R v T C

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 153 of 2007

THE QUEEN
	v
TC

---

JUDGES:	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2008
DATE OF JUDGMENT:	23 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 282

---

CRIMINAL LAW – Conviction – Sexual penetration of child under the age of 16 – Intent – Voluntariness – Intoxication – Whether charge foreclosed against applicant issue of effect of intoxication upon proof of intent – Failure of judge to relate facts to the law – Proviso to s 568(1) Crimes Act 1958 inapplicable – Appeal allowed - Order for retrial.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D Grace QC	David Laschko

ASHLEY JA:

TC, the applicant, was presented in the County Court on a single count that on 1 January 2006 he took part in an act of sexual penetration with a child under the age of 16.[1] He was found guilty after trial in February and March 2007. On 4 May 2007 he was convicted and sentenced to three years and six months’ imprisonment with a non-parole period of two years and six months’ imprisonment. The judge made certain consequential orders, and a declaration in respect of pre-sentence detention.
[1]Contrary to s 45(2) of the Crimes Act 1958. The maximum penalty for the offence is 25 years’ imprisonment.

Now the applicant seeks leave to appeal on the following grounds:[2]
[2]Particular (e) of Ground 1 was added, by leave, on the hearing of the appeal.

1.The Learned Trial Judge erred in his directions to the jury as to intoxication, thereby giving rise to a substantial miscarriage of justice.
Particulars
(a)       The Learned Trial Judge failed sufficiently to identify the ways in which intoxication could be relevant in the Applicant’s case, namely to both the voluntariness of any conduct found by the jury to be proven beyond reasonable doubt, as well as to the formation of intent.
(b)       The Learned Trial Judge failed sufficiently or at all to convey to the jury that if the evidence was capable of raising a doubt as to voluntariness or the existence of actual intent to commit the crime charged, it was for the Crown to remove that doubt and satisfy the jury beyond reasonable doubt that the Applicant voluntarily did the act with which he was charged, and did so with the intent appropriate to the crime charged.
(c)       The Learned Trial Judge failed sufficiently or at all to draw the jury’s attention to the evidence and factual circumstances which bore upon the extent of the Applicant’s intoxication, instead only mentioning one (disputed) fact, namely an individual driving home from a party as suggesting an ‘obviously intentional thing’, when that act itself may not be accompanied with the necessary intent.
(d)      The only factor therefore referred to by the Learned Trial Judge was one suggesting the absence of intoxication, when that issue was a live issue for the jury’s determination.
(e)       By using the example of a person driving a motor vehicle in relation to the issue of intent, the Learned Trial Judge failed, sufficiently or at all, to convey to the jury what had to be considered by them in determining the effect of intoxication, in the context of the facts of the case, on the requisite intent to be possessed by the Applicant.
2.That new or fresh evidence has become available, which should be admitted by the Court, which is credible and if believed, might reasonably have led the jury to return a different verdict, when considered with all of the other evidence at trial.
Particulars
(a)       Since the date of the Applicant’s conviction, a witness as to the arrival home of the Applicant’s car, Vickie Matthes is able and willing to testify that on the morning following the incident, she saw the car being driven into the Applicant’s house. A person, not the Applicant, had been driving the car.
(b)       This evidence is significant because if the jury had concluded that the Applicant had driven his car home from the scene of the crime, they may have been more likely to reject the defence of intoxication, which was a significant issue at the Applicant’s trial.
(c)       This evidence is credible and raises a significant possibility that, had the evidence been before the jury, the jury may not have returned the guilty verdict.

In my opinion, for the reasons which follow, the application should be granted, the appeal allowed, and it should be directed that a new trial be had.

Relationships

The applicant, a man born 9 November 1972, was aged 33 years at the time of the alleged offending, which occurred on the morning of 1 January 2006. He was a friend of W, who then lived at a Frankston address with his partner, CH and two children. The children were a girl, A, aged nine at the time of the alleged incident; and a boy aged one.

CH was the sister of DH. The latter was the father of the complainant, N, a boy then aged five. DH lived with his partner, B, at premises (‘Hillcrest Road’ or ‘the H home’) which were ‘about 20 houses away’ from the W home. Also living with them were two other children, M and S.

Circumstances
Intoxication

On the evening of 31 December 2005 there was a New Year’s Eve barbecue at the H home. Present were W, CH, their children, DH, B, the complainant and their other children, and others. Alcohol and ‘nibbles’ were available; and marijuana.

The applicant had spent time with W during the day, playing a computer game. Then he had returned to his home, which W estimated was three to four kilometres distant. Later on, the applicant arrived at the barbecue. His time of arrival was estimated by witnesses as having been 10.00pm or later. According to W, at the time when the applicant arrived, he looked as if he had had a fair bit to drink. According to CH, he was then ‘really drunk’.

The applicant stayed at the H home until about 1.00am. He continued to drink, and apparently used marijuana. He later said that he had used marijuana during the day. His evidence to that effect was in substance unchallenged.

The applicant did not return to his home from Hillcrest Road. Whilst at the barbecue he had either given the keys to his car to CH, or she had taken them. The reason for the keys no longer being in his possession, however it be that they came into the possession of CH, is very evidently that he was considered unfit to drive.

In the event, the applicant walked to the W home in company with W. The latter gave evidence that he permitted the applicant to come back to his home so that the latter would not drink and drive. In cross-examination, he agreed that he had described the applicant as being ‘legless’ by the end of the evening.

Children, including W’s daughter A and the complainant N, had been driven to the W home. A and N were then bedded down on a fold-out couch in the loungeroom. A mattress was set up for the applicant in the same room, about a metre distant from the couch.

It seems that W and the applicant did not go to bed immediately on their return to the W home. Rather, the two men, CH and another woman sat around a table, drinking and socialising. There was also evidence that marijuana was or may have been used in that period – inter alia, by the applicant.

The applicant went to bed, it was said, at about 2.00am. But he did not sleep, at least in the ordinary way. W gave evidence, unsurprisingly it did not fit together perfectly, that –

· He got out of bed several times because the applicant was up and opening doors.

· He heard lots of bangs and crashes.

· At one stage he observed the applicant on the kitchen floor, covered in clothes from the laundry basket. The laundry basket was more or less on top of him. The applicant had vomited on himself. It appeared, he agreed, that the applicant appeared to be ‘sort of trying to look for some other clothes to put on or something’.

· The applicant was put into some other clothes and told to go back to bed – which he did, but only for a time.

· On another occasion, the applicant was in the bathroom.

· He observed vomit on the applicant’s mattress.

· The applicant came in for more clothes a couple of times, because he had been sick.

· He got up on one occasion to find that the applicant had snapped off the pole of the clothes hoist, and that ‘the front yard had a few tree branches missing’.

· He observed that ‘the house in general looked like somebody had ransacked it’.

· He had locked the door to his bedroom because the applicant kept walking in asking to have a drink with him.

· After the last disruption, he offered the applicant his car keys and told him to drive himself home. That is when he locked the door to his bedroom. It was then about daybreak.

In all, the evidence painted a convincing picture that in the early hours of 1 January 2006 the applicant was very much affected by alcohol (and perhaps marijuana).

The alleged offence

I come to the circumstances of the offence of which the applicant was found guilty.

The complainant gave evidence-in-chief by way of a VATE interview conducted from about midday on 1 January 2006. Significant questions and answers were these:

Q:       Why are you here?
A        ‘Cos [T] sucked my willy.
Q:       [T] sucked your willy. Tell me what happened with that.
A:       [A] said, ‘Stop it,’ and he didn’t stop.
Q:       So, [A] ---?
A:       Yep.
Q:       She told him to stop, did she?
A:       Yep, and he didn’t, and he kept pulling it.
…
Q:Okay. Can you sit on that chair for me while we talk? Good boy. Okay. Can you tell me, last night – where did you sleep last night?

A: In the lounge room, on the bed.
Q:Okay. And whose house were you at? Your house or someone else’s house?
A:Someone else’s house?
Q:Whose house was it?
A:[CH’s[ house.
Q:At [CH’s] house?
…
Q:Who did you sleep on the couch with? By yourself, or with someone else?
A:[A].
Q:So, with [A]. On the same couch, or a different couch?
A:We had 3 people in the lounge room, and that was [T], [A], and me.
Q:And where did [T] sleep?
A:On the floor in the little bed.

…
Q: Alright. And tell me what happened last night?
A: He sucked my willy.
Q:Sorry, can you take your fingers out of your mouth for me, and tell me?

A:       He sucked on my willy.
Q:       He sucked your willy, did he?
A:       And nobody’s – and you’re not allowed to touch anybody’s bodies.
Q:       He’s not allowed to touch anybody’s body.
A:       No.
Q:That’s right. And can you tell me was it day time or was it night time when he did this?

A:       Night time.
Q:       And did you say anything to him?
A:       I mean it was – during – it was morning … I mean - - -
Q:       It was morning, was it?
A:       Yeah, I mean.
Q:       Was it today’s morning, or another time?
A:       Tod-, it was the t-, yep, day, today.
Q:       Today’s morning.
A:       And [W] kicked him out ‘cos he keeps sucking my willy.
Q:Okay. And did you say anything to him while he was sucking your willy?

A:       I said, ‘Stop.’
Q:       And did he stop when you told him?
A:       Nup.
Q:       What did he do?
A:       Keep sucking it.
Q:       Can you tell me, what were you wearing?
A:       Boxers up there.
Q:       And do you remember what was on your boxers?
A:       Mm’m. Thomas the Tank.
Q:       Thomas the Tank?
A:       (NODS HEAD)
Q:       Okay. And did you have anything else other than your boxers on?
A:       Nup, and … - - -
Q:Okay. And when [T] was sucking your willy, were you on the couch, or were you on his little bed?
A:I was on the couch.
Q:Okay. And where was [A]?
A:On the couch, ‘cos there was a bed under the pillows – un-, under the pillows there.
Q:Okay. And where was [T] when he was sucking your willy?
A:Standing up on his knees.
Q:Okay. Can you show me how he was on his knees?
A:(KNEELS DOWN)
Q:Okay. And where were you?
A:On top of the bed laying down. (DEMONSTRATES LYING ON BACK)
Q:Okay. And did – what did he do to your boxers, so that he could suck your willy?
A:He pulled ‘em down, and I’m pulling them back up.
…
Q:And you said before that [A] told him to stop. What happened when [A] told him to stop?
A:Keeps doing it.
Q:And then what happened after that?
A:Then he said, ‘Be quiet,’ to [A], I think.
…
Q:Okay. [A] told you. When he sucked on your willy, what did he use to suck your willy?
A:His mouth.
Q:His mouth? And he – did he do it for a long time or a short time?
A:A short time.
Q:Yeah? And how did it make you feel?
A:Bad.
Q:Bad? Why did it make you feel bad?
A:‘Cos it was annoying.

‘A’ was also interviewed on 1 January 2006, the interview commencing just before 1.00pm. Significant questions and answers were as follows:

Q:Alright. Okay. [A], can you actually tell me why you’ve come here today to the police station?

A: Because [T] sucked my cousin’s willy.
Q:Alright. Tell me everything about [T] sucking your cousin’s willy, that you can remember.

A: I just woke up.
. . .
Q: Alright. And tell me what happened.
A:Well, I fell asleep, and then when I woke up, [W[ – [N] was crying, and Tim was sucking his willy.
Q:And what happened then?
A:Then I threatened to kick him, and he said I’m weak, and then - - -
Q:Sorry? You threatened to kick - - - ?
A:(NODS HEAD) Him, if he didn’t stop doing it, and he said, ‘You’re weak’, and then I said, ‘I’ll call 000,’ and then he stopped.
Q:Mm’m. What happened then?
A:He laid down and went to sleep, and then I went to my mum’s room so, . . . . . . . . . . and she took us in to her room.
- - -
Q:Right. What position was [N] in when [T] was - - - ?
A:Just lying.
Q:Sucking - - - ?
A:Down straight. (INDICATES WITH HAND)

Q:       Okay. And was he wearing any clothes, [N]?
A:       Boxers.
Q:       And where were the boxers?
A:       Around his legs.
Q:Alright. Can you show me or tell me whereabouts on his legs they were? Were they up high, or were they down low?
A:Down low.
- - -
Q:Mm’m. And what was [T] using to suck on [N’s] willy?
A:His mouth.
Q:His mouth? And what was he doing with his mouth?
A:Just putting it over it.

The time at which the alleged incident occurred was not made entirely clear. But the burden of the evidence was that it was at or a little after daybreak. Sunrise was admitted to have been at 6.00am that day. It does not gainsay the reliability of that evidence that the complainant’s mother seems not to have been informed about what had allegedly occurred until about 7.30am.

The girl, A, told W and CH that an incident had occurred involving the applicant and the complainant. CH seems to have heard more clearly what A said. It included A’s assertion that the applicant had ‘sucked [N’s] willy’, and her saying that she wanted the applicant out of the house. Certainly CH told W, after her conversation with A, that they wanted the applicant out of the house.

W went to the lounge room. The applicant appeared to be asleep, but he woke quickly. W told him to ‘get out now’. The applicant asked why. They went out of the house. According to W, the applicant ‘said something about he was dreaming and then poked his head back into the house, seen no one was there and said something about “Oh no, it must have been a dream”.’[3] Then the applicant fell into bushes. W picked him up, and ‘pretty much staggered him’ to his car: He then drove the applicant to Hillcrest Road, where the applicant’s car had been left.
[3]W gave evidence concerning this incident on three occasions. The language which he attributed to the applicant, and the circumstances in which the applicant said what W attributed to him, each varied a deal.

That was the state of W’s evidence before he was recalled later in the trial. Of his being recalled, more anon.

Assuming the truth of W’s evidence that he drove the A to Hillcrest Road, it is not in doubt that the applicant got from there to his home. That is where he was when the police arrived just before 1.00pm on 1 January.

So also, there is no doubt that the applicant’s car was then at his home.

The applicant’s evidence

The applicant gave evidence that he had been drinking and had used marijuana before he arrived at the barbecue. He disputed that he was drunk when he arrived, but he admitted getting into that state before long. He had no recollection, he swore, of events between him seeing fireworks and being kissed by several woman - presumably because it was midnight – and being woken by the police knocking on the door of his home. On that account there was a gap in his memory of ten or more hours. He gave evidence also that in the past there had been occasions when after drinking he had been told things (presumably, about his behaviour) the next day and did not remember them. That, he would consider, was a ‘blackout’. He had no recollection, he said, of his behaviour as described by W in the period after he went to bed; and no recollection of walking back into the house, looking at the couch, and saying‘ Oh no, it’s just a dream’.[4] Concerning this last matter, he said that W’s evidence made no geographical sense – because the lounge room could not be seen from the front door; and because, in substance, W’s first account had not involved the assertion that he had poked his head into the house.
[4]This being a somewhat inaccurate paraphrase of one version of what the applicant had done and said.

W recalled for further cross-examination

In light of particular issues raised by the first ground of appeal, I should refer to certain evidence given by W, who was recalled for further cross-examination.

When he first gave evidence, W agreed in cross-examination that he had said to the applicant, in effect, ‘Look, there’s the keys, drive yourself home’. This had been at about daybreak on 1 January. W also gave evidence that, after the reported incident, he drove the applicant to Hillcrest Road, where the latter’s car had been left. He gave no evidence of seeing the applicant enter his car or drive off.

W was recalled so that matters could be ‘put’ to him. The first puttage was that the applicant’s car keys were still at his home after he had dropped the applicant off at Hillcrest Road. The witness’s first reply was ‘I don’t think so’. He then assented to the proposition that he had not stayed to watch the applicant drive away. Then there were these questions and answers:

COUNSEL:     When you made your statement about the event – the statement that you refreshed your memory from, for giving evidence in court, it’s true that you made no mention at all about [T’s] car keys, isn’t it
WITNESS:      I offered to give him back his car keys at one stage but that was earlier in the night.
COUNSEL:     Is it possible that in fact he didn’t have his car keys with him when you dropped him off?
WITNESS:      Well, they would still be in my house then, wouldn’t they?
COUNSEL:     Well, that’s what I’m asking you. Were they still at your house, do you know?
WITNESS:      No. Definitely not.
HIS HONOUR:        Probably not, or - - -?
WITNESS:      Definitely not. They’re not in my house.
COUNSEL/HIS HONOUR: Definitely not?
WITNESS:      - - - and probably I seen him jump into his car at the time when I drove past. I had to go past the car again.

COUNSEL:     Well you’ve not referred to that at all in your statement, have you?
WITNESS:      No.
COUNSEL:     You haven’t referred to seeing him in or near his car at all in your statement?
WITNESS:      I dropped him off within a metre of his car but, not, I didn’t put it in the statement.

and
COUNSEL:     In that passage of evidence that I read, or passage from your statement, you indicated that [T] went home in your shorts. Is that right?
WITNESS:      Yes
COUNSEL:     He recalls his shorts being in a plastic bag on the front passenger seat of his car when he went to his car after getting back to the police station. Do you know anything about that at all?
WITNESS:      No.
COUNSEL:     He recalls that he’d left his car parked on the front lawn at [an address in Hillcrest Road]?
WITNESS:      Yes.
COUNSEL:     You dispute in any way being involved in dropping [T] home or arranging for him to be dropped home. Is that right?
WITNESS:      Disputed? No. I dropped him off – had his car. I didn’t drop it home, no.
COUNSEL:     You say you don’t know anything about arranging anything about getting his car dropped home or anyone taking his car back to his place?
WITNESS:      No.

The intended thrust of this puttage was that the applicant could not have driven his car home – because he did not have the keys; and that someone else had evidently driven it there - because it did get to his home, and because when it arrived there his (soiled) shorts were in a plastic bag on the front passenger’s side seat. The point of the questions appears to have been to shut off the possibility of the jury reasoning, if intent became a critical consideration, that if the applicant drove his car home not very long after his alleged offending, then he would surely have been capable of forming the relevant intent at time of offending.

W’s replies, beginning with a non-responsive answer which led on to attempts to defuse it, did not show that the applicant had in fact driven home from Hillcrest Road. Further, counsel for the Crown, before us, conceded that the jury could not have permissibly drawn such an inference as a step to a conclusion that the Crown had established relevant intent.

Issues at trial

The main dispute at trial was whether the Crown had proved the fact of the offence. The evidence of the complainant and of A was to that effect. Each of them, most particularly A, was cross-examined to suggest that their accounts were unreliable, and that there was a motive (or rather, in the case of the complainant, an explanation) for the unreliable accounts being given. Some of the applicant’s evidence was directed to the latter point

It was next the fact that the applicant’s DNA was found on the complainant’s penis. The circumstances in which it had got there, and the significance of the concentration in which it was found, were areas of real controversy.

The applicant, by reason of his professed lack of recollection, could not give, and did not give, any evidence pertaining to the alleged offence. Certainly, from the outset, he strongly protested his innocence – essentially on the footing that the conduct was not such as he would have engaged in.

There was another issue at trial. It had to do with the impact of the applicant’s intoxication upon proof of necessary intent – that is, intent to do the prohibited act. In discussion with counsel, before final addresses, the learned trial judge described it as a matter which he thought had ‘steadily escalated in its prominence in the trial’. It was readily agreed by both counsel that ‘the full intoxication direction’ had to be given, senior counsel for the applicant saying

Obviously we have pitched our case on a didn’t happen basis, but we also say if there is some suggestion that he’s done it, while not aware, then the Crown hasn’t proven their case’.

The Charge

The judge stated a number of times in his charge that the burden of proof, to the criminal standard, always rested upon the Crown. He gave such a direction with respect to the finding of facts necessary to the drawing of an inference as to the existence of any element of the offence. His directions with respect to intoxication were not given, then, in a vacuum.

Concerning intent, the judge focused upon the possible significance intoxication. He gave this direction:

… there is also the element that the act of the accused was intended. I will give you the following direction with regard to that, because in this case, of course, there has been evidence with respect to the accused on that day and that evening, I think during the day he had smoked marijuana on a number of occasions and possibly later that evening and also had had something to drink by way of a number of beers. Whether [sic] considering whether you should infer that the accused had the necessary guilty intention, it is open to you to look at that question in the light of the degree of intoxication, that is obviously from either drugs or beer, which you find that the accused was labouring under, on this occasion. But the mere fact that a person is intoxicated, does not mean that he or she did not form the necessary intent to commit a crime. A person’s state of intoxication can vary greatly in degree. He or she may be intoxicated to the degree that they do act voluntarily and intentionally in a manner, which in a sober state, they would not be likely to act. Intoxication to this extent, although perhaps explanatory of the accused’s conduct, has not destroyed his will nor precluded the formation of any relevant intent. Indeed, intoxication to this degree, may well explain how the accused came to commit the crime. Intoxication to the state of degree might have rendered the accused less concerned about the gravity of what he was doing, or of its possible consequences, but it will not ordinarily prevent the accused from performing an intentional act, nor intending the consequences of those acts and accordingly does not affect the accused’s criminal liability for those acts.
But the state of intoxication may reach a point of such intensity that the accused’s mind will become separated from the movements of his body, so that such movements are truly involuntary and unintentional. You can imagine the case of an individual whose arms are flailing about in the course of a frenzy induced by gross intoxication. If the flailing arm hits a passer-by and causes injury, it may be said that the injury was caused by an involuntary act. There would accordingly be no criminal liability in respect of the injury, because what had been done had been done involuntarily and without any intent to do it.
Finally in relation to this question of intoxication, I should point out that mere lack of recollection of an event, is quite a different thing from having no intention to carry out the act in question. You will all readily appreciate that a person may lose their recollection of an event, for one reason or another, but at the time the conduct in question was carried out, the accused did it intentionally. I suppose it is a common enough experience for an individual to have too much to drink and in an intoxicated state, to do all sorts of obviously intentional things, such as, for example, driving home from a party. The next day there may be no recollection of doing so, but it would not follow that because he does not recall the event, that the action was not intentional. Indeed, I think that is the evidence in this case. Accordingly, you have got to look at all the facts here and make your findings as to the circumstances and ask yourselves whether you are satisfied that in doing what the accused did on this occasion, he was acting consciously and voluntarily and that the accused intended to bring about the consequence of his conduct, in that sense, the sucking of the penis. (my emphasis)

That direction, except for the reference to an assault done in the course of a frenzy induced by gross intoxication, and to the example of an intoxicated person doing ‘obviously intentional things, such as, for example, driving home from a party’, was extremely general. It was not connected with the circumstances of the instant case.

At the first available opportunity, counsel for the applicant took exception to the intoxication direction. She made these submissions:

Firstly, in dealing with the elements of the offence Your Honour simply said what are the three elements, the first one being the accused took part in sexual penetration which is disputed, the second one being a person under 16 which is not disputed, the third element is intent and you said, the issue is whether the act of the accused was intended. Then Your Honour said it’s open to consider the question of the intoxication. The mere fact that a person is intoxicated doesn’t mean he didn’t form the necessary intent.
Your Honour, gave a number of directions about intoxication and a couple of examples. In my submission the directions that Your Honour gave about intoxication and about intent were inadequate. Firstly because your Honour did not clearly tell them that in – I note that essentially in terms of intent the element of intent can be described as an element that relates to the person’s state of mind. The prosecution must prove that the accused intended to take part in the act of sexual penetration.
Your Honour would need to tell them in my submission that that would need to a conscious and deliberate act. In this case it is significant that the prosecution have made reference to suggestions that the accused spoke of dreaming or appeared to be speaking of dreaming and to his sleeping state when found by [W]. Implicit in that is the suggestion that he’s done this in a state where he’s perhaps asleep or not sufficiently aware of his actions.
Now that is quite significant in my submission that the prosecution have focused on that aspect of the evidence and in those circumstances it is important that your Honour in giving the intoxication direction give a direction to the effect that if the evidence is capable of raising a doubt as to voluntariness or the existence of actual intent to commit the crime, it is for the Crown to remove doubt and satisfy you beyond reasonable doubt that the accused voluntarily did the act with which he is charged, or did so with the action intent appropriate to the crime charged.
I note that in the criminal trial directions manual[5] there is a section on intoxication and I’ve actually taken that particular statement from the bullet points in that section. But specifically Your Honour in my submission should refer to the fact that any intention is sometimes described as mens rea which means guilty mind. And that every guilty act must be accompanied by a guilty mind, being an intention to commit the act and an awareness of doing so. To commit an act while asleep or dreaming of in a state of non awareness, if there is a doubt in their mind as to those matters they would have to acquit. That is the direction I seek about intoxication, …
[5]We were told that this was apparently a reference to Tilmouth & Glissan’s Australian Criminal Trial Directions – formerly titled ‘The Right Direction’.

and
COUNSEL:     In terms of Your Honour’s summary of [W’s] evidence I’m concerned that Your Honour said this about – and I’m not sure that I’ve got a correct note of what Your Honour said, but Your Honour was giving examples about intoxication and Your Honour gave an example about flailing arms, which in my submission is not particularly relevant to the case before the jury.
HIS HONOUR:        That was why it was chosen.
COUNSEL:     But Your Honour then went on to say, mere lack of recollection is different from no intention to commit the act. Common experience is that you have too much to drink, you are then in an intoxicated state and you do all sorts of things, for example, driving home from a party, you don’t remember it. Indeed I think that’s the evidence in this case and I wasn’t quite sure whether I’ve correctly noted what Your Honour said there, but I took Your Honour to be saying that the evidence in this case was that the accused had driving home from – no?
HIS HONOUR:        No, I didn’t mean to – I will talking in the submissions about that, but sorry go on.
COUNSEL:     It was a little confusing but I understood Your Honour to have been suggesting that the evidence in this case included driving home and the concern about that is that when Your Honour summarised [W’s] evidence Your Honour referred to a little bit of evidence where he said he saw him get in the car he thought.
HIS HONOUR:        Yes.
COUNSEL:     But it was clearly put to [W] that he hadn’t given him the keys and he said, well I offered him the keys, but he didn’t say I gave him the keys. It was also clearly put to him that he never said in his statement that he gave him the keys when he was taking him to drop him off or that he waited and saw him get in the car or saw him drive off. All of those things were put to [W] and he agreed, but in his statement he had not referred to those matters. There is clearly an issue there and of course [the applicant] in his evidence says he doesn’t believe he did drive home - - -
HIS HONOUR:        I am with you now.

and
HIS HONOUR:        But in any event so long as I didn’t say that the accused did drive him I think it’s a matter that the car was at home the next morning, that [W] dropped him off at his car. In the end it is unexplained how the car got back to [the applicant’s] place.
COUNSEL:     I think Your Honour needs to indicate that it is disputed that [W], or there is a - - -
HIS HONOUR:        [W] can’t recall arrangements about the car.
COUNSEL:     Yes.
HIS HONOUR:        His shorts were on a plastic bag, his car on the lawn at [an address in Hillcrest Road]
COUNSEL:     …
HIS HONOUR:        I beg your pardon, yes. Can’t recall arrangements about the car.
COUNSEL:     The shorts on the front passenger seat was something the accused gave evidence of relevant to the issue of his car getting home or him getting home. He said he couldn’t recall how he got home but he didn’t believe he drove home, he wasn’t fit to - - -
HIS HONOUR:        He doesn’t believe he drove but in the end the car was at home, it got there somehow and [W] didn’t drive it.
COUNSEL:     Yes, there is no actual evidence at all as to how the car got home.
HIS HONOUR:        As to how it got there, yes.
COUNSEL:     I think that’s an important point, Your Honour.

The prosecutor responded this way:

COUNSEL: Your Honour, just in relation to that I’ve got no problem with Your Honour telling the jury that in terms of intent that it has to be a conscious voluntary deliberate act ---
HIS HONOUR: I am presently not disposed to say anything more about intent, I think I’ve read out a full direction and as soon as I start ---[6]

[6]Discussion, 898.

When summarising the evidence, the judge essentially began with the first witness and dealt with the witnesses in the order in which they had been called. He did not relate their evidence to the issues in the case, although in the case of some witnesses their evidence went only to a single issue.

His Honour did not refer in any detail to W’s evidence, when first called, about taking the applicant back to his car. But he said this in respect of the witness’s evidence when he was recalled:

You will recall that then after Dr Roberts, [W] was recalled and [counsel] put to him that whether or not he had had [the applicant’s] keys at his house. And he said ‘Definitely not.’ His recall was, ‘I think I saw him jump in his car at the time.’ That [the applicant] went home in [W’s] shorts and that he says that ‘[the applicant’s] car was on the lawn I think at Steve’s place: but that he cannot recall the arrangement about the car.

The learned judge, summarising the applicant’s evidence, said this in part:

Remember fireworks on the peninsula, Ulanda gave me a kiss. Last clear memory I have. Do not remember leaving the party or going to [W’s] home. If I drink excessively and smoke pot it makes me quite ill. Next memory in the morning is it is the morning and the police knocking on the door.
My car was parked in the carport. Noticed my blue shorts in the car, they had vomit on them and they were wrapped in plastic on the seat of the car.

and
He said with regard to the car keys – just with regard to this issue of the car, the evidence of [W] as best I recall it was that when he was recalled he remembers taking him to Steve’s place, dropping him off, the car was on the front lawn and he can’t recall what happened with regard to the issue. In the end the car was at [the applicant’s] place in his carport next morning. As to that with regard to the car keys [the applicant] said at 7.30 at night Detective Roberts gave him the car keys and said he had dropped them in the car. Remember that was in the police car. I suppose in the end there is no direct evidence about how the car got home. Again, certainly from [W] at least he denied driving it or having anything to do with it getting home. That is the evidence with respect to that issue. There were some more submissions put by counsel with regard to it.

and
With regard to his memory he was closely cross examined by [the prosecutor], ‘Parts of the night I can’t – when I’m really pissed or stoned I can’t remember.’ He asked him about blackouts, whether he had blackouts and not remembering parts of nights. He agreed that he does not remember how he left the party, do not know where he slept in the house. Does not remember anything until the next morning, the circumstances if you describe them he has woke up about half an hour before the police arrived.
He was cross examined about the ‘Am I dreaming?’, whether he disputed that evidence, that is that [W] had described him standing a [sic] the door peering in, ‘Am I dreaming?’ He was cross-examined about whether he was prepared to accept the allegation if in fact [W] had put it.
Then he was further cross examined the next day and again about the different between the couple of beers or five to seven beers. He said, he hadn’t had a drink for six days prior to that, he was trying to get some control over it. He had no memory from just after midnight until just before the police arrived. He cannot remember particular things such as vomiting in the kitchen, he could not remember knocking over a clothesline, he could not remember breaking branches out the front of the house. He could also not remember looking back into the house, those four items.

I turn to his Honour’s summary of the addresses of counsel so far as they were presently relevant.

With reference to the prosecutor’s address the judge said this:

He further reflected on [W’s] evidence talking about [the applicant] had had a fair bit to drink and the inconsistencies between how much he had to drink as he described it to the police in the recorded interview and what he told you in the evidence. What you make of that is a matter for you. Whether you find this true or not and then if you do what you make of it. It is the same for all the inconsistencies whose ever they are. If you find them to be inconsistencies in the evidence.
He talked about [the applicant] getting drunk that night and again he took you to that particular incident where the evidence from [W] about [the applicant] poking his head back into the house saying, it is just a dream and pointing out there were not children there then. He was taken to the transcript on that, he describes as being half out the front door. Of course you will have the sketch map of the house in any event as an exhibit but that is the evidence from [W] with respect to that matter. Then of course as to [the applicant] that is an issue in respect of he has no particular memory.

and
He took you to with regard to the issue of the element of intent as I have remembered that third element I have taken you to, that the Crown must establish beyond reasonable doubt and it is a matter for you with respect to the evidence with regard to the consumption of alcohol and/or drugs. He said the evidence is that a drunken intent is nevertheless an intent. The fact that [A] gave evidence of [the applicant] saying, you are weak, that his mind was sufficient working at that stage and indeed that a drunken intent is still an intent. Indeed you can look at the things that he did on the particular night as evidence in the fact that he was functioning.

His Honour then noted submissions made for the applicant, including -

She says, [the applicant] is open, he does not recall what happened after midnight, he was extremely intoxicated, vomiting, stumbling, trying to find his clothes and subsequently fell in the bushes. Then the issue about the car and how did it get home. She submits to you what did [W] do with [the applicant] when he left that night, why drop him near N’s place. If he wanted to be rid of him, why not take him home. She invited you to find there was something a bit fishy about the version of evidence and looked at the time of calls and there was some delay over and above that which people described.

Jury deliberations

The jury retired just after 3.00pm on 26 March 2007.

The jury asked to re-hear the VATE tapes, and for a transcript of the evidence of W, CH and B. These requests were attended to on the morning of 27 March.

On the afternoon of 27 March the jury asked another question. The judge described it this way:

The question is, jury require further guidance of the definition of intent in terms of its implication to the third element of the charge. Then in brackets, or can the jury have a transcript of Your Honour’s summary on this issue. I think it is appropriate to do, is to read again that part of the charge I gave them.

Counsel for the applicant then made this submission –

Well Your Honour will recall that I was concerned that the charge in relation to intent wasn’t sufficient and in my submission Your Honour ought to say some more about what is required to be proven by the Crown, beyond reasonable doubt in that regard. In my submission, if your Honour re-directs, Your Honour ought to tell them that the Crown is requirement [sic] to prove mens rea which is another term for a guilty mind and that a guilty act must be accompanied by a guilty mind, which is an intention to commit the act in question and an awareness that you are doing so, and that if an act is committed in a state of non-awareness, or whilst asleep or dreaming, then that would not be sufficient to establish a guilty mind and that if they are not satisfied as to a guilty mind, beyond reasonable doubt, they must acquit. So if there is evidence capable of raising a doubt as to voluntariness or the existence of intent, of an actual intent and if the Crown has not removed that doubt, have not proven their case beyond reasonable doubt, then they must acquit, The intent, of course, is a specific intent to commit the act as charged.

The learned judge re-directed this way:

The prosecution must prove beyond reasonable doubt the following elements.
First, the accused took part in an act of sexual penetration with a person. That that person was under 16 years and that the act of the accused was intended.

and
As to the third element, of course, again it is the Crown’s obligation to establish that element beyond reasonable doubt and I read to you yesterday, when considering that element, you should bear in mind the effect of intoxication, because clearly there was evidence led during the trial that the accused man … had taken during the course of the day, marijuana from time to time. I won’t reflect on the facts, no doubt you have recalled them. If you cannot accurately, then we can always go back to the transcript and there are also amounts of beer that he had drunk during the day and that evening and possibly other drink that was available that night.
As to that, the following:
When considering whether you should infer, and you will remember what I told you about inferences, when considering whether you should infer that the accused had the necessary guilty intention, it is open to you to look at that question in the light of the degree of intoxication, be it alcohol or drugs or both, which you find that accused was labouring under on this occasion. But the mere fact that a person is intoxicated, does not mean that he or she did not form the necessary intent to commit a crime. A person’s state of intoxication can vary greatly in degree. He or she may be intoxicated to the degree that they do act voluntarily and intentionally in a manner which, in a sober state, they would not be likely to act.
Intoxication to this extent, although perhaps explanatory of the accused’s conduct, has not destroyed his will. Nor precluded the formation of any relevant intent. Indeed, intoxication to this degree may well explain how the accused came to commit the crime. Intoxication to the stated degree might have rendered the accused less concerned about the gravity of what he was doing, or of its possible consequences, but it will not ordinarily prevent the accused from performing an intentional act nor intending the consequences of those acts and accordingly, does not affect the accused’s criminal liability for those acts.
But the state of intoxication may reach a point of such intensity that the accused’s mind will become separated from the movements of his body, so that such movements are truly involuntary and unintentional. One can imagine the case of an individual, and this is an example, one can imagine the case of an individual whose arms are flailing about in the course of a frenzy induced by gross intoxication. It a flailing arm his a passer by and causes injury, it may be said that the injury was caused by an involuntary act. There would, accordingly, be no criminal liability in respect of the injury, because what had been done had been done involuntarily and without any intent to do it.
Now finally in relation to this question of intoxication, I should point out that mere lack of recollection of an event is quite a different thing from having no intention to carry out the act in question. You will all readily appreciate that a person may lose their recollection of an event for one reason or another, but at the time the conduct in question was carried out, the accused did it intentionally. I suppose it is a common enough experience for an individual to have too much to drink and in an intoxicated state, to do all sorts of obviously intentional things, such as driving his car home from a party. The next day he may have no recollection of doing so, but it would not follow that because he does not recall the event, that the action was not intentional. Accordingly, you have got to look at all the facts here and make your findings as to the circumstances and ask yourselves whether you are satisfied that in doing what the accused did on this occasion, he was acting consciously and voluntarily and that the accused intended to bring about the consequences of his conduct, namely of course in this case, sucking [the complainant’s] penis.

In almost all respects, the re-direction was a repeat of what his Honour had first said. There was a particular difference. His Honour did not repeat his observation, close by his example of a person driving home from a party whilst intoxicated, that ‘indeed, I think that is the evidence in this case.

The jury returned a verdict of guilty in the early afternoon of 28 March.

Ground 1

Counsel for the applicant submitted that the learned judge –

(1) Had failed to make it clear that proof that conduct was both voluntary and done with requisite intent lay upon the Crown.

(2) Had not related his directions to the factual issues.

(3) Had used two examples – one of which was remote from the case, and the other of which had effectively foreclosed, against his client, the significance of intoxication as tending against the formation of relevant intent.

According to the written submissions of counsel for the Crown, the judge had correctly raised the issues of both voluntariness and intention and had given an appropriate example of an involuntary act. The jury could have been left in no doubt that it had to consider the extent of the applicant’s intoxication, whether it prevented him from voluntarily putting the complainant’s penis in his mouth, and whether or not he placed the boy’s penis in his mouth intending to do so. These were common sense matters for determination. No doubt with the last-mentioned submission in mind, counsel drew attention to the fact that no expert evidence had been adduced as to the effects upon mind or body of the (presumed) extent of the applicant’s intoxication.

Orally, counsel for the Crown submitted, in part inconsistently with his written submissions, that –

(1) There was no evidentiary basis for a conclusion that the applicant’s act had been otherwise than voluntary.

(2) There was evidence of a high degree of intoxication, and it was not argued that the issue of intention in the presence of intoxication should not have been left for the jury’s consideration.

(3) The ‘driving example’ had been a good, everyday example of intentional conduct despite intoxication.

(4) The driving example had not foreclosed, adversely to the applicant, the jury’s consideration whether, in light of his intoxication, the Crown had proved intent to the criminal standard. That was because there had been no basis for the jury finding that the applicant had driven his vehicle from Hillcrest Road to his home on the morning of 1 January 2006.

(5) It was ‘hard to imagine’ that the act done had not been intended.

(6) The case was one, in any event, in which the proviso to s 568(1) of the Crimes Act 1958 (Vic) could be applied.

I consider, for the following reasons, that the applicant has made out this ground of appeal; and that the Court should not dismiss the appeal in reliance upon the proviso.

How the direction came about

It was the judge who raised the issue of intoxication with counsel – asking, in effect, for submissions as to whether a direction should be given; and, if so, then what direction. The prosecutor interpreted this enquiry as implying that the judge felt that he was obliged to give a direction about intoxication. His response was to say that he had better address the subject in his final submissions. The judge thereafter made it clear that he would be obliged to give a direction about the effect of intoxication, regardless what counsel said, if the issue was raised by the evidence. That led on to the prosecutor saying that he thought, on all the evidence, that an intoxication direction had to be given. The judge stated that ‘probably it is the one that … talks about intent and formation of intent …’ Counsel for the applicant agreed that a direction should be given, whilst emphasising that the applicant’s primary case was that the impugned conduct had not taken place.

Out of all this, it emerges that both the judge and counsel were agreed that there was evidence of intoxication, fit to be considered by the jury, which was capable of casting doubt upon the applicant having formed the intent which the Crown had to prove in order to establish the charge. That was also the position adopted by counsel for the Crown on the appeal. I consider that it was correct. Certainly there was evidence that in the early hours of 1 January 2006 the applicant was much affected by alcohol, and probably also by use of marijuana.

Counsel’s addresses

In order to better understand what the learned judge needed to say in his charge, it is to be noted that the prosecutor[7] did make submissions directed to the effect of intoxication upon the formation of intent. So, it appears, reference was made to inconsistencies in the evidence as to how much alcohol the applicant had consumed, to the ‘dreaming’ remark attributed to the applicant by W, to drunken intention being nonetheless intention, to the evidence of the witness A that the applicant had said she was ‘weak’ when she called on him to desist, and to the conduct of the applicant during the night which showed, it was submitted, that his mind was functioning.
[7]To judge from his Honour’s summary of counsel’s addresses.

Applicant’s counsel, on the other hand, made no submissions specifically with respect to intent. No doubt that was a forensic decision. The applicant’s case was that he had not committed the act. Counsel did, however, make passing reference to her client having been extremely intoxicated, vomiting, stumbling, falling into bushes; and about there being an issue as to how the applicant’s car came to be at his home on 1 January 2006.

In the event, the judge was confronted by a situation in which he had determined that an intoxication direction should be given, and in which only the prosecutor had specifically addressed that issue. It was of particular importance in those circumstances that his Honour assist the jury with respect to the interrelationship between proof of requisite intent and intoxication. He needed to articulate a case which, for forensic reasons, applicant’s counsel had not advanced;[8]and to identify potentially relevant evidence, thereby relating the law to the facts.[9]
[8]Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ), 132-133 (Menzies J) and 139 (Windeyer J).
[9]Alford v Magee (1952) 85 CLR 437, 466 (the Court).

The initial direction

Apart from a few introductory remarks, the judge’s charge concerning intent and intoxication consisted of reading out a model direction – including examples - contained in what was known as ‘Judge Kelly’s Charge Book’.[10] The model direction, by intention, presumably derived from the influential statement of principle by Barwick CJ in The Queen v O’Connor.[11]
[10]The direction appeared under the heading ‘Effect of Intoxication – An Alternative Direction’.
[11](1980) 146 CLR 64. Kelly QC, later Judge Kelly, appeared for the respondent.

The direction in the present case was, however, unsatisfactory in a number of respects.

First, I consider that it may be criticised because it failed to make clear a point made by Hunt J in R v Coleman,[12] emphasised by Winneke P in R v McCullagh[13] as follows:
[12](1990) 19 NSWLR 467, particular 485F and 486D-E.
[13][2002] VSCA 163.

Having regard to the nature and content of the evidence before the jury, and its relevance to the only defence made by the applicant to the charge, it was, in my opinion, incumbent upon the judge to carefully instruct the jury, in a manner long recognized by the law, as to how they should use the evidence of drug intoxication and fatigue in resolving the issue of whether the Crown had established the requisite intent necessary to support the charge of murder. Thus, in a case such as this where there was evidence, fit to be considered by the jury, that the applicant was intoxicated as the result of drug ingestion combined with fatigue, it was not sufficient to simply tell the jury that the Crown must prove beyond reasonable doubt that the accused in fact formed the requisite special intent. …
‘They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal … However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.’

Such a direction is sometimes called, inelegantly, the ‘negative direction’. Rather it is a specific direction designed to ensure that the jury understands the relevance of the evidence of intoxication to the issue of intent and the need for the jury, having regard to that evidence, to be satisfied that the Crown had excluded the possibility that, because of the combination of drug intoxication and sleep-deprivation, the accused had not formed the requisite intent to kill or cause really serious injury. In R. v. Graham John Coleman[14], Hunt, J. described the necessary directions in the following way:
[14](1990) 19 NSWLR 467, 486.
‘The trial judge should direct the jury that the Crown must establish that the accused had in fact formed the state of mind which is relevant to the offence charged. In relation to that issue (if intoxication has been sufficiently raised in the evidence), the judge should tell the jury that the onus lies on the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused’s intoxication. To do that the Crown must persuade them beyond reasonable doubt that the accused’s state of intoxication was not such as to deny the existence of the relevant state of mind which may otherwise be apparent from all the other evidence in the case.’

Hunt, J. went on to point out that, whilst these directions are necessary in cases where intoxication is raised on the issue of the formation of intent, the judge should balance them by telling the jury that intoxication does not amount, in itself, to a defence; and that in many cases it does no more than remove inhibitions or self-restraint and include a sense of self-confidence and, perhaps, aggression.[15]

and
In this case where, as I have said, the evidence relating to drug intoxication combined with fatigue was capable of raising a doubt in the minds of the jury as to the requisite intent, it was not sufficient for the judge to simply tell them that the Crown bore the onus of proving, to the appropriate standard, that the applicant had, at the relevant time, the requisite intent. He should further have told the jury, in relation to that issue, that the onus lies upon the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused’s drug intoxication and fatigue. He should also have told them, by reference to the evidence, that the Crown must persuade them beyond reasonable doubt that the accused’s state of drug intoxication, combined with fatigue, was not such as to deny the relevant state of mind which might otherwise be found from the other evidence in the case. In a case such as this, it is only by giving specific directions of the kind to which I have referred that the judge can comply with the fundamental obligation of assisting the jury to apply the relevant law to the facts and issues raised by the evidence in the case.[16]

[15]Ibid [15].

[16]Ibid [21]. McCullagh was a case of so-called ‘specific intent’. But the potential relevance of evidence of intoxication in connection with proof of intent applies both to cases of that kind and to cases of so-called ‘basic intent’. O’Connor itself was a case of the latter kind.

The judge instructed the jury that it was open to it to look at the question whether it should infer necessary intention in light of the degree of the applicant’s intoxication. Later on, he invited the jury to ask itself when it was satisfied that, if the applicant did the alleged act, he was acting ‘consciously and voluntarily’ and ‘intended to bring about the consequences of his conduct’. Those directions were at best a very weak version of the required direction. Further, the reference to intent to ‘bring about the consequences’ of conduct was not helpful. The requisite intent was to do the act.

I am inclined to think, notwithstanding the fact that the judge directed the jury on a number of occasions that the onus of proof lay always upon the Crown to the criminal standard, that his Honour did misdirect the jury by not giving an explicit direction of the kind described in McCullagh. But I need not decide the point, because I consider that the direction was defective in other ways.

Second, the direction addressed, under the rubric of intention, both voluntariness and intention. They are separate concepts, although intoxication may be a cause of both involuntary action and also of action done without requisite intent. A trial judge must be alert to consider whether one or both concepts truly arise on the facts of the case, and to refrain from giving a direction which introduces an issue which does not arise. Concerning voluntariness, it was argued for the applicant that his alleged ‘dreaming’ remark was pertinent. Although I doubt the substance of the proposition, I could not exclude the jury reasoning that the remark, in context, indicated that such act as he had performed at the critical time was of the character engaged in by a sleepwalker, and should be regarded as involuntary. So I agree that the judge’s charge should have addressed both voluntariness and intent. I do not agree, however, that the example of involuntary action which his Honour gave was useful. To the contrary, I think that it was an unhelpful distraction.

Third, the judge’s example of an ‘obviously intentional’ thing done whilst intoxicated in my opinion stands differently. I agree with the submission of counsel for the applicant that, despite the effect of intoxication upon proof of formation of intent being a live issue, what his Honour said had the effect of foreclosing that issue against his client. It did so for the following reasons.

(1) Upon the common assumption that there was evidence of intoxication of an extent which might lead the jury to doubt whether the Crown had proved the requisite intent, the only example which his Honour gave of an ‘obviously intentional’ thing – ‘driving home from a party’ – had the real potential, in context, of standing as a direction that in this case the applicant’s intoxication could lead to no such doubt. It is immaterial that the example was directly read from the text in Judge Kelly’s charge book. It had particular resonance in the present case.

(2) Such resonance was in my opinion magnified by the judge adding that ‘indeed, I think that is the evidence in this case’. His Honour appears to have been saying, in substance, that the state of the evidence was that the applicant had driven home; that he had not remembered, later on, having done so; but that want of memory did not mean that an act which was obviously intentional had been otherwise.

(3) As I mentioned earlier, counsel for the Crown submitted in this Court that the jury could not have safely inferred that the applicant drove home from Hillcrest Road as a step in coming to a conclusion that his intoxication had not been so great as to cast doubt on his intent to commit the impugned act. So, counsel argued, the example could have had no relevance. But that does not follow. For the jury was never instructed, as it should have been – a fortiori if the ‘driving home’ example was to be given - that the evidence did not permit it to infer that the applicant had driven home. If (contrary to my conclusion) the direction did not foreclose the jury’s consideration of the issue of intent, at very least the jury was left believing that it was open to it to reason, as a step along the way to a conclusion that the Crown had proved that the applicant had formed the requisite intent, that he had driven home.

I should add this. In my opinion, it could not be safely assumed, only because the jury sought a re-direction as to intent, and because a period elapsed between the re-direction and the jury returning the guilty verdict, that the jury did not in the end treat what the judge had said as foreclosing the issue of intent. To conclude otherwise would, I think, involve an element of speculation.

Fourth, in my opinion the judge’s charge was for another reason seriously defective when dealing with the possible significance of intoxication a propos proof of intent.[17] Neither when giving his direction concerning legal principles, nor at any later time, did his Honour alert the jury in a specific way to evidence which, if accepted, bore upon the case which, for forensic reasons, applicant’s counsel had not advanced – that is, that having regard to her client’s intoxication the Crown had failed to prove the requisite intent. Rather, his Honour simply went through the evidence, witness by witness, in an indiscriminate way. The issue of intoxication as bearing upon intent being, by common agreement, alive, it was incumbent upon the judge - particularly when only the prosecutor had addressed the issue - to assist the jury by highlighting potentially relevant evidence. It consisted, at least, of evidence as to –
[17]And voluntariness, assuming that absence of voluntariness was opened up by the evidence.

· The amount of alcohol and marijuana which the applicant had respectively consumed and used; and when he had done so.

· The applicant’s conduct whilst at the barbeque, as the evening progressed.

· The applicant having given over his car keys, or having them taken from him, whilst at the party.

· The applicant having consumed more alcohol, and - possibly or probably – marijuana, after returning to the W home.

· The applicant’s conduct during the period from when he first went to bed until the alleged offending occurred. I have set out the gist of W’s evidence at [13].

· The applicant’s loss of memory for events over a protracted period.

· The very specific nature of the conduct constituting the offence.

· The circumstance that, the conduct must have involved taking down the complainant’s boxer shorts.

· The described position of the applicant when committing the act.

· The remark made by the applicant to the witness, A, when she told him to desist.

· The applicant’s ‘dreaming’ remark.

· The applicant falling into bushes when being removed from the home by W.

I do not say that all of that evidence must have been accepted by the jury. Neither do I suggest that the members of the jury would necessary have interpreted particular events in the same way even if satisfied that they had occurred. Some events, it might have been thought, pointed to involuntary action on the applicant’s part. But it might have been concluded that they were different in kind to the impugned act. Other evidence, it might have been thought, did bespeak likely want of relevant intent. Another possible interpretation of the effect of some of the evidence was, I think, that it revealed things done by the applicant which had a kind of drunken logic. Still other events, it might have been thought, favoured a conclusion that the applicant, albeit intoxicated, evidently intended to perform the offending act. In all, it may well be the case that so much of the potentially relevant evidence as the jury was prepared to accept did not speak with one voice; a circumstance which was relevant when the Crown carried the burden of proof of requisite intent.

In summary, I consider that the direction incorporated a misdirection, because it effectively removed a live issue from the jury’s consideration. I consider also that the judge was obliged to direct the jury, particularly in light of the ‘driving home’ example, that it was not open to it to infer that the applicant did drive his car home from Hillcrest Road. Finally, it is unarguably the case that his Honour failed to relate the law to the pertinent facts. A number of problems with the intoxication direction, I add, were raised by applicant’s counsel at the first available opportunity.

The re-direction

The jury sought ‘further guidance’ in respect of intent; ‘or’, as his Honour told counsel, it requested a transcript of his ‘summary on this issue’.

The judge did not give the jury ‘further guidance’. He rather repeated – subject to the difference which I earlier identified – the direction which he had earlier given.

The faults in the initial direction were not thereby remedied. Indeed, because with one exception they were repeated, the problem was magnified. The exception – that is, the omission from the re-direction of the remark that ‘indeed, I think that is the evidence in this case’ – to an extent ameliorated the harm done by the example of driving home from a party whilst intoxicated being an ‘obviously intentional’ act. But it did not solve the problem of the issue of intent being effectively withdrawn from the jury’s consideration. Further, if the issue (contrary to my opinion) was not so withdrawn, the ameliorating effect of the comment being omitted was modest indeed so long as the jury was permitted to infer that the applicant had driven home from Hillcrest Road.

The proviso

In my opinion the proviso cannot be applied in this case so as to lead to dismissal of the appeal.

In the first place, by effectively withdrawing from the jury an issue concerning proof of an element of the offence – an element which, by common agreement, was to be left for the jury’s consideration - I consider that there was a fundamental error in the conduct of the trial.

Next, if I was wrong in concluding that the judge withdrew the issue of intent from the jury’s consideration, his failure to direct the jury – particularly having regard to his ‘driving home’ example - that it was not open to it to infer that the applicant had driven home from Hillcrest Road was in my opinion a serious error in process. The same can be said of the judge’s failure to relate the law concerning proof of intent, in the context of intoxication, with the pertinent facts.

Each of the latter defects was nonetheless of a kind, I consider, as to require this Court to consider the record so as to determine whether ‘making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.’[18]
[18]Weiss v The Queen (2005) 224 CLR 300, 316 [41].

No argument was directed in this Court against a conclusion, if the proviso fell for consideration, that the applicant had committed the impugned act. That was the main battleground at trial. Nonetheless, my review of the record satisfies me to the criminal standard that the applicant did so act.

I turn to proof of intent. The question whether the applicant had driven home from Hillcrest Road became a subject of unjustified attention. I say ‘unjustified’ because there was no foundation in the evidence for the jury inferring[19] that the applicant had done such a thing. The issue began with a non-responsive answer to puttage. Then it was highlighted by the ‘driving home’ example and by the judge’s additional comment. If what his Honour said did not foreclose the issue of intent against the applicant, his failure to direct the jury that an inference that the applicant had driven home was not available left open the real prospect that the jury would reason impermissibly to a conclusion that the Crown had proved intent. But it does not follow that the Crown did not prove the requisite intent upon all of the evidence,
[19]That is, to the requisite state of satisfaction.

I go to the judge’s failure to relate the law to the facts. I have highlighted what seems to me to have been the potentially relevant evidence. I would say that the specific conduct alleged against the applicant, his described physical position in carrying it out, and his remark (if the evidence was accepted) of what he said to the witness, A, were matters telling in favour of a conclusion that he held the relevant intent. I consider also that other circumstances which I earlier identified arguably tended to that conclusion. But that was not necessarily so. Each of the first to sixth, eleventh and twelfth pieces of evidence which I identified at [68] above was capable, particularly in combination, of leading to a contrary conclusion. Not having seen or heard the witnesses, it is hard to get the flavour of their evidence, and thus to conclude what evidence should be accepted, and what should be made of it. Matters of impression, I think, would be important to resolving the question whether the Crown proved intent to the criminal standard. I am unable to be satisfied that the applicant’s guilt was established to that standard.

Ground 2

It is strictly unnecessary to deal with this ground, but I will make some short remarks concerning it.

The substance of the ground is that, since trial, credible evidence has come to light which would assist a conclusion that the applicant did not drive his car home from Hillcrest Road.

The proposed evidence was ‘new’, but not ‘fresh’. With reasonable diligence, as the applicant’s counsel conceded, it could have been found and could have been available at trial. That is so even though the ‘driving home’ issue only assumed unwarranted importance late in the trial.

In Ratten v The Queen,[20] Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) summarised the position regarding ‘fresh’ and ‘new’ evidence this way –

To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court’s view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.[21]

[20]Paraphrasing the statements of Barwick CJ in Ratten v The Queen (1974)131 CLR 510.

[21]Ibid 520

Later, in R v Challoner,[22] Kenny JA restated the difference between ‘fresh’ and ‘new’ evidence, and the consequences in each case, as follows:

Counsel for the applicant invited us to accept the proposition that there was little difference in principle between an appeal against conviction based on ‘new’ and one based on ‘fresh’ evidence. He submitted that in the end the test was the same for both ‘new’ and ‘fresh’ evidence, namely, whether there might have been a miscarriage of justice in that there is a significant possibility that the jury acting reasonably would have acquitted the accused of the charge if the evidence had been before it. In support of this submission, counsel relied on the comments of Malcolm, CJ in Anderson v The Queen (1996) 18 WAR 244 at 245-246.
In my opinion, the submission is misconceived. Plainly enough, an appellate court may intervene to set aside a conviction in order to prevent a miscarriage of justice: see Crimes Act 1958, s568(1). Whether there has been a miscarriage of justice by reason of a failure to produce an item of evidence at trial depends, at least in part, upon whether the evidence is ‘new’ or ‘fresh’. Whether the evidence is ‘new’ or ‘fresh’ affects the nature of any miscarriage which the Court seeks to prevent as well as the nature of the Court's intervention. None of these propositions is novel. Each is set out in the judgment of the Chief Justice (with whom McTiernan, Stephen and Jacobs JJ concurred) in Ratten v The Queen (1974) 131 CLR 510, at 516- 520. Later decisions of the High Court, such as Mickelberg v The Queen (1989) 167 CLR 259 and Gallagher v The Queen (1986) 160 CLR 392, do not call them into question and, indeed, some justices of the High Court have specifically confirmed them: cf Lawless v The Queen (1979) 142 CLR 659, at 674-676 per Mason J; Gallagher v The Queen (1986) 160 CLR 392 at 414 per Dawson J and Mickelberg v The Queen (1989) 167 CLR 259, at 301 per Toohey and Gaudron JJ.
There may be evidence not adduced at trial but which, when considered with all the other evidence given at trial, either shows the accused to be innocent or raises a reasonable doubt as to his guilt. In such a case, the conviction must be set aside outright. It is immaterial that the evidence was not ‘fresh’ in the sense that it was not available to the accused at the time of trial or could not with reasonable diligence have been found at that time. The newly produced evidence demonstrates the miscarriage of justice by showing that it would be unsafe or unsatisfactory to allow the conviction to stand because the accused should be acquitted. On other occasions, there may be evidence not adduced at trial which, though it does not show that the accused should be acquitted, nonetheless shows that there is a significant possibility (or likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the accused if it had had the evidence before it. In this event, at least as a general rule, there will be a miscarriage of justice only if the evidence in question is ‘fresh’ evidence in the strict sense, not merely ‘new’ evidence which the accused might reasonably be taken to have been able to adduce at trial. The reason there will be no miscarriage of justice if the conviction stands on the basis that the newly produced evidence, not being fresh evidence, raises no more than a significant possibility that the jury would have returned a verdict of not guilty, is that there is nothing to show that the accused has not already had a fair trial.

[22]Court of Appeal, 28 July 1998 (Unreported).

Save for W’s essentially speculative evidence when recalled, it was unexplained how the applicant and his car got from Hillcrest Road to his home.[23] The most that can be said of the ‘new’ evidence in this case, assuming its credibility, is that it would have put a barrier in the path of the jury reasoning, sequentially, that the applicant drove his car home, that he was a drunk who could act with drunken intent, and that he committed the charged act intending to commit it. Such evidence would neither have established the applicant’s innocence nor have given rise at least to a reasonable doubt of his guilt.
[23]It was not otherwise only because, later that day, the applicant seems to have had his car keys. He was equally likely to have had them whether he had driven his car home, or another man had done so.

The true position is that the evidence did not permit the jury to safely infer that the applicant had driven his vehicle home. The issue of intent being a live one, the jury should have been so instructed. The proposed evidence, had the jury been properly instructed, was unnecessary. All that it could have done, even if adduced and credible, was to reinforce something that did not need to be reinforced. It should have been inconsequential.

Orders

I would grant the application, allow the appeal, set aside the jury verdict and conviction, and direct that there be a re-trial.

REDLICH JA:

It is not in issue that the evidence in the trial raised two distinct defences. The first defence was that the applicant did not do the act alleged by the prosecution. This was the defence actively pursued before the jury. The second defence, which was an alternative to the first, and which as a matter of forensic choice was not explicitly raised by the defence before the jury, was that the complainant was so intoxicated at the relevant time that the act he performed was not conscious, voluntary or intended.

I would reject the applicant’s contentions that the directions of law of the trial judge were insufficient to make clear that it was for the prosecution to prove that the applicant’s conduct was voluntary and conscious or that it was done with the requisite intent. I consider that it was made clear to the jury that it was for the prosecution to satisfy the jury of these matters beyond reasonable doubt. I also reject the allied submission that what the trial judge said to the jury inadequately identified these elements of the offence. The trial judge’s duty will have been discharged when it can be said that the instructions of law have been conveyed with sufficient accuracy and clarity so that the jury could properly apply the law. What the trial judge said, in my view, satisfied that test. That is not to say, for the reasons advanced by Ashley JA, that the directions given were model direction on the issue of intoxication.

I agree with Ashley JA that the examples used by the trial judge were problematic although I would not on that ground alone view the trial as having miscarried. The example which bore upon voluntariness was said to be so remote

from the circumstances as to be of no assistance. Remote it was, but it was not such as to distract the jury from its task. The driving example was cited to illustrate when it could be said that a person is not so intoxicated as to be incapable of forming an intent. That example is the subject of complaint, not because it was remote from the circumstances but for the opposite reasons. It was a potential issue that the jury may have had to consider. It was unfortunate that the trial judge thus selected such an example and that he initially accompanied it with the observation that there was evidence of such driving by the applicant in this case. But I do not consider that it so tended in favour of the applicant having the relevant intent as to have the effect of withdrawing the issue from the jury’s consideration. Obviously the jury recognised that it remained a live issue as they subsequently sought a further direction on the law relating to intent.

The trial judge did not seek to identify the evidence which related to the alternative defence that the act was not voluntary and was not performed with the necessary intent because of the applicant’s intoxication. This was a serious omission. Although the course taken by the defence at the trial will contribute substantially to the form and content of the charge, the course taken by the defence is not determinative of the extent of the directions as to law and fact which the trial judge would be bound to give a jury.[24] A direction will only be adequate if it addresses the law and the possible use of relevant facts upon which the jury, on the evidence open to them, could base a verdict.[25] Thus the extent of the necessary directions is to be determined by consideration of what findings may be open to the jury on all of the evidence which has been placed before them. This obligation arises because, in order for the prosecution to prove every element of the offence beyond reasonable doubt, it must also prove that any defence open upon the evidence should be rejected by the

jury.[26] At least sincePemble v The Queen[27] the law has been that, whatever course counsel may see fit to take, even if for tactical reasons in what is perceived as the best interests of the accused, a trial judge must give an adequate direction as to the law and the possible use of the relevant facts upon any matter on which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or part.[28]

[24]R v V N (2006) 15 VR 113, [120] (Redlich JA).

[25]Mancini v DPP (UK) [1942] AC 1; Pemble v The Queen (1971) 124 CLR 107, 117-8 (Barwick CJ); R v Wilkes and Briant [1965] VR 475, 479 (Smith J); RPS v The Queen (2000) 199 CLR 620, 637 (Gaudron ACJ, Gummow, Kirby and Hayne JJ).

[26] Samuels v Stokes (1973) 130 CLR 490, [15] (Menzies J).

[27](1971) 124 CLR 107, 117 (Barwick CJ). See also Gillard v The Queen (2003) 219 CLR 1, [103]-[106] (Hayne J); Fingleton v The Queen (2005) 227 CLR 166, [82] (McHugh J).

[28]R v Tran [2007] VSCA 19 [8] (Nettle JA), [38]-[42] (RedlichJA).

It will rarely be sufficient for a trial judge who becomes obligated to direct the jury as to an alternate defence which arises on the evidence, but which has not, for forensic reasons, been pursued by the defence before the jury, to direct the jury as to the law that bears upon it without also relating the evidence to the jury that bears upon that issue.

The question of whether the applicant’s act was voluntary and intended was a ‘real issue’ plainly arising from the evidence as distinct from a ‘remote or artificial possibility’.[29] It was one of which the trial judge and the parties were fully cognisant during the course of the trial. The prosecutor thus addressed the jury on the evidence which he submitted established that the applicant’s conduct was voluntary and was performed with the necessary intent. The defence requested that the trial judge give the jury appropriate directions on this issue notwithstanding that the defence had not addressed the jury on that defence.
[29]Cf R v Stoddart (1909) 2 Cr App R 217, 246 (Viscount Alverstone LCJ, Darling, Phillimore, Bray and Lawrence JJ); Barker v The Queen (1983) 153 CLR 338, 368 (Brennan and Deane JJ).

Unlike the primary defence, this issue raised much more subtle questions which called for a careful assessment of quite different aspects of the evidence. It required the jury to guard against a finding, without an examination of the evidence that bore upon it, that the applicant necessarily intended the consequences of his act. The respondent unsurprisingly submitted on appeal that the account of what the

applicant had done bespoke the existence of the necessary intent. That submission highlighted, that in the absence of attention being drawn to the relevant evidence, there was an inherent danger that the jury would readily conclude that if the applicant performed the act, it must have been voluntary and intentional. Ashley JA has helpfully set out much of the evidence which the jury might have been invited to take into account in resolving this issue. It is not to the point that I consider it unlikely that a consideration of that evidence would have led the jury to a different verdict. I agree with Ashley JA that in failing to relate the evidence to this issue as the law requires, there was a miscarriage of justice. I also agree that this is not a case in which the proviso can apply. The consequence of the failure of the trial judge to give the jury such necessary instruction is that the applicant has been denied the opportunity of a verdict of acquittal. It cannot be said that there was no reasonable view of the evidence that would permit the conclusion that the Crown had failed to establish this element of the offence.

I would therefore allow the appeal and make the orders which Ashley JA proposes.

WEINBERG JA:

I agree, for the reasons given by Ashley JA, that leave to appeal should be granted, the appeal allowed, and a new trial ordered.

In my opinion, the sequence of events that led up to the jury’s verdict, including the request for a further direction as to intent, strongly suggests that the applicant’s primary defence, that the act itself had not been proved, was readily rejected. That would hardly be surprising, having regard to the weight of the evidence, which included not only the testimony of both N and A, but also the highly compelling DNA evidence itself.

In a sense, it was surprising that the applicant’s defence focused exclusively upon his denial that the act itself had taken place. That defence was always highly

problematic. Given that he appeared to have no recollection of anything that had occurred at around the relevant time, a defence based upon the Crown’s inability to prove the requisite intent would seem to me to have been more promising. There was a solid foundation for such a defence. Plainly the applicant was seriously inebriated, and probably heavily under the influence of marijuana, at about the time of the alleged offence.

That meant that the trial judge was obliged to direct the jury with great care regarding the impact of alcohol and drugs upon the applicant’s state of mind on the morning in question. By telling them that it was a common enough experience for an individual to have too much to drink and, in an intoxicated state, ‘to do all sorts of obviously intentional things, such as, for example, driving home from a party’, his Honour used an example that was singularly inappropriate in the circumstances of this case. That was because the example chosen was ‘too close to the bone’. As the Crown properly conceded before us, there was no basis upon which the jury could have found, beyond reasonable doubt, that the applicant had driven home that morning.

His Honour’s observation, ‘Indeed, I think that is the evidence in this case’, only compounded the problem. When the two statements are taken together, they reveal, in my view, that the jury could well have understood them as, in effect, withdrawing the issue of intoxication, and its relevance to intent, from their consideration. Yet the question of intent was the very matter that concerned them when they sought the further direction from the trial judge.

I also agree with Ashley JA that his Honour failed adequately to relate the law, as he explained it to the jury, to the facts of this particular case.

In my view, there can be no question of invoking the proviso in such circumstances.

---

[2008] VSCA 282

23 December 2008