itself constitute a miscarriage of justice: see R. v. Boykovski & Ananasovski[44]. The trial judge is entitled to make comments to the jury about the accused and his defence which are very strongly critical, but may only do so provided that “he makes it perfectly clear to the jury that they are the judges of the facts and are entitled to reject his or her comments on the facts[45]. There may be circumstances where the judge’s comment, albeit expressed to be such, is nonetheless so strong as to amount to the de facto withdrawal of an issue from the jury[46]. The relevant question is whether the comments of the trial judge amount to the judge having descended into the forensic arena to such an extent as to bring about a miscarriage of justice.
[44](1991) 58 A.Crim.R. 436, at 442-443, per Crockett and Teague, JJ., with whom Murphy, J. agreed.
[45]R. v. Boykovski & Ananasovski, at 443; see, too, Cunningham v. Ryan (1919) 27 CLR 294, at 298-299; Barca v. The Queen (1975) 133 C.L.R. 82, at 105; R. v. Kerr (No.2) [1951] V.L.R. 239, at 247; R. v. Allen [2003] S.A.S.C. 309, at [22].
[46]See R. v. Nicholson (1984) 12 A.Crim.R. 231, at 235, per King, C.J.; B v. The Queen (1992) 175 CLR 599, at 605-606.

In Lewis v. Judge Ogden[47] the High Court acknowledged the importance to the administration of justice of facilitating the freedom and the responsibility which counsel has to present his or her client’s case, in particular when addressing the jury. Counsel has an obligation “to plead his client’s case fearlessly and with vigour and determination”[48]. The trial judge does, however, have a duty “of correcting extravagances and excesses and unwarranted propositions” where there is a real risk that the comments might influence the jury towards the miscarrying of the proper deliberations which it is their duty to undertake: see R. v. Glusheski[49].
[47](1984) 153 C.L.R. 682, at 689.
[48]At 689.
[49](1986) 33 A.Crim.R. 193, at 195-196, per Street, C.J.

The fact that it is recognised that the trial judge might make adverse comments about the defence case or its presentation, does not mean that such conduct by the judge ought to be encouraged or accepted as a matter of course. The decision-making body is the jury, not the judge, and the powerful position occupied by a trial judge should make a judge slow to indulge in comments on the facts of a case or to rebuke counsel in the presence of the jury. In this State it is now the exception, rather than the rule, that the trial judge engages in comment on the facts of the case, and it is appropriate that that be so.

In the present case the timing of the critical comments of the address of defence counsel was unfortunate, as was the content of many of the comments. The adverse comments of the judge to which exception is taken occurred after counsel had concluded his address, and was no longer able to respond. Nor had counsel made any comments, himself, in anticipation that adverse comments might be made in the charge.

I consider it probable that during the course of the trial the jury would have concluded that the judge had formed an adverse opinion of defence counsel and the manner in which he was presenting the defence case. The difference in language employed by the judge in his charge in referring to the remarks of the prosecutor usually as submissions, whereas the defence was always said to “put” matters, might subtly, and no doubt unintentionally, have conveyed that the prosecutor was seen in a more favourable light. That, in turn, might have tended to suggest that the judge had formed a view as to the guilt of the applicant. In my opinion, a trial judge should not betray his or her opinion of the guilt of the accused and should be at pains not to create such an impression in the minds of the jury (or, for that matter, in the minds of the accused or his or her advisers). The question for us, however, is whether the conduct of the judge in this case did constitute such comment and in so doing amounted to a miscarriage of justice.

I have tried to recreate the atmosphere of this trial by a re-reading of the passages of transcript about to which complaint is made. It is, of course, difficult to do so. The directions[50] would have been taken as an admonishment of counsel and perhaps as an indication that the judge had some personal antipathy to defence counsel but I do not think that either what occurred in the charge or the various debates during the trial between defence counsel and judge would amount to a miscarriage of justice, whether considered separately or taken together. The appeal would not succeed on these two grounds.
[50]The judge immediately followed his statements about the defence address by dealing with the topic of judicial comment on facts, as contrasted with directions. It was clear, however, that he intended what he said about the defence address to be understood to be directions, not mere comment.

I will, however, return to these grounds of appeal because it is my view that when taken with a number of the other grounds the combined effect of the matters raised therein does cause the rape conviction to be unsafe and unsatisfactory.

Ground 4

The contention advanced in this ground is that whether by virtue of a breach of s.464A(2) or else in the exercise of his fairness discretion the trial judge ought to have excluded the record of interview in its entirety.

The police officers conducting the record of interview knew that the applicant incorrectly understood rape to be an offence involving penile penetration of the victim. Not until question 201 did they specify that the allegation in this case was of digital penetration and it seems clear that one reason why they did not advise him earlier of the precise allegation was that they anticipated that the applicant’s misunderstanding of the law might lead him to make unwitting admissions of the offence. For the reasons given by Batt, J.A. I agree that the conduct of the police did not constitute a breach of s.464A(2). On the other hand, it was conduct which might have led to exclusion of the interview in the exercise of the fairness discretion had it been demonstrated that it was by virtue of the knowing failure of the police officers to correct the misapprehension of the applicant that he had made unwitting admissions of what amounted to digital rape. He did not, however, do so.

The applicant did not give evidence on the voir dire to say that he would have declined to continue with the record of interview, or else would have conducted himself differently had he known the precise allegations against him. Counsel for the applicant merely contended on the voir dire that had he been fully informed the applicant might not have told the lies in the interview which proved so damaging to him in the case. In his evidence before the jury the applicant did suggest that the fact that he was being questioned about something which he did not believe had happened, namely a “rape”, led him to lie to the police, but since he gave no evidence on the voir dire to that effect the attack on the judge’s ruling is considerably weakened. Furthermore, nothing in the interview suggests that his responses were influenced by any misapprehension of what constituted rape.

Although no error has been shown in admitting the record of interview into evidence the conduct of the police needed to be addressed by the trial judge, and was, during the charge. The judge directed the jury, in clear and appropriate terms, to have regard to the possibility that the suggested lies in consciousness of guilt may be explained by a misunderstanding, not corrected by police, as to the nature of the allegations.

Ground 4 was not made out.

Grounds 5 and 6

For the reasons given by Batt, J.A. I agree that these grounds were not made out.

Grounds 7 and 8

I agree with Batt, J.A., for the reasons his gives, that these grounds are also not made out.

Ground 1

I have concluded that none of the individual grounds of appeal have been separately made out, but when all of the complaints are taken together ground 1, in my opinion, is made out with respect to count 2, the conviction for rape. That conviction, in my view, is unsafe and unsatisfactory in the circumstances of this case.

Whilst there was support for the complainant’s allegations that she had been abducted, the complaint of rape fell to be decided primarily upon an assessment of the credibility of the complainant and the applicant. That being so, any hint from the trial judge that the submissions of counsel for the applicant lacked credibility, were misleading or were unworthy of being given weight, was likely to be prejudicial to the interests of the applicant.

There was evidence which supported the complaint of abduction. In the first place, it was somewhat improbable that the complainant would have chosen to voluntarily descend into a ditch, at a 45 degree angle, down an embankment, in the dark, for consensual sexual activity with the applicant, whom she had only just met. The evidence of her torn clothing, the trampled grass, the loss of her belly chain, bracelet and mobile phone, coupled with her injured right wrist, and left thigh, and her dishevelled and distressed state immediately after leaving the ditch, all strongly supported her claim that she had been abducted, and had not voluntarily accompanied the applicant to the ditch. The many lies which the applicant admitted in his evidence having told police bespoke consciousness of guilt of some offence on his part, and it was plainly open to the jury to have concluded that his lies constituted an admission that he had abducted the complainant.

The count of rape, however, did not have similar support.

The complainant told the jury that her digital penetration by the applicant had taken probably only a couple of seconds and she was not sure whether it involved one or two fingers, but penetration was to two or three inches. She said that she had tried to keep her legs together but her assailant had forced her thighs apart as she struggled with him.

The first complaint made by the complainant, to Mr Cacic, as she left the ditch was that “someone tried to rape me”. In her evidence the complainant recalled that she had said to Cacic that “someone had attacked me”. When interviewed by police she said that “some guy tried to jump me and ripped my clothes”. When she saw Dr Jakubowicz the following day she said that her assailant had tried and succeeded in getting one finger inside her vagina while she was struggling against him. Upon examination no objective injury to the vaginal area was found, but the doctor said that penetration would not necessarily cause trauma.

Although the complainant said that she had not then known the precise legal meaning of “rape”, she understood that it involved penetration.

The fact that in several instances her complaints were consistent with the absence of penetration may have been regarded as significant by the jury. Counsel for the applicant placed emphasis on the admission of the complainant that she was, in her words, “off my face” that evening, having thrice injected heroin and consumed four or five pots of beer. She had not used heroin for eight months. She admitted being wrong in her recollection as to the detail of a number of the events which she described.

In his third interview with police the applicant said that although he had not penetrated the complainant with his finger his hand had brushed against her pubic hair, whilst engaged in what, up to that moment, was consensual sexual by-play. In his evidence he said he could not remember saying that, but left open the possibility that he had. He said that it was dark and he could not see the pubic hair of the complainant. There remained a real question, however, whether - however much he may have intended to do so - the applicant had actually penetrated the complainant’s vagina with any of his fingers. At all times he denied that he had done so.

In my opinion, in those circumstances, it was particularly unfortunate that in his criticism of counsel’s closing address the learned judge told the jury that Mr Crafti’s submission that there was no expert evidence as to the effect of heroin was “of no assistance at all”. The point being made by counsel was a serious one, and important to the defence case because the reliability of the complainant’s account was critical to conviction. The judge further diminished the submission by observing that the defence might have called such evidence. That comment was not qualified by a re-statement that the onus of proof rested with the Crown.

Having substantially diminished the force of counsel’s submission his Honour’s treatment of the importance of weighing the effect of alcohol and drug ingestion on the complainant’s reliability was, in my opinion, little more than rudimentary. Although no direction was sought that the complainant be treated by the jury as an unreliable or dangerous witness the need for care in assessing her evidence deserved much greater treatment than it received in the charge, even though the judge did give a full summary of the evidence of the witness. The question of the reliability of the complainant’s evidence was only expressly addressed (rather than in a direction concerning witnesses generally) when his Honour summarised defence counsel’s final address. The summary of the defence address concerning the witness’s credibility occupied two sentences and about six lines of transcript. Nothing was said about the possible effect of heroin on her reliability save for repeating counsel’s statement that she had had three lots of heroin that day. Whilst the reliability of the complainant was of importance to the count of abduction it was on the count of rape that it was particularly important that the jury receive adequate instructions as to her reliability.

In the circumstances of this case the Crown could not exclude the possibility that the lies, on which it so heavily relied, were told in consciousness of guilt of abduction rather than rape. Without that support, the strength of the case for rape was substantially weakened. I am conscious of the fact that the complainant was cross-examined at length and undoubtedly impressed the jury, notwithstanding the slips and errors in recollection which she acknowledged. On the other hand, as counsel for the applicant acknowledged in his address, the applicant was a hopeless witness in his own cause, admitted telling many lies and in his evidence gave what amounted to his fourth version of some of the events. That in my view, was all the more reason why the task of defence counsel should have been facilitated by the judge rather than be made the subject of pronounced criticism and to have been significantly devalued before the jury.

I am left with the view that the conviction for rape was unsafe and unsatisfactory, and that conviction should be quashed. Ordinarily, I would have concluded that there should be a re-trial, since the factors which rendered this verdict unsafe and unsatisfactory might not be repeated in a re-trial. In this case, however, the applicant has already served almost all of the non-parole period ordered with respect to both counts.

In these circumstances, I consider that the appropriate orders on the application for leave to appeal against conviction should be as follows. The application for leave to appeal against conviction on count 1 should be dismissed and that conviction be confirmed. The application for leave to appeal against conviction on count 2 should be granted, the appeal be allowed and the conviction be quashed. There should be a verdict of acquittal entered on count 2.

For the reasons given by Batt, J.A. no error has been disclosed in the sentence of two years’ imprisonment imposed on count 1. Accordingly, the application for leave to appeal against sentence on that count should be dismissed, and the sentence of two years’ imprisonment be confirmed.

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[2003] VSCA 165

29 October 2003