Seccull v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0066

JON SECCULL	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, ORR and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2025
DATE OF JUDGMENT:	11 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 216
JUDGMENT APPEALED FROM:	DPP v Seccull [2023] VCC 263 (Judge Dawes)

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CRIMINAL LAW – Appeal – Conviction – Rape – Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence – Open to the jury to accept evidence of contemporaneous complaint supporting complainant – Leave to appeal refused.

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Counsel
Applicant		Mr P Smallwood and Ms S Locke
Respondent		Ms E Ruddle KC with Mr G Buchhorn
Solicitors
Applicant	Emma Turnbull Lawyers
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
ORR JA
KIDD JA:

Introduction

An indictment filed in the County Court (‘the second indictment’) contained 15 charges against the applicant: four charges of penile-oral rape (charges 1, 4, 8 and 9); four charges of penile-vaginal rape (charges 2, 11, 13 and 15); three charges of penile-anal rape (charges 7, 10 and 14); one charge of digital-anal rape (charge 6); two charges of common assault (charges 3 and 5); and one charge of making a threat to inflict serious injury (charge 12).[1] ‘SM’, the applicant’s wife, was the complainant on each charge.
[1]The first indictment filed did not contain a charge of penile-anal rape on 14 February 2014, which became charge 7. SM first disclosed the alleged penile-anal rape to the prosecutor shortly before the applicant’s case was first listed for trial. See [45] below.
The applicant was tried on that indictment throughout May and June 2021 (‘the first trial’). On 11 June 2021, the jury at that trial found the applicant guilty on nine of the rape charges (charges 4, 6 to 11, and 13 to 15), both charges of common assault[2] and the charge of making a threat to inflict serious injury.[3] The judge directed verdicts of acquittal on two other charges of rape (charges 1 and 9), and the jury acquitted the applicant on a third (charge 2). Subsequently, on 18 October 2021, the trial judge sentenced the applicant to 15 years’ imprisonment, and fixed a non-parole period of 10 years and 6 months.
[2]Charges 3 and 5, contrary to common law.
[3]Charge 12, in breach of s 21 of the Crimes Act 1958.
Almost a year later, on 30 September 2022, this Court allowed an appeal against conviction, set aside the convictions in the first trial and ordered that there be a new trial.[4]
[4]Seccull v The King (2022) 69 VR 454 (Priest AP, Niall JA and Kidd AJA).
The present application for leave to appeal against conviction relates to verdicts returned by a jury at the new trial ordered by this Court (‘the second trial’).
For the purposes of the second trial a new indictment (‘the third indictment’) was filed containing nine charges of rape (charges 2, 4 to 8, and 10 to 12); two charges of common assault (charges 1 and 3); and one charge of making a threat to inflict serious injury (charge 9). The applicant was tried on the third indictment in October and November 2023; and, on 2 November 2023, the jury found him guilty of three charges of rape (charges 6, 7 and 8) and the charge of threatening to inflict serious injury (charge 9). All other charges resulted in verdicts of not guilty. Following a plea, on 13 March 2024 the trial judge sentenced the applicant to 9 years and 9 months’ imprisonment with a non-parole period of 6 years and 10 months.[5]
[5]The judge imposed sentences of 8 years’ imprisonment on each charge of rape, and 9 months’ imprisonment on the threat charge. The sentence on charge 6 was the base sentence. Six months of the sentence on charge 7; 1 year of the sentence on charge 8; and 3 months of the sentence on charge 9 were ordered to be served cumulatively upon the base sentence.
It may thus be seen that over the course of two trials juries have acquitted the applicant of 11 of the 15 charges initially contained in the second indictment. As we have indicated, the first trial resulted in acquittals on three charges of rape (charges 1 and 9 by direction, and charge 2 by jury verdict). And in the second trial, the jury found the applicant not guilty on six charges of rape (charges 2, 4, 5, 10, 11 and 12) and two of common assault (charges 1 and 3), but found him guilty on three other charges of rape (charges 6, 7 and 8) and one charge of making a threat to inflict serious injury (charge 9).
In support of the application for leave to appeal against conviction the applicant relied on a single ground that contended that the verdicts of the jury on the three charges of rape are ‘unreasonable and unsupported having regard to the evidence’.
We consider that the ground must fail. For the reasons that follow, leave to appeal against conviction must be refused.

Overview

The applicant and SM married in February 2003. They separated in 2016, and divorced in 2019.
It seems that from 2008 the applicant encouraged SM to participate in sexual activity with other men. With the applicant’s encouragement, SM started meeting other men for sex in 2011.
The prosecution case was that over several years the applicant forced SM to have sexual encounters with other men. Those encounters were live-streamed or recorded for viewing by the applicant for his sexual gratification. The prosecution alleged that the applicant began to ‘punish’ SM when he was not happy with something that she had done. He would also say that she ‘owed’ him when he allowed her to do things that she wanted to do. The prosecution case was that the applicant abused, threatened, raped and assaulted SM on a number of occasions.
On the other hand, the defence case was that the applicant and SM were engaged in a mutually agreed ‘open’ relationship in which SM was an enthusiastic participant. She would consensually engage in sexual activity with other men, sometimes organised by the applicant, and sometimes organised by her. According to the defence, the applicant did not abuse, threaten, rape or assault the complainant.
The charges on the indictment related to four alleged incidents of offending as follows.

The first incident: charges 1, 2, 3, 4 and 5 – Verdicts of Not Guilty

SM’s evidence was that, on or about 23 April 2011, when she returned home from an arranged sexual encounter which was live-streamed to the applicant, he met her at the back door. He grabbed her, pushed her into the bath and urinated on her as he verbally abused her (charge 1 – common assault). The applicant then grabbed SM’s head and shoved his penis down her throat until she vomited (charge 2 – rape). He grabbed her throat, pulled her pants down, and grabbed her breasts and squeezed them hard (charge 3 – common assault). The applicant pulled SM’s hips towards him, licked his fingers and placed a finger inside her anus (charge 4 – rape). He then penetrated SM’s anus with his penis (charge 5 – rape), telling her that that was her punishment.
The jury acquitted the applicant on these five charges.

The second incident: charges 6 and 7 – Verdicts of Guilty

In February 2014, SM travelled to Queensland for an arranged sexual encounter with Shaun Buckney. During the sexual activity, SM ran out of data to stream and so instead recorded the sexual activity. The applicant sent abusive messages to her. When SM returned home on 14 February 2014, the applicant grabbed her, told her she would be punished for what she had done and forced his penis into her mouth until she vomited (charge 6 – rape). He turned her around and penetrated her anus with his penis (charge 7 – rape).
The jury found the applicant guilty of these two charges.

The third incident: charge 8 – Verdict of Guilty

On 30 April 2015, when SM and the applicant had been drinking together, the applicant verbally abused her and she went to bed. SM pretended to be asleep while the applicant, who was insulting her, grabbed her hips, pulled her underwear off and inserted his penis into her vagina (charge 8 – rape).
The jury found the applicant guilty of this charge.

The fourth incident: charge 9 – Verdict of Guilty; charges 10, 11 and 12 – Verdicts of Not Guilty

On 13 September 2015, SM returned from a trip to Sydney. When she arrived home, she and the applicant argued and he was verbally abusive. At one point, the applicant went to the shed and returned with a rifle. In SM’s presence he chambered a bullet. The applicant said that he was going to smash her head and put her into the ICU (charge 9 – threatening to inflict serious injury). He then went over to the bed and pushed SM into the middle of it. The applicant then tore off SM’s underwear and penetrated her vagina with his penis (charge 10 – rape), before penetrating her anus with his penis (charge 11 – rape). He then once more penetrated her vagina with his penis (charge 12 – rape).
The jury found the applicant not guilty on these three charges of rape, but found him guilty on charge 9, threatening to inflict serious injury. That conviction is not challenged.

The evidence at trial

Given the nature of the ground of appeal, it is necessary to summarise the evidence relating to the second and third incidents in moderate detail. Since verdicts of not guilty were, however, returned in relation to the charges relating to the first incident and fourth incident, save for charge 9, it is unnecessary to refer further to SM’s evidence concerning them.

SM’s evidence

SM’s evidence — pre-recorded over six days[6] — was played to the jury.[7]
[6]They were 5, 6, 9, 10, 11 and 12 October 2023.
[7]A prosecution application to play a recording of her evidence from the first trial was refused by a ruling made on 24 August 2023.
With respect to the second incident — which involved alleged penile-oral rape (charge 6) and penile-anal rape (charge 7) — SM gave evidence that she started communicating with Shaun Buckney through an adult Facebook page called ‘Wobbly Legs’. They communicated for ‘probably 12 months or so’ before she arranged to fly to Queensland to have sex with Mr Buckney on Friday, 14 February 2014. After she and Mr Buckney met, they went to his unit and had sex, which was live-streamed. She also took a video for the applicant’s benefit of giving Mr Buckney a ‘head job’.
SM said that when she returned home the applicant was ‘not happy’. Whilst she had been in Queensland the applicant had sent her ‘messages and stuff the whole time’, calling her names, telling her that he was not going to support her anymore, and ‘that it was over’. He was ‘just awful’. The activities founding charges 6 and 7 occurred after she went to bed. SM’s evidence-in-chief included the following:
[PROSECUTOR] And can you please tell the court what happened when you went to bed?---Um, [the applicant] told me that I had to basically make up for what had happened and that I was a stinking little whore and a fucking slut and he, um, grabbed my head and shoved his penis in my mouth and he just kept shoving it down and I literally thought I was going to just choke to death. Sucking on fucking someone else’s cock (indistinct) because I couldn’t breathe and it was just – and then I vomited. ‘Cause I was being punished.
You say you were being punished. Is that your interpretation or is that something that was said?---No, that was said. I would often get told, ‘You know what the punishments are. You need to do this or you’ll get punished’. Or if I do something wrong I’m going to get punished.
I want to take you to this particular occasion though. Was it said on this particular occasion?---He said, ‘You – you’re going to be punished’.
You said that he made you perform oral sex on him to the point of you vomiting?---Yeah, and then he turned me - - -
Where did – sorry?---He was holding my ponytail and, um, he kept holding it and turned me around and then stuck his penis in my anus until he come (sic). And then he goes, ‘Clean yourself up. Clean this up’. And he walked off to the bathroom.
And what did you do?---Stripped the bed because there was vomit in it, made the bed again and then he came down from the bathroom and got into bed and I went and had a shower.
Did you then after a shower go to bed?---I slept on the floor in the bathroom.
Sorry, I didn’t – I missed that?---I slept on the floor in the bathroom and I cried.
Was that before or after you had the shower?---Both.
After that, did you eventually go to bed?---Yes.
Was [the applicant] in bed at that time?---He was asleep.
Was there any discussion with [the applicant] about what had happened? ---No.
SM’s evidence was that the next morning she used a Facebook account under a false name to contact Mr Buckney. She told him that the applicant ‘made [her] vomit and that he’d arse fucked [her], that [she] was punished’.
As to the third incident — which involved alleged penile-vaginal rape (charge 8) — SM gave evidence that, on 30 April 2015, the applicant wanted her to celebrate with him by drinking alcohol. She said she drank four beers — which is more than she normally would — and the applicant drank ‘a lot’. During the course of the evening she received a phone call from a friend whose car had broken down and who asked her for a lift. SM told her friend that she could not pick her up because she had been drinking. When she hung up from her friend, she said to the applicant that she did not like drinking to this extent because she liked being able to drive when needed. The applicant was angry that SM did not want to drink with him and called her names. SM left the room and indicated that she would not be having sex with him that evening.
After some time, while SM was lying on the bed in her underwear, the applicant stood in the doorway of the bedroom and said: ‘I don’t know, babe, I don’t know what happened. I don’t know why I’m like this for’. SM realised he was recording her on his phone. She asked him to stop and moved toward him to push him out of the doorway but was unable to do so. SM tried to hit his arm to stop him from recording. The applicant said: ‘Now I’ve got proof, I’m going to show everybody what you’re like. You’re a fucking little psycho’. He threw a metal jewellery box over the bed, accusing SM of using it to hit him. She tossed it to the other side of the bed on the ground before she noticed she was bleeding from a cut under her eye.
SM said the applicant left the house, sent a series of text messages to her and then returned about 30 minutes later. Her evidence-in-chief continued:
[PROSECUTOR] Now, after those messages stopped at 11.04, what happened? ---Um, I was lying in bed trying to sleep, crying because of everything that had happened, and then I heard [the applicant] come back in the house, and he came up to the bedroom and he was just talking, like, to himself. He just would talk, you know. As I said, he doesn’t talk to me; it’s at me, and it’s just talking. And he was just talking to himself about what a horrible person I am, and I’m just awful, and he has to put up with so much. And, um, he climbed onto the bed and he – I was just pretending to be asleep ‘cause I just didn’t want to deal with him. And, um, he pushed me into the middle of the bed and he pulled my knickers off and pushed my legs apart and climbed on and started having sex with me, um, and is just talking the whole time about how useless I am, how awful I am and how much he has to put up with, and I’m – you know, he shouldn’t have to put up with what he does, and I’m a horrible person, and I’m nasty, and I’m vindictive, and I’m gonna go to the police and say that he’s hit me and say that he’s raped me. And then he’s, you know, mid-thrust. He’s like, ‘Oh, well, I’ve walked into that one, haven’t I?’ and then just kept going and was just ranting and carrying on, like, at me, just – just constant noise that comes out, saying awful, awful stuff, um - - -
I think you said at the start that you were pretending to be asleep. Did you continue to pretend to be asleep, or what did you do?---Absolutely, yes, absolutely pretended to be asleep.
When he got on top of you, did you attempt to, you know, like, push him off or anything like that?---No, not at all, no.
Why?---I pretended – I pretended to be asleep, and the thing is, the more you resist, the more (indistinct words) caused. I’d learnt that, so you just submit.
How did that incident end?---Um, he stuck his penis in me until he ejaculated, and then he rolled over and went to sleep.
What did you do?---I rolled over and went to sleep too. I cried myself to sleep.
On 2 May 2015, she told an ‘online’ friend, Winston Langthorne, by ‘Facebook’ message, about what had happened. The text of that message is reproduced below.[8]
[8]See [70].
Under cross-examination, SM agreed that she had signed an application for an intervention order in the Magistrates’ Court on 27 May 2016, and subsequently provided two sets of further and better particulars. She also signed an ‘intervention order statement’ on 7 September 2016. In none of those documents did she disclose rape or other sexual offending by the applicant. She did not tell the police about the sexual misconduct because she was ‘ashamed’.

Shaun Buckney

Shaun Buckney gave evidence that he met the applicant and SM on Facebook in 2013 through a group called ‘Wobbly Legs’, a group where consenting adults could flirt and share stories of sexual experiences. The first time he met SM in person was when she flew to Queensland to visit him in February 2014. That trip was organised between the three of them. The intention was for him to have sex with SM while the applicant watched via a live-stream. After their sexual activity, SM realised the live-stream had cut out at some point. SM received a phone call from the applicant before she and Mr Buckney went to some tourist sites.
Mr Buckney said that he took SM to the airport to return to Victoria on Monday, 16 February 2014. After she returned, SM communicated with him by Facebook, initially using an account under her name, then at some stage using the pseudonym ‘Samantha Bromley’. On one occasion SM initiated a conversation using Facebook and they then conversed by telephone. In that conversation, SM told Mr Buckney that after she returned to Victoria the applicant ‘physically abused her, verbally abused her, raped her, sodomised her and forced her to perform oral sex on him until the point that she vomited two or three times’.

Tamsyn White

Tamsyn White, a psychologist, gave evidence that she met SM in 1999 when they attended university. After university they remained close friends, and were always in contact.
Ms White said that she had lunch with SM on 29 October 2015. SM disclosed to her instances of the applicant’s physical, emotional and financial abuse. SM told her that on nights they would argue, the applicant would lock SM out of the house in her underwear. As a result, Ms White arranged a spare house key for SM.
On 6 November 2015, Ms White met SM for coffee. SM told Ms White that the applicant had threatened her with a firearm and had said that he would not shoot her because she was not worth the bullet. SM also told her that the applicant had said that he would bash her and leave her in the ICU.
Later, on 6 and 7 March 2016, SM told Ms White that she had decided to leave the applicant.
On 25 April 2016, Ms White met SM and her three children at the Anzac Day dawn service before returning to Ms White’s house. Her evidence-in-chief continued:
[PROSECUTOR] And so this is Anzac Day, what did she disclose to you on that occasion?---She disclosed that [the applicant] had been sexually abusing her, two particular incidents of sexual abuse, one in which she, ah, I guess, expanded upon her previous disclosure around that gun that during that incident where he had been threatening her with that gun he had also raped her and that the nature of the rape had been anal, that it had hurt a lot. And then she went on to disclosure (sic) another incident.

What was that other incident that she’s - - - ?---Um, an incident whereby [the applicant] had spent, a, she said approximately a four hour period screaming at her.
And then was there a filming?---Yes, then - - -
He filmed her?--- - - - then his tone changed at one point. She wasn’t looking at him at that time and she was struggling to understand why his tone had changed and when she looked up he was filming her with his phone.
And did she tell you what happened after that?---She said that she got into bed to um, stop herself being filmed in a state of undress after asking him to stop, and he wouldn’t, and that he got into bed with her and she tried to pretend to be asleep. Um, after which he raped her, attempted to rape her anally. He wasn’t successful, ah, he couldn’t insert himself, I guess, um, and then he raped her vaginally and during that vaginal rape he was saying things like, ‘I’ve really fallen into your web. You’re gonna use this against me. I guess you’ll go to the police and accuse me of rape now’.

Ms White also gave evidence that, in August or September 2016, SM disclosed that, upon her return from Sydney, the applicant urinated on her, forced her into oral sex and caused her to vomit, and raped her.

Senior Sergeant Paul Allen

Senior Sergeant Paul Allen, the informant, gave evidence that in mid-2016 he was a Detective attached to the Sex Offence and Child Abuse Investigation Team. He first met SM on 26 July 2016 when she attended the police station and made allegations of family violence. An officer from the Family Violence Unit, David Lalor, had contacted him given that SM disclosed allegations of a sexual nature. Later, on 7 September 2016, SM made a 25-page ‘intervention statement’ which was taken by another officer.
Detective Allen next spoke to SM on 13 December 2016, when she asked to speak to him about sexual offending by her husband. Subsequently, on 3 February 2017, SM completed and signed a 10-page statement, describing the third and fourth incidents. Detective Allen then arranged for the applicant to attend the police station and be interviewed in relation to those two incidents. As a result, on 2 March 2017, the applicant participated in a record of interview (which was played during the trial).
SM completed a subsequent statement on 17 April 2017 for the purposes of changing the date of the third incident, and so as to supply the Facebook messages between herself and Winston Langthorne on 2 May 2015 in relation to that incident.
Detective Allen said that SM made another statement on the morning of the applicant’s committal hearing, 25 October 2018, before any evidence started. That statement did not contain any further complaints of sexual offending. She later made two further statements: a 71-page statement on 20 September 2019, and another on 3 November 2019.

The applicant’s submissions

The applicant’s counsel submitted that there were significant inconsistencies, discrepancies and inadequacies with SM’s evidence such that the jury must have had a reasonable doubt about the applicant’s guilt. Counsel submitted that the central inconsistency, discrepancy and inadequacy was the way in which SM made the disclosures in this case. SM had multiple opportunities to reveal her allegations against the applicant. The jury were made aware of a lack of consistency and inadequacies in the information provided by SM with respect to the four charged incidents. Counsel submitted that SM’s accounts, with the opportunity to provide more information, were given over a long period of time and at crucial stages of the criminal prosecution.

Submissions concerning the second incident: charges 6 and 7

With respect to the second incident, embracing charges 6 and 7, counsel provided a chronology to demonstrate that SM had various opportunities during the course of intervention order and criminal proceedings to give an account about what she said occurred during the second incident. She failed to mention it on several occasions, however, and the accounts she provided were inconsistent. Counsel provided a chronology to illustrate the point:
·27 May 2016:          No mention of the incident was made in the application for an intervention order.
·26 July 2016:           SM attended police station and talked with officer David Lalor and Detective Allen. No mention was made of the incident.
·Around July 2016:   SM provided detailed further and better particulars in support of her application for an intervention order. She mentioned the incident and said she was made to give the applicant oral sex until she vomited, but no mention was made of any anal rape.
·18 August 2016:      SM provided amended further and better particulars for the intervention order application in which she repeated that she was made to give oral sex and vomited.
·7 September 2016:   SM provided her first statement to police. She referred to the incident and repeated that she was made to give oral sex and vomited.
·13 December 2016: SM met with Detective Allen. She made no mention of the incident and provided no further details.
·3 February 2017:     SM made a second statement. She made no mention of the incident and provided no further details.
·17 April 2017:         SM made a third statement. She made no mention of the incident and provided no further details.
·25 October 2018:     SM made a fourth statement. She made no mention of the incident and provided no further details.
·27 November 2018: SM met with Detective Allen. She made no mention of the incident and provided no further details.
·11 December 2018: SM met with Detective Allen. She made no mention of the incident and provided no further details.
·20 September 2019: SM made a fifth statement, in which she alleged for the first time that, in addition to forced oral sex, the applicant anally raped her. Significantly, this was after the matter was first listed for trial. In the lead-up to the trial, SM made the allegation of anal rape to the prosecutor. As a result, the trial was adjourned and the fifth statement caused to be taken.

So far as the complaint to Mr Buckney was concerned, counsel drew attention to the fact that the Facebook messages from SM to Mr Buckney were not produced at trial, and Mr Buckney did not make a statement about the matter until six years after the event. And in any event, the strength of the evidence was dependent upon SM having told him the truth.
Furthermore, counsel submitted that SM’s explanation for failing to mention having been anally raped until meeting with the prosecutor prior to the first trial was unconvincing. During cross-examination, SM maintained that she did not want to reveal the rapes or sexual assaults in the intervention order proceedings. Her explanation for revealing in the particulars oral sex causing her to vomit, but not the anal rape, ultimately was that she did not know that forced oral sex was a rape. Counsel submitted that, in the circumstances of this case — involving both graphic consensual and non-consensual sexual activity — it is implausible that SM truly believed that forced oral sex was neither rape nor sexual assault.

Submissions concerning the third incident: charge 8

With respect to the third incident, involving charge 8, the applicant’s counsel submitted that SM had various opportunities during the course of intervention order and criminal proceedings to give an account about what she said occurred on 30 April 2015, but those accounts were inconsistent. Once more, counsel provided a chronology to illustrate the point:
·27 May 2016:          No mention of the incident was made in the application for an intervention order.
·26 July 2016:           SM attended police station and talked with officer David Lalor and Detective Allen. No mention was made of the incident.
·Around July 2016:   SM provided detailed further and better particulars in support of her application for an intervention order. She specifically referred to the incident on 30 April 2015 and provided a detailed account, but did not allege that she was raped.
·18 August 2016:      SM provided amended further and better particulars for the intervention order application. She specifically referred to the incident on 30 April 2015 and provided a detailed account, but did not allege that she was raped.
·7 September 2016:   SM provided her first statement to police. She referred to the incident and repeated that she was made to give oral sex and vomited, but did not allege that she was raped.
·13 December 2016: SM met with Detective Allen. She made no mention of being raped on 30 April 2015.
·3 February 2017:     SM made a second statement. She alleged penile-vaginal rape by the applicant while she pretended to be asleep.
·17 April 2017:         SM made a third statement. She made a correction to the date the alleged incident occurred.
Counsel submitted that, so far as the complaint to Mr Langthorne was concerned, Mr Langthorne neither made a statement nor gave evidence in the trial. In any event, there was no distinct complaint of rape. SM simply said, at the end of a lengthy written narrative: ‘I pretended to be passed out … as he fucked me’.
In relation to what SM told Ms White, counsel for the applicant submitted that SM’s evidence to the jury was that the applicant had penile-vaginal sex with her while she pretended to be asleep, but she told Ms White that the applicant penetrated her vagina after attempting to have anal sex with her. No complaint was made to Mr Langthorne of attempted anal sex. There were also inconsistencies between SM’s evidence, and what she told Ms White, concerning the subject-matter of their antecedent fight.
Moreover, counsel for the applicant submitted that two video clips, Exhibit 9 — which partially captured the lead-up to the alleged activity founding charge 8 — showed SM acting angrily and aggressively and assaulting the applicant, forcing him out of the bedroom. Counsel submitted that SM’s conduct in the footage is inconsistent with what she told the jury; that is, that she was physically, sexually and emotionally dominated by the applicant, and that she had to submit to him out of fear of being punished by way of rape.

Other alleged inconsistencies and inadequacies in the evidence

Among other things, counsel for the applicant submitted that SM gave evidence that when she made the allegations relating to the intervention order proceedings, including providing particulars, she did not have access to the emails or messages provided by her to police and ultimately tendered at the trial. That was shown to be inaccurate, however, when she was confronted with a second set of further and better particulars she had prepared which contained an index of documents to be relied on, including the emails. Further, within the particulars reference was made to messages, including those subsequently tendered during the trial.
Further, SM maintained on a number of occasions in the trial that consensual anal sex was not part of her married life with the applicant, and that anal sex was used as a punishment. Contemporaneous messages between SM and the applicant, however, showed this to be incorrect.

The respondent’s submissions

Counsel for the respondent submitted that it must be assumed that the jury assessed SM’s evidence as being credible and reliable. On a reasonable assessment of the evidence, viewed as a whole, the jury could find her to be a credible witness. The availability of contemporaneous complaints and other supporting evidence buttressed her complaints and enabled the jury to satisfactorily overcome any difficulties they may have had in acting on the complainant’s evidence by itself. Accordingly, counsel submitted, the findings of guilt on charges 6, 7 and 8 (and on charge 9) were reasonably open to the jury.
The respondent’s counsel submitted that the jury could accept SM’s explanation for delay in complaining. SM gave plausible evidence that she felt ‘traumatised’, ‘ashamed’ and feared having to ‘talk about going and having sex with other men’. The fact the complainant disclosed some sexual acts to police at earlier times, but not others, was also understandable. Moreover, it was not the case that SM had not made any complaints until much later. She told Shaun Buckney about the second incident the day after it occurred, and also told Winston Langthorne about the third incident on the day after it occurred.
Counsel submitted that SM’s evidence about anal sex not forming part of their marital sex life could also rationally be understood. As SM explained, she did not consider this form of sex to be consensual but would ‘submit’ nonetheless.

Discussion and analysis

Section 276(1)(a) of the Criminal Procedure Act 2009 requires this Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
The nature of the function to be performed when applying that provision (and similar provisions in other jurisdictions) was spelled out in M.[9] In their joint judgment, Mason CJ, Deane, Dawson and Toohey JJ observed:[10]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a signiﬁcant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisﬁed beyond reasonable doubt that the accused was guilty.
[9]M v The Queen (1994) 181 CLR 487, 493 (‘M’). See also Jones v The Queen (1997) 191 CLR 439, 452 (Gaudron, McHugh and Gummow JJ); MFA v The Queen (2002) 213 CLR 606, 614–5 [25] (Gleeson CJ, Hayne and Callinan JJ), 623–4 [55]–[59] (McHugh, Gummow and Kirby JJ); R v Hillier (2007) 228 CLR 618, 629–30 [20] (Gummow, Hayne and Crennan JJ); R v Nguyen (2010) 242 CLR 491, 499–500 [33] (Hayne, Heydon, Crennan, Kiefel and Bell JJ); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); Filippou v The Queen (2015) 256 CLR 47, 54 [12] (French CJ, Bell, Keane and Nettle JJ), 75–6 [82] (Gageler J) (an appeal arising from a judge alone trial); R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ); Pell v The Queen (2020) 268 CLR 123, 145 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’); Dansie v The Queen (2022) 274 CLR 651, 659–60 [12]–[15] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (‘Dansie’); R v ZT (2025) 422 ALR 165, 167–8 [6]–[7] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) (‘ZT’).
[10]M, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ) (footnotes omitted).
In ZT, the High Court referred to the passage from M set out above and said that three aspects of M should be noted:[11]
First, although another passage of M v R refers to the advantage the jury has in ‘seeing and hearing the witnesses’, the passage above confirms that the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial. For example, in Dansie v R the advantage possessed by the trial judge as arbiter of fact was assessed as ‘slight’ because the prosecution case was circumstantial, consisting mostly of transcripts of unchallenged testimony, and the appellant did not give evidence.
Second, in applying M v R the appellate court is required to give ‘full allowance’ to the advantages of the jury in seeing and hearing the evidence when assessing whether those advantages are capable of resolving any doubt the appellate court holds about the appellant’s guilt. Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.
Third, M v R requires that the appellate court undertake an ‘independent assessment’ of the sufficiency and quality of the ‘whole of the evidence’. However, that assessment is undertaken in a context in which an appeal is as much of an adversarial process as the criminal trial from which the appeal is brought and in which it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties’ respective cases at the trial.
[11]ZT, 168–9 [8]–[11] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) (footnotes omitted).
To succeed in this Court, the applicant must demonstrate that it was not reasonably open to the jury to be satisfied of his guilt beyond reasonable doubt.[12] Since SM’s evidence was crucial to conviction, the applicant will be incapable of doing so unless he is able to demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt as to the credibility and reliability of SM’s evidence with respect to the acts in the second and third incidents said to constitute the alleged offending. Given that the jury’s assessment of SM’s credibility depended upon their evaluation of her when she gave evidence, this Court must proceed on the assumption that the jury assessed her as being credible and reliable.[13] To the extent that the jury’s assessment of SM’s credibility was dependent on an evaluation of her evidence in the course of the trial, this Court should not seek to duplicate that function.[14] For this Court to be satisfied that, notwithstanding the jury’s assessment of SM’s credibility, the jury acting reasonably ought nonetheless have entertained a reasonable doubt as to the applicant’s guilt, such satisfaction could only be established by inconsistencies, discrepancies, or other inadequacies in SM’s evidence, or in the light of other evidence in the case.[15]
[12]M, 493; Pell, 146–7 [42]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Dansie, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
[13]Pell, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[14]Ibid 144–5 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[15]Ibid 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

It is clear that the jury were not prepared to accept SM’s evidence of alleged sexual offending — to the criminal standard — as credible and reliable on critical issues absent supporting evidence. Indeed, it is clear that the jury found the applicant guilty only on those charges upon which SM’s credibility was supported by other evidence — in particular, by a contemporaneous complaint.
Thus, in relation to the first incident, during which SM alleged the applicant urinated on her (charge 1); forced her to perform fellatio to the point of vomiting (charge 2); squeezed her breasts (charge 3); penetrated her anus with his finger (charge 4); and penetrated her anus with his penis (charge 5); the jury found the applicant not guilty in circumstances in which SM’s evidence was unsupported by other evidence.
Similarly, in relation to the fourth incident, in which SM said that the applicant twice penetrated her vagina with his penis (charges 10 and 12); and penetrated her anus with his penis (charge 11); the jury found the applicant not guilty of the charges of sexual offending in circumstances in which SM’s evidence was not supported by any contemporaneous complaint and received only limited support from the complaint to Ms White on 25 April 2016. Ms White said that SM complained that the applicant had anally raped her, but gave no evidence that SM claimed that the applicant had twice penetrated her vagina.
Conversely, SM’s evidence in relation to the second incident, involving forced penile-oral sex (charge 6) and penile-anal penetration (charge 7), was supported by the contemporaneous complaint made to Mr Buckney; and her evidence in relation to the third incident, involving penile-vaginal penetration (charge 8), was supported by the contemporaneous complaint made to Mr Langthorne and (perhaps to a limited extent) the subsequent complaint to Ms White.
In her charge, the trial judge directed the jury that they could use the complaint evidence in two ways. Among other things, she told the jury:
It is for you to determine whether [SM] made the alleged complaint and if you do, you can use it in two ways. First, you can use the content of her complaint as evidence in the case. For example, you can use her statement where she told Mr Buckney for example, soon after she returned from Queensland, ‘He made me vomit, he arse-fucked me and I was punished’. You can use that as evidence to support the evidence that she gave in court. So, it describes the relevant asserted fact as part of the trial.
When considering this evidence, it is important to remember that just because a person says something on more than one occasion, that does not mean that what she says is truthful or accurate. A false or inaccurate statement does not become true and accurate by virtue of being repeated. Secondly, you can use her complaint to assess her credibility. The fact that [SM] made the complaints, and the content of those complaints may show that her account of the events in question has been consistent, or it may not.
In relation to her complaint to Shaun Buckney, relevant to charges 6 and 7, SM gave the following evidence:
[PROSECUTOR] After that did you continue to have contact with Shaun?---I did. I actually talked to him about what happened that night because I’d said to him before I left I was scared about going home.
First of all the following day did you – how did you communicate with Shaun? What platform did you use and what account?---I used Facebook, but I made a second account under a false name because [the applicant] had access to my Facebook and he could read my messages.
Do you recall the - - -?---I think.
Sorry, do you recall the name of that false account or the - - -?---Oh, I think it was - - -
When you say false account, the account under a different name?---I think it was just Samantha (indistinct). I don’t know, it was some name I made up.
Did you communicate with Shaun using that account?---Yes, I did.
Apart from communicating with Shaun on that account, did you also continue to have phone calls with him or communicate with him in any other way?---Yes. Yes.
What was [the applicant’s] attitude to you having future contact with Shaun?---He – like, he was not happy about it. He was – like, he was furious the whole weekend. He wasn’t happy about the video that we – that he got or that he saw because apparently it was too nice. And, um, he said that that didn’t qualify. It didn’t meet the – you know, I didn’t – that didn’t qualify as me finding someone because it just – it wasn’t suitable. It wasn’t what he wanted.
You said before that you told Shaun what happened, what [the applicant] did to you, the night you returned. First of all, do you recall how you told him, whether it was now via some messenger service or a phone call? What was – how was it communicated? Do you remember or not?---I don’t honestly – I – I’m pretty sure it was via that, um, fake Facebook, um, Messenger. Um, but I – I honestly – I – I just remember telling him.
Do you recall what you told him?---That he’d made me vomit and that he’d arse fucked me, that I was punished.
That SM had made a complaint to him was supported by Shaun Buckney’s evidence. His evidence included the following:
[PROSECUTOR] Now, after [SM] returned to Victoria, though, did you have a conversation with her about what happened to her when she returned to Victoria?---Yes I did.
First of all, do you call whether that conversation was telephone call or Facebook or under the alias or you can’t remember?---It was – my, my belief, as I recall it, is that it was initiated in a Facebook message from the Samantha Ann Bromley account, and then at some point after that it then went into a telephone conversation. Um - - -
And what - - -?--- - - - yeah. Sorry.
Sorry. And what did she tell you happened?---Ah, it was basically that when she returned to Victoria and, I’m assuming, [the applicant] picked her up from the airport and they returned to their residential home, that at some point [the applicant] physically abused her, verbally abused her, raped her, sodomised her and forced her to perform oral sex on him until the point that she vomited two or three times – I can’t remember the exact amount of times that she mentioned.
In our view, it clearly was open to the jury to regard Mr Buckney’s evidence as supporting SM’s credibility, and as a result conclude that SM’s account in relation to the events founding charges 6 and 7 was both credible and reliable. SM said she communicated with Mr Buckney the day after the relevant events, and told him that she had been ‘arse fucked’, punished and made to vomit. That version of events was in effect supported by Mr Buckney, who said that SM told him that the applicant ‘physically abused her, verbally abused her, raped her, sodomised her and forced her to perform oral sex on him until the point that she vomited’.
Not only was SM’s complaint to Mr Buckney contemporaneous, but it was made privately to someone with whom SM had an intimate and trusting relationship. In those circumstances, it would have been open to the jury to conclude that SM had no apparent motive to lie or exaggerate.
So far as charge 8 was concerned, it was also open to the jury to conclude that SM’s credibility was buttressed by a complaint that she made to Winston Langthorne in an exchange that she had with him on 2 May 2015. During the exchange, at 11:19 am, SM wrote:[16]
… I had had one more drink than I usually would. I got a phone call from a friend who had broken down about 17 km from our house. I couldn’t go get her I felt bad. Then I was lamenting that I shouldn’t have had that last drink, that I actually don’t like not being able to drive if I have to. I was a “retard” for feeling bad. I was a “fucktard” for thinking I shouldn’t get drunk. I stormed off to bed after telling him he had 0 chance of getting anything that night (Because “you’re going to suck my cock later, just letting you know”). He followed me, still telling what an idiot I was, how stupid I am to let not helping someone get to me. That trying to be a “hero” to everyone and help everyone was ridiculous, that people laughed about me behind my back because they knew I was a schmuck who would just do things and they wouldn’t have to. I was getting ready for bed, and I was naked, and because I was getting angry at being called a fucktard for not wanting to get drunk, and even more angry because he was attacking part of what makes me, me, I like helping people, he decided to pull out his phone and film me. I saw red. I lost it. I was drunk, naked, feeling angry but vulnerable too and I was thinking “I’ve never filmed him on any of his drunken rants. Never goaded or patronised him while he was carrying on like a tool, and the first time I do, he is not only provoking, but he’s videoing???” I tried to shut the bedroom door. He stood in the way filming. I apparently picked up the box (I don’t recall that at all) and hit him on the shoulder. I just wanted him to stop filming, he kept moving the phone out of reach saying “can’t wait to show people this” I went to bed. Then still filming he pulled the covers back off me and threw the jewellery box onto the bed near my head saying “see, I’m glad I’ve got that on tape, you just hit me with this” I threw it across the room. I must have hit myself in the face with it as I did, I was so angry, as I got a cut above my eye.
He said he was going to leave, take the kids. I told him if he woke them up and put them in the car I’d call the police, he’d get done for drink driving and lose his job.
He left, I don’t know where. He was texting. Then he came back. I pretended to be passed out and as he fucked me, I listened to a tirade of how I’m a nasty vindictive violent person and he knows I’m going to tell people he hit me, and I’ll likely go to the cops and tell them he raped me and he has sure fallen for that trap.
I shouldn’t have hit him. I shouldn’t have got drunk. And I hate the “provocation” defence, as everyone is responsible for their actions.
I don’t want to ever put myself in that position again.
I will never drink more than 1, not with him. Especially when he is drunk (which he was too).
[16]Emphasis added.
As we have said, it was open to the jury to conclude that SM’s contemporaneous written account of the third incident supported her credibility, and to accept her evidence on charge 8 as being credible and reliable. The jury may well have concluded that there was a marked level of consistency in detail between her evidence and what SM told Mr Langthorne in writing. Furthermore, the jury may well have considered that the fact that Mr Langthorne was someone in whom SM apparently was prepared to confide added cogency to the complaint that she made to him.
In our view, the jury may also have considered that some further — albeit limited — support for the credibility of SM’s evidence with respect to the third incident was provided by Ms White’s evidence. It will be remembered in that regard that, on Anzac Day 2016, SM complained to Ms White that the applicant had filmed her and then raped her vaginally while she pretended to be asleep (charge 8), so much being consistent with her complaint to Mr Langthorne. Although Ms White also said that SM claimed that she had been anally raped — a claim that was not repeated in SM’s evidence — we consider the jury may still have concluded that what SM told Ms White on Anzac Day provided some support for her credibility. We note in that regard that the trial judge gave the following directions to the jury:[17]
Now, there has been no dispute between the parties that the content of [SM’s] statements had expanded throughout the time, and that there are differences in accounts or complaints about what had happened so, in effect, the details of her allegations have changed over time.
You may think that this shows that there have been differences in what she has said on different occasions. For this purpose, a difference can be a gap in her account, an inconsistency in her account or a difference between one account and another account that is given.
Now, you may use a difference in [SM’s] account when you are assessing her credibility and reliability. When you are assessing the evidence, bear in mind that experience shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Trauma may affect people differently including by affecting how they recall events.
It is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times to different people or in different contexts and, both truthful and untruthful accounts of a sexual offence may contain differences.
It is up to you to decide whether or not the differences in [SM’s] account are important when assessing her credibility and reliability. It is up to you to decide whether you believe all, some or none of her evidence.[18]
[17]Emphasis added.
[18]See Jury Directions Act 2015, s 54D(2).
Acknowledging Ms White’s evidence that, during their Anzac Day conversation, SM claimed that the applicant had also attempted to anally penetrate her before raping her vaginally (relative to charge 8), and that SM gave no evidence of any attempted anal penetration in the course of that incident, the significance of that apparent discrepancy must be viewed in the context of the very detailed and largely consistent contemporaneous complaint made to Mr Langthorne, and the judge’s directions to the jury as to how they might approach any discrepancies in SM’s various accounts.
In concluding that the complaint to Mr Langthorne was capable of supporting SM’s credibility, we do not ignore the criticism advanced by the applicant’s counsel based on the fact that Mr Langthorne was not called to give evidence. And we note that the judge directed the jury that if they concluded that the prosecution did not have a satisfactory reason for failing to call Mr Langthorne, then they ‘may conclude that his evidence would not have helped the prosecution’. In our view, however, the failure to call Mr Langthorne does not diminish the strength of SM’s complaint to him. The written exchange of messages speaks for itself.
To risk repetition, the jury acquitted the applicant on those charges of sexual offending on which SM’s credibility was not supported, but convicted him on those charges upon which SM’s credibility was buttressed by evidence of complaint. It therefore appears to be plain that the jury considered the complaint evidence to be decisive in their evaluation of SM’s credibility. That was a course that was open to them. As a result, we are unable to conclude that the jury’s verdicts of guilty on charges 6, 7 and 8 are unreasonable or cannot be supported having regard to the evidence.
The application for leave to appeal against conviction must be refused.
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[2025] VSCA 216

11 September 2025