R v Salih

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 365 of 2003

THE QUEEN
	v.
TUNCER SALIH

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JUDGES:	CHERNOV and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 September 2005
DATE OF JUDGMENT:	2 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 282	Second Revision: 5 December 2005

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Criminal law – Rape – Directions to jury – Prior inconsistent statements – Putting the applicant's case fairly before the jury – Uncharged acts – Crimes Act 1958, s.37 – Failure by trial judge to warn about the effect on the complainant's reliability as a witness of the consumption of alcohol and marijuana.

R. v. Yusuf [2005] VSCA 69 (6 April 2005) considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.W. Beale	Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr. L.C. Carter	Koutsantoni & Associates

CHERNOV, J.A.:

I have had the benefit of reading, in draft, the comprehensive reasons for judgment of Harper, A.J.A. in this matter and the concurring reasons of Nettle, J.A. I agree with Harper, A.J.A. that, for the reasons he gives, the applicant should succeed on grounds 1 and 3, as well as on the proposed ground 5. In the circumstances, it is unnecessary to deal with the proposed ground 4 and, therefore, I would not grant leave to add it. Harper, A.J.A., however, dealt with the proposed ground and concluded that it should be rejected. In the ordinary course, given my conclusions, there would be no need for me to refer to his Honour’s consideration of this ground but, for reasons which will become apparent, it is necessary for me to deal briefly with certain aspects of them.

The applicant’s essential case under cover of proposed ground 4 was that the learned trial judge failed in his charge to relate his directions as to consent to the facts in issue as was required by s.37(1) of the Crimes Act 1958. This Court has recently dealt with the application of this provision in R. v. Yusuf[1] and neither party before us sought to challenge the correctness of the reasoning of Winneke, P. in that case, who delivered the leading judgment. Nevertheless, in the context of dealing with the proposed ground, Harper, A.J.A. undertook a lengthy analysis of this provision and of the reasoning of the learned President in relation to it and concluded that his Honour’s reasoning was flawed. Since I was a member of the Court that decided Yusuf, and since I agreed with the impugned reasons of Winneke, P. in that case, as did Charles, J.A., I have given careful consideration to Harper, A.J.A.’s analysis of the matter but, as presently advised, I remain, with respect, of the view that the learned President was plainly correct in his construction of s.37 and in his application of it to the circumstances of the case before him. That Winneke, P. was correct in this respect is made apparent, I think, when one looks at the context in which the matter was considered by him.
[1][2005] VSCA 69.

As the learned President explained[2], the principal argument pressed by the Crown was “that s.37 had no real part to play in this trial because it was largely directed to those cases where the complainant to a sexual assault had ‘frozen’ during the course of the sexual act.” Accordingly, and also because the issues were obvious, so the Crown submitted, the trial judge was under no obligation to relate his directions as to consent to the facts of the case, more particularly, to the three items of evidence summarised by Winneke, P. at [15] in his reasons for judgment[3] or to remind the jury of these items of evidence.
[2]At [17].
[3]The three items of evidence were: (1) that the complainant remained in the applicant’s room for some two hours after the alleged offence; (2) that the complainant conceded that she saw a large amount of money in the applicant’s possession; and (3) that the applicant said in his record of interview that, prior to their going into the hotel room, he and the complainant held and kissed each other.

This submission was rejected by the learned President, who emphasised that s.37(1) did not limit the obligation of a trial judge to relate the directions to the issue in the proceeding. His Honour essentially explained how the obligations in s.37(1) operated consistently with the common law obligations imposed on a trial judge in that regard as was recognised in Alford v. Magee[4]. Relevantly, Winneke, P. said[5]:

“Whenever the central contention in a rape case is one concerning the states of mind of the accused and the complainant, and not one relating to the issue of penetration, the jury will always have to consider circumstantial evidence of facts bearing upon that central issue. It is, in my view, that evidence which bears upon the ultimate issue in the proceedings which is comprehended by s.37(1) of the Crimes Act when it requires the judge to relate any direction given in accordance with the section ‘to the facts in issue in the proceeding so as to aid the jury’s comprehension of the direction’”. (Emphasis added.)

A little later, his Honour said:
“... it seems to me to be tolerably clear that the requirement imposed on the judge is to relate his direction as to the accused’s belief in consent to the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence. After all, that is the natural meaning of the words contained in the section, and is – in any event – in conformity with the procedural obligation imposed by the common law upon the judge, as made clear in Alford v. Magee.”

[4](1952) 85 C.L.R. 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto, JJ.

[5]At [18].

The learned President made it plain that the three items of evidence constituted circumstantial evidence that clearly bore on the alleged states of mind of the applicant and the complainant and thus, on the issue of consent, including the reasonableness of the applicant’s claimed belief that the complainant had consented to the sexual act. The contrary was not suggested by the Crown. It seems to me that, if accepted, this evidence would have provided the context, favourable to the applicant, in which the jury were to consider whether the Crown had excluded the applicant’s contention that he believed the complainant was consenting to the sexual act. Ordinarily, the whole of that evidence (and any other relevant circumstantial evidence) would be taken into account in determining the ultimate issue, and it would not be a matter of the jury analysing it on a piecemeal basis in order to determine if, on one piece of circumstantial material, the Crown had made out its case.[6]
[6]See Chamberlain v R (No.2) (1984) 153 C.L.R. 521 at 536 per Gibbs, C.J. and Mason, J.; Shepherd v R (1991) 170 C.L.R. 573 at 579 per Dawson, J.; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 V.R. 125 at 129 per Winneke, P. and at 141 per Tadgell, J.A.; and Nolan v Nolan [2004] VSCA 109 at [119]-[120] per Chernov and Eames, JJ.A.

It was in those circumstances that Winneke, P. concluded that s.37(1) required the trial judge to relate his directions on the law to the three specified items of evidence and that his failure to do so constituted an irregularity that amounted to a miscarriage of justice. As I have said, I see no flaw in the President’s reasoning. I think that, contrary to the view taken by Harper, A.J.A., the mere fact that the first item of evidence related to a period subsequent to the sexual act did not deprive it of relevance to the issue of what was the state of mind of the accused and the complainant, given that it plainly constituted part of the whole context in which the alleged offending occurred. Similarly, I consider that the second item of evidence was also relevant to the applicant’s claimed state of belief on the question of consent. It went to the question whether the complainant sought to extort money from the applicant and complained only when, on his version of the facts, he refused to meet her demand. The third item of evidence was also plainly relevant to the circumstances surrounding the offending and the question of the applicant’s state of mind. Given these circumstances, it was incumbent on the trial judge, as Winneke, P. said, to relate his directions on the law pertaining to consent to that evidence.

I note for completeness that Harper, A.J.A. has dealt at some length with the requirements of s.37(1)(b) of the Crimes Act, which his Honour described as a provision that was intended by Parliament to do “justice to the complainant”. It may be that this is a correct characterisation of the provision, but it seems to me to be irrelevant to the central issue that was before the Court in Yusuf, namely, whether the applicant received a fair trial according to law given the failure by the trial judge to comply with the requirements of s.37(1)(a). Be that as it may, as I have said, I see no error in the impugned reasoning of Winneke, P. In particular, I see nothing in his reasons that gives rise to the inference for which Harper, A.J.A. contends, namely, that the direction which the President said was required by s.37(1) was based on the premise that a male is entitled, unless the complainant gives overt indication to the contrary, to assume that she is willing to “move beyond kissing” and to act upon that assumption.

But even if I had some doubts about the correctness of the impugned reasoning in Yusuf, for the brief reasons I give below, I consider that it would be inappropriate for this Court, as presently constituted, to seek effectively to overturn this considered decision. I put to one side for this purpose the view of Nettle, J.A. that, at least for the present, Yusuf should be taken to have determined the effect of that provision. First, as I have noted, neither party before us contended that the reasoning in Yusuf should not be followed and consequently, the matter was not argued before us. In those circumstances, I think it is undesirable for this Court to seek to identify, gratuitously, likely error in Yusuf, particularly where nothing turns on it in the appeal. Secondly, it has been accepted by this Court that, although it is free to depart from its earlier decisions, it should do so only in exceptional

circumstances and when compelled to the conclusion that the earlier decision was wrong.[7] The practice was summarised by Callaway, J.A. in R v Tait[8]:
“…The Court of Appeal would usually follow a decision of the Full Court and convene a Full Bench of five or more judges if the decision were to be reconsidered. Compare Nguyen v Nguyen. There were, nevertheless, exceptional circumstances in which the Full Court constituted by three judges was at liberty not to follow a prior decision. A recent example is Avco Financial Services Ltd v Abschinski. It may be that in future we would extend those exceptional circumstances to enable a greater number of Full Court, and in due course some of our own, previous decisions to be reviewed by a court of three. There are some old precedents, and some ex tempore judgments, where that course might be more in the interests of efficiency and justice than convening a Full Bench. But, where an important point of principle is involved, I would not propose a departure from the existing practice, which is long established and beneficial if properly applied. Compare McKinnon v Gange.” (Citations omitted).

I am not persuaded that the circumstances here are so exceptional, or that the impugned decision is so plainly wrong, that the ordinary practice to which I have referred should be disregarded.

[7]See Nguyen v Nguyen (1990) 169 C.L.R. 245 at 269 per Dawson, Toohey, and McHugh, JJ., with whom Brennan and Deane, JJ. relevantly agreed at 250 and 251 respectively; Farrar v Western Metropolitan College of TAFE [1999] 1 V.R. 224 at 228-229 per Charles, J.A., with whom Winneke, P. and Batt, J.A. agreed; and R v Su & Ors [1997] 1 V.R. 1 at 14 to 15 per Winneke, P., Hayne, J.A. and Southwell, A.J.A.

[8][1996] 1 V.R. 662 at 666.

Consequently, as I have said, I would give the applicant leave to add proposed ground 5, but would refuse the application for leave to add proposed ground 4. I would also order that the verdict of guilty below be set aside and that there be a new trial.

NETTLE, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Harper, A.J.A.

I agree with his Honour, for the reasons that he gives, that the trial judge’s

directions to the jury were inadequate as to the effect of the complainant’s prior inconsistent statements, and thus that ground 1 of appeal is made out.

I also agree with his Honour that the trial judge failed sufficiently to identify the issues and to relate them to the evidence, and thus that ground 3 of appeal is made out. I add that there have been a number of cases in recent years in which this court has stressed the importance of the task of a trial judge of identifying the issues and relating the issues to the evidence.[9] It is therefore disappointing and it is regrettable that there continue to be cases, like this one, in which a trial judge either ignores the task or gives it scant attention. I do not overlook the difficulty of what is involved. Plainly, it is difficult, at least to do well, and it is can be very burdensome. But however difficult or burdensome it may be, it is necessary that it be done. Failure to attend to the task with the effort and enthusiasm that it warrants will usually result in the need for a new trial and the lamentable consequences, for all concerned, which inevitably attend such an exercise.
[9]See, for example, R v De’Zilwa (2002) 5 V.R. 408 at 410 at [4], [5] and [6]; R v Leusenkamp (2003) 40 M.V.R. 108, [2003] VSCA 193 at [30]; R v Todo [2004] VSCA 177 at [26]; R v Soldo [2005] VSCA 136 at [75], [76] and [77]; R v Dao [2005] VSCA 196 at [23].

I am afraid that I do not agree with Harper, A.J.A. about ground 4 of appeal. For present purposes, I consider that the effect of s.37 of the Crimes Act 1958 should be taken as having been determined in R v Yusuf[10]. Neither the applicant nor the Crown contends for a different view and, in any event, I do not consider that it is for this court, as at present constituted, to pass upon the rectitude of another decision of the court constituted of three members. If Yusuf is to be reconsidered, the exercise should be undertaken in a case in which issue is squarely raised and fully argued, before a court of five members. In my judgment ground 4 of appeal is made out.
[10][2005] VSCA 69.

I am also of opinion that ground 5 of appeal has been made out. The uncontradicted evidence was that the complainant smoked 19 cones of marijuana in the hours leading up to the time of the alleged offence. As counsel for the Crown properly conceded, that is a massive amount of a powerful psychotropic substance for one person to consume in the space of one sitting. But even without the concession, and without getting into nice questions about the need for expert evidence,[11] it would be apparent to an experienced criminal trial judge that the effects upon perception and recollection of 19 cones of marijuana are likely to be at least as significant as the effects of a major bout of drinking. Contrastingly, it is improbable that the majority of jurors would be as familiar, if at all familiar, with the effects of marijuana as with the effects of alcohol. Accordingly, it cannot be assumed that it was within the competence of all or even most of the jurors to assess for themselves the likely effect upon the reliability of the complainant’s evidence of having consumed so much cannabis so close in time to the events in issue. It follows that a warning was called for.
[11]Cf. R v Minaoui [2004] VSCA 126 at [2] per Batt, J.A. and at [10], per Buchanan, J.A.

Admittedly, there was evidence that the complainant said to police when interviewed that, after smoking the marijuana, she was: “…feeling pretty fucked.” And as she put it: “I couldn’t move or talk I was just sitting there, staring. I didn’t have any feelings”. One suspects that that was something of an understatement. But however that may be, and for the reasons already expressed, it is far from clear that the jury would have perceived the significance of the observation or had it in mind when they came to assess the complainant’s credibility on matters in issue.

In those circumstances I consider that the judge was bound to point out to the jury in specific terms the evidence that the complainant had smoked 19 cones of marijuana, and to direct their attention to all that the complainant had said to police about the effects of the marijuana on her, and to direct the jury that it would be unsafe to convict the applicant on the complainant’s evidence unless having thoroughly scrutinised her evidence they were convinced of its truth and accuracy.[12]
[12]Director of Public Prosecutions v Faure [1993] 2 V.R. 497 at 504; R v Miletic [1997] 1 V.R 593 at 605.19; R v Minaoui [2004] VSCA 126 at [62]-[73] in diss.

In the result, I would allow the application to add Grounds 4 and 5 and I would allow the application for leave to appeal against conviction. The appeal

should be taken as having been heard instanter and the conviction should be quashed. I would order that a new trial be had.

HARPER, A.J.A.:

This is an application for leave to appeal against conviction. It follows a trial the evidence in which commenced in the County Court at Melbourne before lunch on Monday 1 December 2003, after the conclusion of opening addresses from counsel which themselves began that morning. The last of three witnesses stepped down before lunch the following day. The jury retired to consider its verdict at 10.37 a.m. on Wednesday, 3 December. At 11.21 a.m. on Thursday, 4 December, it returned a verdict of guilty on count 1, by which the applicant was charged that, on 22 October 2001, he committed vaginal rape. As a consequence, no verdict was taken on count 2 (sexual penetration of the vagina of a child under the age of 16 years). A verdict of not guilty was at the same time brought down on the two remaining counts: count 3 (anal rape) and count 4 (sexual penetration of the anus of a child under the age of 16 years). Each charge arose out of the same encounter.

A plea was heard by the trial judge on 5 December 2003. On 12 December, the applicant was sentenced to five years’ imprisonment, three years of which were to be served cumulatively upon a sentence of seven years’ imprisonment imposed on 1 September 2003 following the applicant’s conviction by another jury of three counts of rape and two counts of attempted rape. The total effective sentence now being served by the applicant is therefore ten years’ imprisonment, with a non-parole period of seven years.

The notice of application for leave to appeal against conviction, which was filed on 19 December 2003, specified three grounds. First, that the trial judge erred in his directions to the jury about the law in relation to prior inconsistent statements made by a witness (the complainant). Secondly, that the trial judge erred in his charge by summarising, in a way that failed to put the applicant's case fairly before

the jury, the evidence given at the trial. Thirdly, that the trial judge did not adequately direct the jury about the law in relation to uncharged acts.

The applicant now seeks to add two new grounds of appeal. Proposed ground 4 is that the judge “erred by failing to comply with s.37 of the Crimes Act 1958 in that he failed to relate his directions in respect of consent and mens rea to the facts in issue in the proceeding”. Proposed ground 5 is that the judge “erred by failing to give any direction or warning as to the way in which the reliability of the complainant’s evidence may have been affected by her consumption of alcohol and marijuana.” The Court permitted counsel for the applicant to argue those grounds, while reserving its decision on the application to add them as grounds of appeal.

The applicant was born on 23 October 1976. The incidents from which the present application arises therefore occurred on the eve of his 25^th birthday. The complainant was born on 17 September 1986. That being so, she was ten years younger than the applicant. His evidence, however (which she denied), was that she presented herself as being 17 years old; and he believed her. She said that she told him her true age. That was an issue in relation to counts 2 and 4, but is not presently relevant.

In October 2001 the complainant was a house guest at the home of a somewhat younger friend. The friend, to whom I shall refer as K.R., lived in Dandenong with K.R.’s mother and her mother’s resident partner, Stephen. On the evening of 21 October, three of the partner’s companions had joined K.R., her mother, Stephen and the complainant for drinks. Those present also consumed a mix of tobacco and marijuana in roughly equal parts. Indulgence was shared, it seems happily, by both adult and child, regardless of age. When she gave her evidence in chief, the complainant’s estimate was that she had her first drink at 7.00 p.m.; she had earlier told the police that her drinking began at 11.00 p.m. According to her, the applicant arrived at about midnight. She had first met him a short time before, at a party held to celebrate Stephen‘s 40^th birthday. Some time later, after the complainant had smoked between 16 and 18 “cones”, and after this had made her feel “very stoned and mellowed”[13] she and her friend K.R., accompanied by the applicant and the applicant’s cousin, left the house in the cousin’s car. In the hours which followed, K.R. and the cousin continued in that vehicle, while the complainant and the applicant transferred to one belonging to the applicant. The complainant maintained that this arrangement was made without her participation, and indeed somewhat against her will; it involved her being guided, reluctantly, by the arm to the applicant’s car.
[13]T.25.

The two of them travelled to Aspendale beach. As the complainant told the story in her evidence in chief, the car was left in a car park while she and the applicant walked along the beach. She was, she said, “still stoned”, although the effects of the consumption of marijuana “was more mellowed off me than I was feeling at the start”.[14] He produced a necklace which he placed around her neck, saying “I want you to have this because I think you’ll appreciate it the most.” He then tried to kiss her. She reacted by telling him that “he could have his necklace back if all he wants is a fuck.”[15] Undeterred, he took her by the arm “and started walking down behind the boatshed.” When there, the applicant held the complainant by the arm and tried again to kiss her. She “was pushing him away and telling him to stop it and to leave me alone.” Although he said that he “really liked her”, he became more aggressive. He “grabbed me by the top of my shoulders and forced me onto the ground on my back”, using “strong force”, after which he “hopped on top of me.”[16] She told him “to get off me and to fuck off and I didn’t want him doing it to me.”[17] He nevertheless pulled down her pants and underwear and then “he jammed his dick inside of my vagina.” She was crying while this was going on; and, although she told him to stop and that she did not want him “to do this to me”[18] he (according to her) penetrated her both vaginally and anally. She said in evidence that she was very scared. She wondered whether she would be killed.
[14]T.27.
[15]Ibid.
[16]T.28.
[17]T.29.
[18]T.30.

Eventually – the complainant said that the vaginal penetration alone lasted “[a]bout five or ten minutes”[19] – the applicant “hopped off”. She ran back towards the car park, where she saw the headlights of what turned out to be the applicant’s cousin’s car, with K.R. in it. The complainant in her evidence said that she called out to K.R.: “Help me, I need your help”. But then the applicant “come back over and grabbed me by the arm and put me into the car”.[20] During the ensuing journey, the complainant asked the applicant why he did “that” to her, given that she had “told [him] to stop it and to leave me alone”.[21] She says that his reply was: “No, [you] didn’t”; and then, when she responded: “Yes I did, plenty of times”, he said: “Well, you should’ve told me earlier”.[22]
[19]T.31.
[20]T.32.
[21]T.33.
[22]Ibid.

The encounter, on the complainant’s version of it, ended in a car park near K.R.’s home. When the car pulled up, the applicant told her that she had “better not tell anyone about it”. The complainant alighted, told the applicant to “fuck off”, and sought refuge in K.R.’s house. When she was let in, she told K.R. that the applicant had raped her.

In cross-examination, it was put to the complainant that she had previously given a different account of the events which took place in, and as she ran towards, the car park after - as she claimed - the rape occurred. Other prior inconsistent statements were put to her as well. These formed the basis of the applicant’s defence at the trial; they now sustain ground 1 of this application.

As recorded in his record of interview, the applicant told the police that after he and the complainant arrived at a car park adjacent to the Aspendale beach they “[j]ust talked a bit and got out” and went for a walk.[23] The applicant continued his account in answer to question 227:

“And I said, ‘yeah, you’re a nice girl too, you know,’ this, this, that. And then we just – we went for a walk and she goes, ‘Where are we going?’ and I said, ‘Well, we’ll sit down’ so she goes ‘Yeah, alright.’ We sat down. And we got up, I said, ‘We’ll go to the car’, went to the car. She goes, ‘No, no, no’, she goes – said, ‘Don’t … it’s too’ – I wanted to kiss and stuff and she said, ‘There’s too much light’. So I said, ‘Well, we’ll go over there’, we went over, we just started kissing. From then on one thing led to another and that was it.”

[23]Answers 221 and 222.

A short time later in the interview, the applicant told the police that he didn’t do anything to harm “the girl” and asked her “Are you sure?”[24] He continued, in the course of giving the same answer: “She goes, ‘No’ …”. He was then asked “Did you have intercourse with her?” He replied: “Yes, I did.”[25] Asked whether he or the complainant took her pants down or off, he replied: “She was helping.”[26] Consistently with this, he said that, while he kissed her, she kissed him; and: “I think she said ‘Do you want to, you know, lay down?’ I said, ‘Alright’. And … that was it.” He also denied that she had ever said “Don’t” or “You can have your necklace back if you just want a fuck”, or that he should get off and leave her alone. He denied, too, that he had ever penetrated her anally.
[24]Answer 234.
[25]Answer 235.
[26]Answer 269.

The applicant told the police that, after they returned to Dandenong, he and the complainant went to a Coles store together. At some point he told her that it “was just a one night stand thing.” She then “started freaking out … and opening my car … ‘cos she really liked me”.[27]
[27]Answers 349 and 350.

This is the general factual matrix against which the present application must be assessed. Ground 1 of the grounds of appeal requires consideration of other evidence as well. The applicant contends that the “trial judge erred in his directions to the jury as to the law in relation to prior inconsistent statements made by” the complainant. It is therefore necessary to examine those statements as well as what the learned trial judge said about them.

The applicant identifies nine instances of concern. Two do not, while the remainder do, touch upon the events said to have occurred at Aspendale beach. The first arises from differences between the times given by the complainant for the commencement of her drinking on 21 October 2001. In her evidence, she said that this was 7.00 p.m. A month after the event, she told the police that it was 11.00 p.m.

The second instance in the first category is also related to the complainant’s ingestion of drugs on 21 October. At the committal she accepted that her memory would not have been assisted by the marijuana she smoked that evening. At the trial she maintained that her smoking on that occasion did not affect her memory “at all”.[28]
[28]T.88.

It was after they arrived at the beach that, according to the complainant, the episode with the necklace began. But the details as recounted by her differed as between accounts. At the trial, the complainant said that: “We were walking along the beach, and then he tried putting the necklace around me and that’s when he tried kissing me and that’s when I told him that he can have the necklace back if all he wants is a fuck.”[29] The applicant then, according to the complainant, grabbed her by the arm and led her to a boatshed. On the other hand, she told the police that it was not until they reached the boatshed that the first attempt to kiss was made.
[29]T.54.

The applicant next points to some conflict in the complainant’s evidence about the time at which the applicant, as she alleged, held her hands above her head. At the committal she had said that after she was pushed to the ground, but while she was still fully clothed, he had held both her hands above her head. At trial, her evidence was that “when he was inside of me”[30] she tried to push him off with her hands; he then put one and then the other of her arms above her head and held her hands there, one of his holding one of hers, while his other held her other.
[30]T.60.

Clothing was the subject of the next inconsistency. At the trial, the complainant agreed that (in the words of counsel for the applicant, who was cross-examining her) her “jumper remained on throughout the incident”.[31] During the committal, however, the complainant (as she agreed at the trial) stated that, after intercourse, her “jumper was still off”.
[31]T.68.

The complainant alleged both vaginal and anal rape. At the committal, she swore that she was first penetrated anally. At the trial, she repeated what, using somewhat different words, she had told the police: that vaginal intercourse took place during which the applicant ejaculated; he:

“… then pulled out and went up my anal a little bit… He just rammed it up there… I started screaming and he took it out.”[32]

[32]T.31.

This leads to the seventh and eighth inconsistencies asserted as part of the first ground of appeal. At the committal, the complainant said that she began screaming when she saw the headlights of what turned out to be the car in which K.R. was a passenger. As I understand things, however, it was never her story that the anal intercourse and the sighting of the headlights coincided. Hence the seventh inconsistency. The eighth arises from her evidence at the committal to the effect that the applicant was still on top of her at the time she saw the headlights and began screaming. Yet when, at the trial, his Honour asked her: “From where you were when you [were] on the ground, would it have been possible to have seen the headlights in the car park?”, her answer was: “No, I would have had to be standing”.

The final inconsistency concerns something which the complainant included in her evidence at the trial, but omitted from her statement to the police. She said at the trial, but did not say to the police, that when she saw K.R. in the Aspendale car park, she yelled: “Help me, I need help.”

The applicant invited us to accept that counsel who appeared for him at the trial “relied heavily on the prior inconsistent statements of the complainant to undermine her credit” and that this was “the key issue in the trial.”[33] It was not. The key issue was the complainant’s consent, or lack of it. Consistently with the submission, but also with perfect justification, counsel for the applicant on the morning of 3 December 2003 asked his Honour to give an appropriate direction on the use the jury should make of those statements. This was immediately before the learned trial judge resumed his charge to the jury. His Honour responded: “I will mention it … that’s one of the issues you’ve raised as part of your defence, then it’s a matter for them what they make of it.”[34]
[33]Applicant’s outline of submissions on application for leave to appeal, 5 September 2005, para.8.
[34]T.153.

When, shortly after this exchange, the jury returned to the courtroom, the judge then addressed them as follows:

“One matter which has been raised by counsel is prior inconsistent statements. That is an issue which, of course, goes to the reliability of a witness’ recollection of events, and can be used by you in that sense. It goes to the truth of what was said, and you may or may not accept what a witness says. Of course, if they give different versions of events it may indicate some difficulty of recall. How you deal with that is entirely a matter for you.”[35]

[35]T.154.

The subject was touched upon a little later in the charge. When dealing with the cross-examination of the complainant, his Honour said:

“Well now, she was cross-examined at quite some length, and she was taken to a number of occasions where she had said something in her statement and it differed in some respects from her evidence in chief and she conceded that there were some variations in the evidence, I think it is fair to say. It is my comment that she staunchly maintained her accusation that she had been raped, that she had sexual intercourse against her will.” [36]

[36]T.158.

Counsel was right to make the request that he did. The learned judge’s response was, in my respectful opinion, unsatisfactory. I accept that the credibility of the complainant was an important, although not the key, issue in the trial. In those circumstances it was in my opinion incumbent upon his Honour to identify for the jury each prior inconsistent statement upon which the applicant relied as indicating that the complainant might be an unreliable witness.[37] It was then necessary for the judge to tell the jury in clear and readily comprehensible language that no previous statement, whether sworn (as in the committal) or unsworn (as in the complainant’s statement to the police), constituted evidence unless the complainant, while giving evidence at the trial, adopted it; but they were entitled - although, because it was a matter for them, not bound - to conclude that the inconsistency, if they found it to be so, reflected adversely upon the complainant’s credit. At the same time, the judge would be entitled to point out to the jury that, for a dishonest witness, the devil is often in the detail, where inconsistencies can catch them out; while the capacity of the most honest witness to recall matters of detail (such as where their hands were at various times during sexual intercourse, whether rape or not) can be adversely affected without that bearing at all on their credit on issues of central importance. Whether this complainant fell into one category or the other was a matter for the jury alone.
[37]Not every previous statement made by a witness who then at the trial gives evidence inconsistent with that statement is a proper basis for the conclusion that that witness is unreliable: see Driscoll v The Queen (1977) 137 C.L.R. 517 at 537 per Gibbs, J.

The learned trial judge failed to identify the prior inconsistent statements in question here, and failed to direct the jury in comprehensible terms about the relevant law relating to them. He also failed to give to what little he did say the authority of his office as a judge. For these reasons, ground 1 is in my opinion made out.

Ground 2 is that the judge erred by providing to the jury during the course of his charge a summary of the applicant’s case which “failed to put the [applicant’s] case fairly before the jury.” Not only did he not deal adequately with the prior inconsistent statements, but (as the applicant asserts) he also to gave insufficient time in his charge to the cross-examination of the prosecution witnesses, especially given that there were inconsistencies as between the several accounts. Furthermore, he did not “refer in any detail to the contents of the applicant’s record of interview with the police”, and he made only brief reference to counsel’s closing address.

The relevant law has recently been succinctly stated by this Court (Buchanan and Vincent, JJ.A. and Byrne, A.J.A.) in R v Dao.[38] The trial judge must define the legal principles necessary for the determination of the case and communicate them to the jury in a manner which will assist them in carrying out their role. He or she must also assist the jury in its fact-finding function by identifying the issues and relating them to the evidence, and by putting the case for the prosecution and the accused with such clarity that, when the jury retire to consider their verdict, they have an informed understanding of the position of both sides. In all but the most straightforward of cases, this will entail reminding the jury of the evidence, “which is, after all, the material with which they must undertake their task”.
[38][2005] VSCA 196.

The judge himself told the jury that he would not spend any time dealing with the cross-examination. Nor did he, save for the passage set out at paragraph [42] above, and for a reference to answers given by the complainant about the effect of her drinking that night.[39] As for the applicant’s interview with the police, his Honour mentioned that the jury “might regard it as very important”[40], that they would have access during their deliberations to a copy of the CD on which it was recorded, and that “at all stages” during the interview the applicant “denied that he was guilty of rape.”[41] But otherwise his Honour said nothing of present relevance about it, mentioning only the answers given by the applicant to questions about his assessment of the complainant’s age.
[39]T.159.
[40]Ibid.
[41]T.160.

Among the particular complaints by which the applicant seeks to support this ground is a submission that his Honour made no reference to what were described in the applicant's outline of submissions as "the major conflicts in the evidence of the complainant and K.R." One of these concerned a difference in the detail of the account of what happened at the service station before the complainant, the applicant, K.R. and the applicant's cousin changed their travelling arrangements so that the complainant and the applicant thereafter travelled in one car and the other two in another. In my opinion, this was not a difference to which the judge was obliged to make reference in his charge. Nor, in my opinion, was the judge required to direct the jury's attention to the fact that, when the complainant returned to the car park after having intercourse with the applicant, she said (according to her) "Help me" whereas K.R. said they did not then speak. More significant was a difference between the evidence of the two about what happened when the complainant returned to Dandenong. According to her, she was crying as she knocked on the door seeking entrance; and when K.R. let her in, the complainant said, referring to the applicant as “TJ”: "TJ… raped me." According to K.R., by contrast, it was not until after the complainant and the applicant returned from the Coles supermarket that the complainant said she had been raped. This discrepancy was, it seems to me, one to which the jury's attention ought to have been drawn.

The judge commended the two final addresses for their brevity. He then summarised the prosecution case. The Crown, he said, conceded some inconsistencies in the complainant’s evidence, while maintaining that she was consistent when it mattered. The jury should therefore be satisfied that she was raped. His Honour continued:

"So far as the defence is concerned, the defence says, well, there is no scientific evidence in this case. He said all his client can do is claim she was consenting, and he asked you to approach the evidence in a logical way, and test the versions of evidence that you have heard in this trial. He says there were a lot of inconsistencies as to detail, as to what happened, and he said that can be explained by the consumption of alcohol and no doubt cannabis, and then he goes through a number of parts of the evidence which he says establish inconsistencies, and concludes by inviting you to find the accused not guilty … on the basis that you should have a reasonable doubt, he says. There was no rape, it was consensual … So he invites you to find the accused not guilty."

In my opinion, ground 2 is made out. I do not think that his Honour's charge assisted the jury sufficiently in its fact-finding function. It did not clearly identify the issues; nor did it relate those issues to the evidence, or put the case for the prosecution and the accused with sufficient clarity. I do not by this mean to suggest that elaborate directions are always necessary – simply that, however short the evidence, the requirement that it be related it to the issues with succinctness and clarity remains.

Ground 3 is that the judge did not adequately direct the jury about uncharged acts. There was evidence that it was the applicant who prepared for consumption at least some of the marijuana consumed by the complainant, the applicant and others on the evening in question. There was also evidence, including an admission from the applicant made during the course of his police interview, that he was a supplier, if not the supplier, of the marijuana then smoked at the Dandenong premises. The applicant submits that, in those circumstances, the jury should have been warned that this evidence “was of no use in the issues they had to determine and that it was impermissible to reason that because of this evidence that the applicant was likely to have committed the offences charged.”

I do not agree. In my opinion, a warning of the kind now suggested by the applicant as being appropriate would have been counter-productive. The evidence about the consumption of marijuana and alcohol was relevant to two issues: first, the complainant’s capacity to exercise her free agreement; and, secondly, her capacity remember the events of the evening. The identity of the supplier of either drug was irrelevant, though the references that in this context linked the applicant to the marijuana did slip in - doubtless as background material. In these circumstances, two sentences from the judgment of McHugh, J. in KRM v The Queen[42] are apposite:

“If evidence tendered to prove a subsidiary issue … reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate.”

In my opinion, any reference by the judge to the applicant’s involvement in the supply, preparation or consumption of marijuana would have been prejudicial to him. In the absence of any request from the applicant’s counsel (and there was none), his Honour was right to leave the topic well alone. Ground 3 therefore fails.

[42](2001) 206 C.L.R. 221 at [39].

The (proposed) ground 4 is that the judge erred by failing to comply with s.37 of the Crimes Act 1958 (“the principal Act”). That section requires the judge who is presiding over a trial in which the accused stands charged with a sexual offence, to give - in certain circumstances - certain directions to the jury. It also requires that, in other circumstances, the judge not give those directions.

Legislation such as this, which seeks to govern what judges say or refrain from saying to juries, might be expected to spring from Parliament’s perception that judges have not always discharged this aspect of their duties as Parliament would wish. It is therefore, it seems to me, important that it be interpreted with a sensitivity commensurate with the need to understand both the problem and the legislature’s preferred solution. To that end, an excursus into the history of the legislation of which the section forms a relevant part is, I think, warranted.

On 26 November 1991, the then Attorney-General (The Hon. James Kennan QC) moved that the Crimes (Rape) Bill be read a second time.[43] In his speech in support of the motion, the Attorney said, among other things:

"The Bill contains a clear and comprehensive legislative definition of the offences of rape and indecent assault.
It will become an extremely valuable document not only for the courts but also in educating the general community about what the criminal law regards as unacceptable sexual conduct.
The major elements of the common law offences are retained, but they are expressly stated and defined in order to remove uncertainty. Of particular importance is the element of consent. The Bill makes it clear that consent means free agreement, not submission induced by fear of force or other harm. It means real and informed agreement, not exploitation of a person who does not understand the sexual nature of an act, or who is incapacitated by a drug.
There is a common view that a person who really does not want to be raped would strongly protest and put up resistance. This view fails to appreciate how terrifying an ordeal sexual assault is, and the impact of terror on the victims.
To reduce the effects of such misconceptions in the criminal justice system, s.37 of proposed new subdivision (8) requires a judge to direct a jury not to presume that a person freely consented just because she or he did not protest or physically resist or did not sustain physical injury.
The Bill retains the requirement that, to be guilty of rape or indecent assault, a person must have known that the other person was not consenting to a sexual act or was aware that the other person might not be consenting.”

[43]Hansard, Legislative Assembly, 26 November 1991, pp.1998-1999.

I pause here to note two of the purposes which, according to the Attorney, the legislation was intended to advance. The first is community education; and the second is a reduction in a common misconception - that which would place in the category of willing participants all those who do not protest or resist when engaged in sexual intercourse. Neither purpose could be achieved unless the directions given by judges to juries were informed by the truth that justice and morality alike impose a responsibility upon those who would engage in sexual activity. They must first inform themselves about the willingness of any other potential participant. And they must then fully respect that other’s wishes.

It is reasonable to suppose that, in 1991, Parliament saw the courts as not, in relevant respects, adequately appreciative of that truth. This is a serious charge for Parliament to make. Even more serious was the courts’ failure properly to respond to it.

When enacted, the Crimes (Rape) Act 1991 (Act No. 81/1991) introduced into the principal Act a raft of new provisions dealing with sexual offences. These included the definition of rape set out in s.38(2) in the following terms:

"(2) A person commits rape if –
(a)he or she intentionally sexually penetrates another person without that person's consent while being aware that the person is not consenting or might not be consenting; or
(b)after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting."

This definition is to be found in a new subdivision, sub-division (8A), of the principal Act. It is headed “Rape and Indecent Assault”. It is to be found in Division 1 – "Offences against the Person" - of Part 1 – "Offences". Sections 36 and 37 are, in turn, part of the preceding subdivision – subdivision (8) – which is headed “Sexual Offences (General Provisions)”. They are presently relevant. As enacted in 1991, they read as follows:

"36. Meaning of consent
For the purposes of subdivisions (8A) to (8D) 'consent' means free agreement. Circumstances in which a person does not freely agree to an act include the following:
(a)the person submits because of force or the fear of force to that person or someone else;
(b)the person submits because of the fear of harm of any type to that person or someone else;
(c)the person submits because she or he is unlawfully detained;
(d)the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;
(e)the person is incapable of understanding the sexual nature of the act;
(f)the person is mistaken about the sexual nature of the act or the identity of the person;
(g)the person mistakenly believes that the act is for medical or hygienic purposes.

37. Jury directions on consent
In a relevant case the judge must direct the jury that –
(a)the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement;
(b)a person is not to be regarded as having freely agreed to a sexual act just because –
(i)she or he did not protest or physically resist; or
(ii)she or he did not sustain physical injury; or
(iii)on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person;

(c)in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances."

In 1997 a government of a different political persuasion examined the operation not only of the Crimes (Rape) Act, which its predecessor had introduced, but also of its own Crimes (Amendment) Act 1993. It found that the "important amendments" effected by these enactments, although adopted by Parliament to improve "the operation of the criminal justice system [and] … ensure that our system of justice has the confidence of the Victorian community" were "in need of reform".[44] Given that the courts must strive to maintain that confidence about which Mr Kennan's successor as Attorney-General (The Hon. Jan Wade) was then speaking, it is unfortunate that they were perceived by the government to be as much a part of the problem as of the solution.
[44]These and the quotations following are taken from the then Attorney-General’s second reading speech to the Legislative Assembly on the Crimes (Amendment) Bill: Hansard, Legislative Assembly, 9 October 1997, pp. 429-431.

The Attorney gave numerous examples. First, judges and practitioners alike "often breached the intent behind" provisions designed to prohibit "the cross-examination of a sexual assault complainant about prior sexual history without leave being granted by the court". Secondly, the requirement that, before being permitted to give their evidence by “alternative arrangements” such as closed-circuit television, adult victims of sexual assault must "satisfy the court that they are likely to suffer severe emotional trauma or to be so intimidated or stressed as to be severely damaged as a witness" had "resulted in relatively few adult victims of sexual assault using the alternative arrangements": judges were seen as being overly reluctant to accept that a complainant met the necessary qualifications. The legislation therefore had to be amended so as to "enable alternative arrangements to be available to all victims of sexual assault upon application to the court without the need to fulfil extra criteria." Again, while s.61 of the Crimes Act required that judges "must not warn juries or suggest in any way that sexual assault complainants are an unreliable class of witness" the then "current wording of the direction about delay [in making a complaint] carries an implication that there is a reason to suspect that late complaints may be false." It was thus necessary that a sub-section, sub-s. 61(3), be added to the principal Act by the Crimes (Amendment) Act 1997 to remove that implication. It required that a judge not make any comment on the reliability of evidence given by a complainant in a sexual assault case “if there is no reason to do so in order to ensure a fair trial.” The amendment was seen by the then Attorney as "an important move away from the stereotype of how a sexual assault victim behaves or ought to behave following a sexual assault." By necessary implication, it was the Attorney's view that a standard judicial direction to juries included an inaccurate stereotyping, by judges, of a segment of court users no less interested in the proper administration of justice than accused persons themselves.

These remarks of the Attorney, given in a prepared second reading speech, are pointed enough. But the Attorney did not stop there. The passage which follows is another from that speech, given to the Legislative Assembly on 9 October 1997 (the emphasis being mine):

"The common law that has developed in relation to the use of propensity evidence and the application of the judicial discretion to sever trials has been very conservatively interpreted by the Victorian courts. The approach has invited controversy and called for a review of that area of the law. It has not been well received by the community generally, and more specifically by victims of serial sexual offenders."[45]

[45]Hansard, Legislative Assembly, 9 October 1997, p 430.

Nor, according to the Attorney-General, had the introduction of the new s.37 of the principal Act brought the benefits for which Parliament hoped. Her second reading speech of 9 October 1997 contains the following passage (again, with my emphasis):

"Section 37 of the Crimes Act contains a statutory definition of consent and also sets out a non-exhaustive list of circumstances in which a person does not consent (for example, where the victim was asleep). Section 37 requires judges to direct juries in a particular way where consent has been raised as an issue in the trial. For instance, juries must be told that they must consider the reasonableness of an accused's alleged belief that the complainant was consenting to the act which is the subject of the complaint. Directions have been given to juries under s.37 in circumstances where the direction has no relevance to the trial before the court. For example, a direction about a prior sexual relationship between the victim and the accused has been given in a trial where there was no prior sexual relationship in existence.
The amendment to s.37 will ensure that the relevant directions are given only where consent is an issue in the trial.
Further, the direction must include an explanation to the jury about the application of the direction to the facts of the case."[46]

[46]Ibid. It will be remembered that, when enacted in 1991, s.37 opened with the words: “In a relevant case …”. Some judges took the view that, for practical purposes, this meant “in [almost] every case”.

The points that the Attorney was seeking to make are, I think, clear. First, trials of those charged with sexual offences must do, and be seen to do, justice to complainants as well as to accused. At the same time, the different interests and positions of both must be acknowledged and respected.

The second of the Attorney’s points is of special significance for the courts. The Attorney, in effect, charged that Victorian judges had failed to act in accord with the wishes of the Victorian community as reflected by its elected representatives. Given the separation of powers, and the importance of each branch of government according proper respect to the other, the Attorney could hardly have been more blunt. Even so, it seems that she was too subtle. This is a reflection on the courts, not on her. The courts undermine their constitutional position as a separate and distinct arm of government if they do not listen to such criticism with especial care.

The Crimes (Amendment) Bill was enacted as the Crimes (Amendment) Act 1997 and, relevantly for present purposes, came into operation on 1 January 1998. It affected neither s.36 nor s.38 of the principal Act as amended by the Crimes (Rape) Act 1991 It did, however, amend s.37 with (as it seems to me) a purpose that is plain. The directions about which the section speaks must be given to the jury when (and only when) those directions are relevant to the facts in issue; and, when given, they must relate to those facts so as to aid the jury's comprehension of the direction. Although some repetition is involved, it may be convenient to set out in its entirety the section as amended, with the amendments in italics:

"37. Jury directions on consent
(1)If relevant to the facts in issue in a proceeding the judge must direct the jury that –
(a)the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement;
(b)a person is not to be regarded as having freely agreed to a sexual act just because –
(i)she or he did not protest or physically resist; or
(ii)she or he did not sustain physical injury; or
(iii)on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person;

(c)in considering the accused's alleged belief that the complainant was consenting to a sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances –

and relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction.
(2)A judge must not give to a jury a direction of a kind referred to in subsection (1) if the direction is not relevant to the facts in issue in the proceeding."

The provenance of this provision points directly to its purpose. It was not intended to impinge upon the rights of an accused person. Equally, however, it was not intended to add to those rights. Parliament did not have in mind that s.37 should increase the catalogue of directions which a judge must give to a jury to ensure that a person charged with a sexual offence receives a fair trial. Rather, its purpose was to ensure that justice was done not only to the accused but also to complainants. Hence the concern that a direction of the kind referred to in s.37(1) not be given where it was not only not necessary to advance the interests of justice but might, by distracting the jury or otherwise, give an unjust advantage to an accused.

It would in these circumstances be an especially regrettable and strikingly direct negation of Parliament's intention if, after several attempts to make that intention clear, this Court were to order a retrial because a judge failed to give a direction which Parliament required not be given. Yet there is a danger that this will be the end result if current trends in the interpretation of the section continue. The Court of Appeal has a particular responsibility, it seems to me, to ensure that the danger is avoided; and it must do so by an intellectual engagement with Parliament that, although not always easy to realise, is now vital. The subject – achieving a proper balance between the rights of the accused and the interest that complainants have in themselves receiving just treatment from the justice system - is a difficult, because delicate, one. Parliament’s best endeavours to reflect the will of the community on the subject may not always result in absolute clarity. And in construing the intention of Parliament as expressed in the relevant legislation, the courts must not go beyond the established principles of statutory interpretation. In the present circumstances, however, these principles should be applied with an especial concern to engage with the will of the community as that will is expressed by its elected representatives.

Consent is a state of mind. As something that is intangible, it cannot be proved or disproved by direct evidence. Inferences must be drawn. Section 37 seeks to promote the drawing of correct inferences: that is, conclusions drawn as a matter of logic and experience from established facts. If there is evidence that a complainant in a rape trial did not say or do anything to indicate free agreement, and if that evidence is accepted by a jury as having been established beyond reasonable doubt, then Parliament has decreed that the jury may infer that the relevant sexual act took place without the complainant's free agreement. Indeed, in the absence of anything which raises a reasonable doubt the other way, the jury normally should draw that inference.[47] One of the elements of rape will then be made out.
[47]This statement seems to me to accord with what was said by the Court of Appeal (Ormiston and Charles, JJ.A. and Vincent, A.J.A.) in R v Laz [1998] V.R. 453 at 460-461.

Where consent is an issue, and where the jury might on the evidence conclude that the complainant did not say or do anything to indicate free agreement to the sexual act alleged, then the judge must direct the jury in accordance with s.37(1)(a), and must relate that direction to the facts in issue (that is, those facts upon which an inference of consent or its absence can be drawn) so as to aid the jury's comprehension of the direction. Where, however, the evidence is otherwise – where, for example, the prosecution evidence is that the complainant expressly made known her opposition, while the accused asserts that she gave her free and express consent – then no inference can be drawn from a mere failure to say or do anything. This follows because neither party relies upon such a failure; and an inference based upon evidence that was never given cannot be drawn and cannot be relevant to the facts in issue. That being so, s.37(2) forbids a judge from giving a direction in the terms of s.37(1)(a). It would be ridiculous for a judge solemnly to inform a jury that the fact that the complainant did not say or do anything to indicate free agreement to sexual intercourse is normally enough to show an absence of free agreement if (on the one hand) the complainant has sworn that she forcibly resisted, and (on the other) the defence case is that she was enthusiastic in her participation.

It also seems to me that, in the circumstances postulated, Parliament did not intend that the jury be directed in accordance with s.37(1)(c). A jury will be confronted with the need to consider the reasonableness of an accused’s belief that a complainant was a consenting party when, and only when, the issue is surrounded by ambiguity. If a complainant forcibly and unequivocally made her dissent known, the accused’s belief that the act was consensual would clearly be unreasonable. If the complainant clearly and unequivocally gave her consent, then the accused’s belief that she in fact consented would be entirely reasonable. The complainant during any given trial might in the course of giving her evidence propound the first proposition; the accused might put forward the second. If so, the question of consent or its absence would be for the jury to determine. But the reasonableness of the accused’s belief in that consent would not trouble them either way. Accordingly, a s.37(1)(c) direction would be irrelevant to the facts in issue. Such a direction would therefore be prohibited by s.37(2).

Counsel for the applicant, in his written outline of submissions dated 5 September 2005, argued that the trial judge “clearly failed” to comply with s.37(1). That failure, he further submitted, “was material and constituted an irregularity even if the evidence lead at trial can be described as brief.” A recent decision of this Court, R v Yusuf,[48] was cited in support.
[48][2005] VSCA 69 (6 April 2005). Winneke, P., with whom Charles and Chernov, JJ.A. agreed, wrote the leading judgment.

The Court in Yusuf set aside the applicant’s conviction and directed a new trial. I respectfully agree with that outcome, and with much of the reasoning upon which it was based. I regret to say however that, in my opinion, the Court’s approach in that case to the construction of s.37 was flawed. If followed, it may (if I am right) lead to judges giving to juries, as a matter of course, directions which, far from reflecting that which Parliament had in mind, run directly counter to that intention; and (again, if I am right) to this Court finding fault in a charge, or a failure to charge - and as a consequence ordering a retrial, although the judge has directed, or declined to direct, exactly as Parliament would have wished.

It is necessary to recount in some detail the evidence put before the jury in Yusuf’s case. On 10 April 2001, the applicant and the complainant, strangers to each other, boarded a train bound for Geelong. They happened to sit together, and to engage in conversation. On arrival at Geelong, the applicant carried the complainant's bag for her; and it was agreed that they should join in a morning cup of coffee. Lunch followed at a restaurant, during which the meal was accompanied by a bottle of wine. The conversation apparently flowed. After lunch, the applicant asked the complainant if she would like to visit a "pub" with him. He "seemed like a nice person", so she agreed; and that is what they did. Another drink was consumed, after which, as the two were leaving, the applicant told the complainant that he needed to get his cigarettes from "his place", which was close by. It happened to be a hotel, on the first floor of which the applicant had a room. They both entered, although according to the complainant she only did so after initially waiting outside and then responding to the applicant's call to join him inside. According to her, he then locked the door, turned off the lights and grabbed her by the arm. It was the first indication of any inappropriate behaviour on his part. Her evidence was that she told him she just wanted to go home, that she had a boyfriend, and that she did not feel the same way about the applicant. He nevertheless pulled off her upper clothing, despite her attempts to prevent him. Things moved from there, through several stages, to two separate acts of intercourse. She said that, during this time, she was crying and asking – indeed begging – him to stop; but he was "just doing what he wanted to do". Afterwards, she dressed - but did not leave the room for another two hours. According to her, she was crying and asking the applicant to let her go.

His story, up to the time when the two left the "pub", corresponded with hers; thereafter it diverged markedly. It was presented to the jury as that which the applicant told to the police in a record of interview conducted after his arrest almost a year later: he had been abroad in the interval, and although of course present at his trial, did not give evidence. According to him, the two kissed and cuddled as they walked to the applicant's hotel. Of her own accord she then came to his room with him. The sexual intercourse which subsequently occurred was entirely consensual. She, for example, willingly allowed him to remove her clothes. She remained in the room afterwards not because he would not let her go but of her own free will.

During that latter period, according to the applicant’s record of interview, things changed. He had a large sum, in cash, in a bag in the room. She saw it. She asked him for $2,000. He became upset because he believed that she was, in effect, blackmailing him. That explained his hurried departure from the hotel the next morning, and subsequently from the jurisdiction – he feared that, because he had refused her request for payment, she would call the police. Which, on the day he left, she did. She then said nothing about the money. It was not until informed of the accused’s account to the police that she mentioned the subject. In the words of the President:

"The complainant … [conceded] that she had observed a large amount of money in the applicant's possession amounting, as she said, to a sum in excess of $2,000. It would appear from the evidence that no such concession had been made until such time as the applicant had been interviewed and given his version of events to the police."[49]

I am not sure why the President expressed himself in those terms. His judgment does not suggest any reason why, if her version of events was correct, she should think her observation of the money was relevant. There would be no "concession" unless the applicant's version was true. What the jury made of this issue is not known, although by their verdicts they demonstrated that they accepted so much of the complainant's evidence as enabled them to return a conviction on two counts of rape.

[49][2005] VSCA 69 at [15].

In his charge, the trial judge gave full and accurate directions on the issues of law. He did not, however, relate the law to the facts in issue. His failure to do so formed the only ground upon which the applicant relied on his application for leave to appeal. His counsel submitted that the judge had failed to discharge an obligation placed upon him by both the common law and by s.37. He drew particular comfort from the words in s.37(1)(c) by which, if relevant to the facts in issue, the judge is required (a) to direct the jury that, in considering the accused's belief that the complainant was consenting to the sexual act, the jury must take into account whether that belief was reasonable in all the relevant circumstances, and (b) to relate any direction given to those facts.

The learned President understood counsel for the applicant:

"… to be submitting that there were good reasons in rape cases why the legislature was imposing the obligation on the judge to relate the relevant law to the facts in issue, and that a failure to do so will constitute a miscarriage of justice. I think this assessment of the purpose of the section is accurate. The section is procedural in nature and the amending words which were added in 1997 were clearly inserted to ensure that only directions relevant to the facts in issue in a particular case were given; and that directions were not given which were superfluous to those facts. It is clear that the amending words add little to the obligations which are imposed by the common law upon a trial judge – namely to give to the jury directions as to such of the law as is necessary to enable them to determine the issues in the case before them and to relate that law to the facts in issue before the jury … For my part, I do not read the words of s.37(1) as imposing an obligation upon the trial judge of such a nature that a failure to comply with it will necessarily constitute such an irregularity as will render the proviso to s.568(1) of the Crimes Act inapplicable. Nevertheless, it does seem to me that the failure on the part of the trial judge in this case to comply with the provisions of s.37(1) in not relating the relevant law to the facts in issue, did amount to an irregularity which, in the particular circumstances of this trial, might well have affected the result. There was a sharp distinction between the events to which the complainant deposed in her evidence and those related by the applicant in his record of interview with the police. On the complainant's version of events, she entered the bedroom of the applicant unwillingly and, against her protestations, was forced on to the bed, was forcibly undressed, and intercourse thereafter occurred against her will. On the applicant's version of events, there was consensual sexual intercourse in which no force was applied to the complainant who, on the applicant's version, only became threatening after she had demanded from him a substantial sum of money which he refused to pay. If that had been the only evidence in the case, there would have been a stark difference between the versions of the complainant and the applicant clearly determinable by the jury without further instruction. However, there were other factors raised by the evidence which clearly bore upon the resolution of the conflict between the two principal protagonists in respect of the issues of consent, and the applicant's awareness."[50]

[50] [2005] VSCA 69 at [15].

It seems clear enough that, when the President spoke of a miscarriage of justice, he had in mind an injustice done to the applicant. Before turning to examine the basis for his Honour’s perception, an important point – to be developed later - should, I think, be made now. While it may be that the relevant failure (that is, to comply with s.37) may sometimes have the result that an accused is the one who suffers from the miscarriage, in Yusuf’s case it was the complainant upon whom the injustice rebounded – although, despite the trial judge’s failure to put her position as the statute required, the applicant was nevertheless convicted.

The learned President rightly perceived an injustice to the applicant in that case because the trial judge failed to include in his charge to the jury any reference to three:

“… issues which bore in a material way upon the ultimate issue as to whether the Crown had excluded beyond reasonable doubt the applicant’s contention that, at the relevant time, he was not aware that the complainant was not consenting or might not be consenting; and were also materially relevant to the reasonableness of the applicant’s asserted belief that the complainant was consenting to the sexual act. Accordingly, it would seem, at first blush, that when the judge was directing the jury that it was necessary for them to consider the reasonableness of the accused’s belief that the complainant was consenting, it was not only desirable, but indeed required by s.37, that he remind them of those passages in the evidence (including the record of interview) which bore upon the matters to which I have referred.”[51]

[51] Ibid at [16].

The three issues to which the President referred were as follows. First, the “apparently agreed fact that the [the complainant] remained in the applicant’s room for a period of some two hours after the intercourse notwithstanding that the door could have been opened by her to allow her earlier departure.” Secondly, the complainant’s “concession” that she had observed a large amount of money in the applicant’s possession. And thirdly, that the applicant in his record of interview said that he and the complainant had held and kissed each other on the way to his hotel room.

This, in the context of the case, was important evidence. To take the first matter first. It plainly constituted part of the whole context in which the alleged offending occurred. It is therefore highly relevant. The time spent in the room following the acts of sexual intercourse might or might not be the basis for an inference that that intercourse took place with the complainant’s consent. If she is to be believed, she begged to be allowed to leave. No inference favourable to the applicant could arise from that. If, on the other hand, he is to be believed, she stayed of her own accord; hardly the expected reaction of someone who had just been twice raped.

The common law would require the trial judge to direct the jury’s attention to these considerations. It was the President’s view that the judge was similarly bound by s.37. This was so, the President said, because the issues in question “bore in a material way upon the ultimate issue as to whether the Crown had excluded beyond reasonable doubt … that … the [applicant] was not aware that the complainant was not consenting or might not be consenting; and were also materially relevant to the reasonableness of the applicant’s asserted belief” on this point . Here, the President must have been referring to s.37(1)(c), since that is the only portion of s.37 that deals with the applicant’s belief about the complainant’s consent or lack of it. In my opinion, however, that provision has no part to play in determining what, in these circumstances, a trial judge should do. What happened after intercourse can have no bearing on the reasonableness of the applicant’s prior belief about the complainant’s consent to that intercourse; and, I repeat, s.37(1)(c) is concerned only with the applicant’s belief.

Of course, that topic is irrelevant unless and until the jury are satisfied beyond reasonable doubt that the complainant was not a consenting party. What happened after intercourse may throw light upon that question; but it has no connection with s.37(1)(c). To the extent that the other provisions of the section are concerned with consent as opposed to an accused’s belief in consent, that concern is limited to circumstances in which a person did not say or do anything to indicate free agreement; or in which a person did not protest, physically resist, or sustain physical injury; or consented to a sexual encounter other than that the subject of complaint. In each case, the section is directed to ensure that the jury receives appropriate directions about the inferences that may, in the circumstances postulated, be drawn. The circumstances postulated do include what happened in a hotel room during the two hours following intercourse; but only in relation to the presence or absence of consent, not to the applicant’s belief about its existence .

The second issue to which the President referred as requiring a “s.37” direction was that of the cash in the applicant’s hotel room. Again, this evidence plainly constituted part of the whole context in which the offending occurred. At the same time, however, although the evidence is relevant to a fact in issue – consent - it is plainly not covered by s.37(1)(a) at all, and if (which I doubt) it is covered by s.37(1)(b), it would require the judge to tell the jury that the complainant is not to be regarded as having agreed to sexual intercourse just because she remained in the room thereafter. Section 37(1)(c) is also inapplicable, because the evidence in question says nothing about the applicant’s belief, held before or during intercourse, that the complainant was or was not consenting .

Both the delay in finally leaving the hotel room, and the alleged attempt at blackmail, should have been considered by the jury before coming to their verdict. Both should have been the subject of an appropriate direction from the trial judge. Yet neither fell within the scope of the proper operation of s.37. It was not that section, but the common law, which required the direction to the jury. In discussing with the jury the relationship that each issue had to the question of consent, however, the trial judge was bound by s.37 to point out (assuming the President in his judgment fully and accurately set out all the evidence on the matter) that, even on the applicant’s version of events, the complainant’s alleged consent was expressed not by her active encouragement but by her passive failure to resist. Thus, on the evidence of the applicant as recounted by the President, “the applicant had not forced her in any way and she had willingly allowed him to remove her clothes”. If this was the totality of the relevant evidence, then in my opinion the judge had an obligation, imposed by Parliament so as to better ensure that justice was done to the complainant, to direct the jury in accordance with both s.37(1)(a) and s.37(1)(b). But since this was a direction designed to ensure that justice was done to the complainant, the failure to give it was hardly a point upon which the applicant should have been able to rely in order to obtain a retrial. And if a retrial were granted because of the inadequacies of the charge in relation to (either or both of) the delay in leaving the hotel room and/or the alleged blackmail, then this Court should have been astute to add that a proper charge should also have included a correct reference to the complainant’s passivity.

The third issue revolves around the applicant’s evidence that, as the two left the “pub” for the hotel, they were kissing and cuddling. The President categorised this evidence as bearing in a material way upon “the reasonableness of the applicant’s asserted belief that the complainant was consenting to the sexual act.” It was therefore “required by s.37 that [the trial judge] remind [the jury] of those passages in the evidence”.

I agree that the trial judge was required by s.37 to remind the jury of this evidence. He was likewise required to relate it to the facts in issue so as to aid the jury’s comprehension of the direction. It is, however, a fundamental mistake to put the evidence before the jury as no more than a possible explanation for the applicant’s (reasonable) conclusion that the complainant was a consenting party. On the contrary, s.37(1)(b)(iii) provides, in effect, that the complainant was not to be regarded as having freely agreed to sexual intercourse just because she freely agreed before such intercourse to kiss and cuddle the applicant. In other words, the direction required by s.37 was, in the circumstances postulated, required to ensure that justice was done to the complainant. Again, the fact that the judge failed to fulfil that requirement was not a matter about which the applicant ought to have been allowed to complain. Still less was it a basis for granting him a retrial.

I do not suggest that a willingness to engage in kissing and cuddling can never indicate free agreement to some other sexual act, including sexual intercourse. It is a matter for the jury, and everything depends on their judgment of the circumstances. They should nevertheless be reminded by the judge, so they have the authority of the judge’s office for a statement of what ought to be obvious, that while kissing and cuddling is often a prelude to sexual intercourse, it also often is not; that some may be perfectly happy to engage in the former, but have no wish at all to go any further; and that a participant has a perfect right, which the law requires be respected, to have her or his wishes honoured as soon as they are known. All of this is consistent with the requirement, imposed by s.37(1)(b)(iii), that in a case such as that with which we are presently concerned, the judge must direct the jury that the complainant is not to be regarded as having freely agreed to sexual intercourse just because she agreed to kiss the person who subsequently had such intercourse with her. What is therefore unacceptable is a direction to the jury such as that to and in respect of which, in Yusuf’s case, the learned President implicitly not merely gave his approval, but required the judge presiding over the retrial to include in his or her charge: that is, a direction which not only ignores the requirement imposed by s.37(1)(b)(iii) but is based on the premise that a male is entitled, unless the participating female gives some overt indication to the contrary, (a) to assume that the female is willing to move beyond kissing, and (b) to act upon that assumption.

It was, according to Winneke, P., clear that the 1997 amendments to s.37 add little to the obligations which are imposed by the common law upon a trial judge. In one sense he is, with respect, undoubtedly right. It remains obligatory for a trial judge to give to the jury directions about so much of the law as is necessary to enable them to determine the issues in the case before them, and to relate that law to the facts in issue. On the other hand, it is certain that, in enacting the amendments, Parliament did intend to do more than merely restate the common law. These were amendments designed to effect reform. They undoubtedly had their genesis in Parliament’s belief that in cases of sexual assault the common law gave inadequate attention to the interests of complainants. The amendments therefore require that, to the extent that consent - and the accused’s belief about it - are in issue, a trial judge must take a wider view of those issues, of the relationship which the evidence bears to them, and of the inferences which the evidence supports (or fails to support), than does the common law. In seeking to ensure that the jury receives proper directions about the inferences which they may, in certain circumstances, draw, and in seeking to ensure that they are not distracted by directions inappropriately given when those inferences are not open, s.37 in its present form gives (as it seems to me) a significantly wider dimension to the obligations of a trial judge than Winneke, P. allowed.

In these circumstances it is necessary to consider whether Yusuf’s case, insofar only as it adopted a particular approach to the construction of s.37 of the Crimes Act, should remain good law until a full bench of this Court, or Parliament, rules on the matter. The arguments for such an outcome are respectable ones. As Nettle, J.A. points out in his judgment, a draft of which I have had the advantage of reading, neither the applicant nor the Crown sought to criticise the President’s reasoning in Yusuf; and the issues considered by me in this judgment were therefore neither fully raised nor fully argued. I nevertheless respectfully disagree with the conclusion of Nettle, J.A. that it is not for a court constituted, as at present, by three members, to pass upon the rectitude of another decision of the court similarly constituted. This is in my opinion an exceptional case. It calls for an exceptional response.

I accept at once that, as the High Court said in Nguyen v Nguyen: [52]

“ … [w]here a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law”.

But, as their Honours went on to point out, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances, for all practical purposes, courts of last resort. In these circumstances it is inappropriate that they should regard themselves as strictly bound by their previous decisions. Indeed, rigid adherence to precedent is likely on occasions to perpetuate error without significantly increasing the advantage of certainty.

[52](1980) 169 C.L.R. 245 at 269 per Dawson, Toohey and McHugh, JJ.

I am compelled to the conclusion that the learned President’s exposition of the law in R v Yusuf was inadequate. I am also of the view that this Court can and should rectify those inadequacies without in any way undermining the proper role of precedent. My differences with Yusuf, if accepted as correct, would not result in any seismic shift in the law, or interfere with settled rights, or cause legitimate expectations to be thwarted. There would be no reduction in the right of an accused to have his or her case appropriately incorporated into the directions given by the trial judge to the jury, or in the obligation of the judge to give a fair and balanced charge. Rather, there would be imposed upon trial judges that which, as it seems to me, s.37 clearly requires: an obligation to formulate the charge with due regard to the proposition that (for example) persons are not to be regarded as having freely agreed to a sexual act just because on the occasion in question they agreed to engage in another sexual act, such as kissing and cuddling. This is no more than an obligation to frame a charge having regard to the added dimension to the concept of consent that s.37 contemplates. Parliament has, it seems to me, indicated - in terms that are as clear as can be – that to this point the concept adopted by the courts has been too narrow.

In an ideal world, the better course would be to leave the issues raised by me for determination by a court of five. I accept that which was said by Southwell J in Avco Financial Services v Abschinski:[53]

“My first impression is that a court of two or three judges should not depart from this practice [of convening a court of five judges] other than in quite exceptional circumstances, or where the delay involved in convening a court of five … would or might reasonably be expected to cause great hardship.”

[53][1994] 2 V.R. 659 at 668.

Delay is the problem; and it is real. It is 14 years since Parliament enacted the Crimes (Rape) Act 1991. The deficiencies which Parliament then discerned in the administration of justice in sexual assault cases remained uncorrected when the Crimes (Amendment) Act was enacted in 1997. Those deficiencies, or at least some of them, remain today – as (or so it seems to me) R v Yusuf demonstrates. This is a situation for which this Court is responsible, and from which it should draw no comfort. This is in part due, I suspect, to the fact that neither appellants nor the Crown have a particular interest in contending for the position which Parliament would, if I am right, have the courts take. The correct construction of s.37 may never been viewed by either the prosecution or the defence as the point upon which an appeal will turn. And a complainant, who may well take the opposite view, has only the (so far unheard) voice of Parliament to speak for her or him. This being so, it may be another 14 years before Yusuf comes to be reconsidered in a case in which the issues are squarely raised and fully argued before a court of five members. In the meantime, this Court will have failed to give to the lower courts of this State the leadership that is clearly its responsibility to provide.

A primary duty of this Court is to provide guidance to trial judges. This is at least as true in sexual assault trials as in any other. Such trials are common. They are also set apart from other trials because the interest which complainants have in them is often peculiarly intense and peculiarly personal. It is an interest which, as the courts have on several occasions been reminded by Parliament, must be appropriately recognised – but without any diminution in the rights of the accused.

The legislative provisions through which Parliament has spoken are directed not to the general community but to the courts. If, therefore, the courts ignore those provisions, or construe them with indifference to their true import, then the judges of this State have failed to administer justice according to law. If this Court perceives such a failure in lower courts, it is properly astute to correct it. It should be no less astute in its own case. Such correction may in my opinion be made consistently with the principles that govern the use of precedent. If that is right, it would be unfortunate were the Court to rely upon the rules of precedent while at the same time error, for which it is responsible, is perpetuated on a daily basis in the way trial judges discharge their function.

The notion that trials of those who are accused of sexual assaults must do justice, according to law, to both the accused and the complainant, applies in the present case as it did in Yusuf’s case. As a consequence, the learned trial judge in the present case was required, by a combination of the common law and the amendments to the principal Act effected by the Crimes (Rape) Act 1991 and the Crimes (Amendment) Act 1997, to give carefully balanced directions to the jury. What he in fact said to them on the question of consent, and the applicant’s belief about it, was the following:

"Firstly, consent is a state of mind, it means free agreement, it may be evinced by what the woman says or does or what she does not say or do. Evidence that the woman did not say or do anything to indicate consent, is normally enough to show that the act took place without that person's free agreement. It is her state of mind which must be proved by the Crown. The Crown must prove that at the time of the act of sexual penetration, the woman was not consenting to that act. She is not to be regarded as having consented just because she did not protest or physically resist or because she did not sustain physical injury; her action or inaction must be considered together with all the surrounding circumstances in order to answer the central question, has the prosecution proved lack of consent? In addition, the Crown must prove … that the accused intended to commit the crime of rape in the sense that at the time he committed the act of sexual penetration of the woman, he was either aware that the woman was not consenting or else realised that she might not be consenting and determined to have sexual penetration of her, whether she was consenting or not.
In determining whether the accused believed that the woman was consenting, you must take into account whether that belief was reasonable in all the circumstances. This is one of many guides which you may consider in determining the fundamental question: 'What was the state of mind of the accused 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 the penetration he knew that the other person was not consenting or being aware that this person might not be consenting, persisted in the penetration regardless of whether that person consented or not?' "

If the combined force of the common law and statute is to require carefully balanced directions to the jury in some of the cases in which consent is in issue, this Court should assist trial judges to find that balance. It is to this matter that I now turn.

Appropriate directions would take as their starting point a proposition that of course remains fundamental. Consent (or, rather, the lack of it) is an element of the crime of rape. Accordingly, the jury must be directed that they could not return a verdict of guilty unless they were satisfied beyond reasonable doubt that the complainant did not consent to the particular act of sexual intercourse upon which the charge under consideration was based. If the jury were not so satisfied, then other issues such as the applicant’s belief in the complainant’s attitude would become irrelevant. The element of consent being logically anterior to the issue of the applicant’s belief in consent, it was to consent that the jury should first turn its attention.

It was also the trial judge’s duty to tell the jury that consent means free agreement; and, in deciding whether they were satisfied to the requisite standard that the complainant had not given her free agreement to the particular act of sexual intercourse with which they were then concerned, the jury must bear in mind that a person does not freely agree to such an act if she is so affected by alcohol and marijuana as to be incapable of freely agreeing. In evaluating the combined effect of the two drugs, the jury should, moreover, have been told that they were entitled to consider the total context. A 15 year old and physically very small female (“tiny” was the description with which the applicant agreed)[54], under the influence of those drugs and in the presence of a fully grown and physically imposing 25 year old male, might (it was a matter for the jury) have her capacity for free agreement reduced by those factors.
[54]Answer 142.

Other evidence was relevant to the question of consent. The jury should have been directed that (subject to what is said at paragraph [110] below) they were required to have regard to it all - although it was of course for them to decide how much of it, if any, they accepted. But, because they were, or at least may have been, required to have regard to it all, the trial judge was in turn required to give them a fair summary of the salient parts of it. The starting point was, on the one hand, the evidence given by the complainant in the trial and, on the other, the evidence constituted by the applicant’s answers to questions put to him by the police during the course of his police interview.

The complainant repeatedly - and it is, I think, fair to say, forcefully - asserted that she had clearly evinced her lack of consent to intercourse. She also gave evidence of her cry for help when seeing K.R. in the car park after the relevant incidents, and of her complaint, made to K.R. immediately upon her return to the Dandenong premises, that she had been raped. In addition, she claimed to have been injured during the episode, to the extent that an earring and a nose ring had been torn off, with bloody consequences. The jury should have been reminded, albeit briefly, of these matters.

On the other hand, none of this called for a direction pursuant to s.37. This is so because it does not give rise to any of the factual circumstances with which that section is concerned. The defence, however, brings the section into play. On the applicant’s account, he “wanted to kiss and stuff”, and he suggested that they sit down; she objected that there was “too much light”. They moved “over there”. After that, they “just started kissing [and] [f]rom then on one thing led to another and that was it.”[55] To the extent that the complainant evinced her consent to an act that otherwise seems – and this is the applicant’s version - to be initiated by him, she did so by actively engaging in mutual kissing, by perhaps (his account is so vague as to warrant the qualification) suggesting that they lie down, and by assisting him to re-arrange her clothes.
[55]Answer 227.

All this warranted a reference, in any directions given to the jury, to the principle - dictated by the law - that if they found that the complainant did not say or do anything to indicate free agreement, then they would be entitled to infer that the act took place without that free agreement. Moreover, in the absence of indicia to the contrary, that inference would be the inference that a jury would normally draw; but, when considering whether such indicia existed, they should take into account the applicant’s assertion to the police that the complainant went willingly with him to a Coles store after their return to Dandenong.

Of course, if the jury had no reasonable doubt about the truthfulness of the complainant’s evidence on the question of consent, then it would be unnecessary to consider the implications of her failing to say or do anything to indicate free agreement. Equally, the jury in that circumstance would not need to ask whether, because she did not protest or physically resist or sustain physical injury, she was to be regarded as having given her consent. These questions would not need to be considered because - on the hypothesis that the complainant’s evidence had convinced the jury to the point that they had no reasonable doubt that it was true - she did protest, she did resist, and she did sustain physical injury.

As in Yusuf’s case, so in this: the suggestion that kissing was a prelude to what happened next raises an important issue in relation to s.37(1)(b)(iii). It goes both to the fact of consent and to the applicant’s belief (or lack of belief) that the complainant was freely agreeing to sexual intercourse. The complainant maintained that “he tried kissing me and I pushed him away, and I told him that he could have his necklace back if all he wants is a fuck.” [56] She would have to concede that, on that evidence, she anticipated that the kissing episode was, in his mind, but a prelude to sexual intercourse. And of course kissing often is part of the foreplay that precedes such intercourse. That is how the applicant appears to have seen it on this occasion. But even were this so, that in itself says nothing about either her consent or his belief that she was consenting.
[56]T.27.

It is for the jury to decide whether the complainant joined in at this point and, if she did, whether by her participation she evidenced her consent to what followed. But s.37(1)(b)(iii) required the judge to direct the jury that the complainant was not to be regarded as having freely agreed to sexual intercourse just because (if this is what the jury find) she freely agreed to being kissed by the applicant, and kissed him in return. Everything depends on their judgment of the circumstances. I repeat that which I said at paragraph [89] above: it is unacceptable that the jury be given a direction based on the premise that a male is entitled (a) to assume that the participating female is willing to move beyond kissing, and (b) to act upon that assumption, unless the female gives some overt indication to the contrary.

In his charge to the jury in this case, his Honour avoided this trap by saying nothing about the subject at all. In other words, he failed to give the jury either the right or the wrong direction about the significance of the kissing episode as recounted by the applicant in his record of interview. But that in itself was a mistake, because s.37 required that the right direction be given.

In the circumstances of this case, the absence of free agreement would not be sufficiently proved if the jury, after considering the evidence of the complainant, had a reasonable doubt about whether she freely agreed to have sexual intercourse with the applicant. If her evidence did not convince on this point, no other evidence could fill the gap. But if the jury, having carefully considered what she had to say, were not prepared to acquit at that stage, they would then be obliged to consider all the evidence. The question then before them would be whether a reasonable doubt had been created by one or a combination of (a) the prior inconsistent statements; (b) the evidence about the trip to Coles; (c) the discrepancies between K.R.’s and the complainant’s version of what happened in the car park and on their return to Dandenong; and, generally, (d) the applicant’s story as told to the police. If that account caused the jury to have a reasonable doubt about the prosecution’s contention that the complainant did not freely agree to sexual intercourse with the applicant, then they must acquit. But they should not have that doubt just because they might think that the complainant freely allowed the applicant to kiss her, or joined the applicant as each kissed the other, or did not resist when he removed or re-arranged her clothes.

The jury were directed by his Honour that, even if they were satisfied beyond reasonable doubt that the complainant did not consent, the applicant was not guilty unless they also found that he knew that she did not consent or might not be consenting. The judge should also have directed them that, if they had no reasonable doubt about her evidence on the point, then likewise there could be no doubt that the applicant was aware of her lack of free agreement. But they might not be so satisfied. The jury should have been (and were) directed that, when considering whether the prosecution had established beyond reasonable doubt that the applicant did not believe that the complainant freely agreed to sexual intercourse with him, they were to take into account whether such belief was, in all the circumstances, reasonable.

I now turn to the (proposed) ground 5. The applicant submits that the trial judge failed to give any direction to the jury about the effect that the complainant’s consumption of alcohol and marijuana may have had on the reliability of her evidence. And it is true that he did not. Neither side called any experts to speak on the subject, so the jury if they considered the matter at all must of necessity have done so by drawing on whatever experience they or individual jurors may have had. The judge, of course, could not by any direction of his fill the gap left by the absence of expert evidence. The best he could have done was to remind the jury of the evidence about her consumption, and of her own assessment of its effect on her, and warn them that, as that is all they have, it would be unsafe to convict the applicant on the complainant’s evidence unless having very carefully considered that evidence they were satisfied that it was accurate.

In my opinion, a direction of that kind should have been given. The alternative, which his Honour adopted, exposed the jury to the danger of speculation. The direction should nevertheless have included more than its warning about mere speculation concerning the complainant’s ability to recall. It should also have included a reminder that the complainant’s ingestion of drugs may have brought her within that class of participants in sexual adventures who, because they are at the relevant time deeply under the influence of drugs, are incapable of freely agreeing to their participation in those adventures. And although there is no necessary and direct correlation between the two, the more the jury are tempted to find that the complainant’s memory was unreliable, the more they would doubtless also incline to the conclusion that she did not freely consent. If she did not freely consent, then the jury must ask whether the applicant believed that she did. In answering that question, they would be bound to examine the evidence of her conduct in order to ascertain whether her behaviour ought to have alerted the applicant to the possibility that she might not be consenting. Of course, the judge would be required to remind them that the applicant does not bear any onus of proof; and so while he may create a doubt in the jury’s mind about the complainant’s capacity accurately to recall relevant events, he does not have to prove her incapacity. The Crown, on the other hand, must prove beyond reasonable doubt not only that the complainant did not consent, but that the applicant knew it.

For these reasons it seems to me that the applicant is entitled to a retrial; but one in which the jury are charged in accordance with all the relevant law. They must not be charged merely on the law upon which the applicant relied to sustain the appeal.

I would grant the application to add proposed grounds 4 and 5, and the application for leave to appeal. I would treat the appeal as having been heard instanter and allowed. I would also, therefore, quash the applicant’s conviction and order a retrial.

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[2005] VSCA 282

2 December 2005