Seccull v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0012

JON ROBERT SECCULL	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST AP, NIALL JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2022
DATE OF JUDGMENT:	30 September 2022
DATE OF REASONS:	14 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 219
JUDGMENT APPEALED FROM:	DPP v Seccull (Unreported, County Court of Victoria, 11 June 2021, Judge Gucciardo) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Rape and associated charges – Distress – Judge misdirected jury that evidence of complainant’s distress could be used as supporting evidence – Judge failed to give direction as to weight – Application for leave to appeal granted – Appeal allowed – New trial ordered – Evidence Act 2008 s 137; s 56 – Paull v The Queen [2021] VSCA 339; R v Flannery [1969] VR 586; R v Sailor [1994] 2 Qd R 342; R v Meyer [2007] VSCA 115 considered.

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Counsel
Applicant:		Mr P Holdenson KC with Mr J O’Connor
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP:

Introduction

On 11 June 2021, a jury empanelled in the County Court to try the applicant found him guilty of nine charges of rape,[1] two charges of common assault[2] and one charge of making a threat to inflict serious injury.[3] The judge directed verdicts of acquittal on two other charges of rape,[4] and the jury acquitted the applicant on a third.[5] Ultimately, on 18 October 2021, the trial judge sentenced the applicant to 15 years’ imprisonment, and fixed a non-parole period of 10 years and six months.[6]
[1]Charges 4, 6 to 11, and 13 to 15, in breach of s 38(1) of the Crimes Act 1958 (as amended by the Crimes Amendment (Rape) Act 2007).
[2]Charges 3 and 5, contrary to common law.
[3]Charge 12, in breach of s 21 of the Crimes Act 1958.
[4]Charges 1 and 9.
[5]Charge 2.
[6]DPP v Seccull [2021] VCC 1558.
The applicant sought leave to appeal against his conviction on five grounds:
1. A substantial miscarriage of justice occurred due to:
(a) the excessive interference or involvement by the learned trial judge in the questioning of witnesses; and
(b)the apparent identification by the learned trial judge with the prosecution.
2. A substantial miscarriage of justice occurred due to the admission of ‘other misconduct evidence’ which:
(a) pre-dated the first charged act by approximately six to eight years; and
(b) post-dated the charged acts.
3. A substantial miscarriage of justice occurred as the learned trial judge’s directions to the jury concerning the use of ‘other misconduct evidence’ did not adequately protect against the risk that the jury might engage in tendency reasoning.
4. A substantial miscarriage of justice occurred as a result of the learned trial judge directing the jury that they could use evidence of the complainant’s distress as indirect evidence supporting the prosecution case that she did not consent to the applicant’s conduct.
5. A substantial miscarriage of justice occurred due to an aggregate of errors.
At the conclusion of oral argument in this Court on 30 September 2022, the Court was unanimously of the view that ground 4 had to succeed. The Court accordingly made orders granting leave to appeal against conviction; allowing the appeal; setting aside the convictions; and ordering a new trial. These are my reasons for joining in those orders.

The application for extension of time

The applicant needed an extension of time, since he did not file a notice of application for leave to appeal against conviction until 7 February 2022 or thereabout (nearly three months out of time).[7] By written submissions, the respondent opposed the extension.
[7]See Criminal Procedure Act 2009, s 275(1).
Given that the Court was of the view that the applicant’s trial had miscarried in a significant respect, the interests of justice clearly required the extension of time to be granted. Madafferi makes plain that the Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[8] The exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances.
[8]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

Overview

In order to appreciate the issues raised by the grounds of appeal, it is necessary to provide a brief overview of the prosecution and defence cases at trial.
‘SM’, the complainant, met the applicant in 2000. They married in 2003; had four children (one of whom died in an accident in 2011); separated in 2016; and divorced in 2019.
On the prosecution case, the applicant was, prior to the wedding, loving and caring towards the complainant. Gradually, however, the applicant became more controlling and obsessive. He controlled whom the complainant could see, and, by way of abusive oral directives, texts and emails, commanded that she stay at home.
The prosecution alleged that, over a number of years, the applicant badgered SM to engage in a ‘lifestyle’ that involved her being sent out to have sexual encounters with men – assignations usually arranged by the applicant – which were livestreamed or recorded for the applicant’s viewing. SM agreed to participate, but, as time went on, she began to feel as though she had no choice but to continue.
Further, the applicant would ‘punish’ SM when he was not happy with something that she had done, or would say that she ‘owed’ him when he allowed her to do things that she wanted to do (for example, seeing friends or going on a holiday). The applicant abused, raped and assaulted SM on a number of occasions.
On the defence case, the applicant and SM were engaged in a mutually agreed ‘open’ relationship in which she was a willing participant. SM would engage in sexual activity with other men, sometimes organised by the applicant and sometimes by her. The allegations of rape and assault made by SM were false, and were made in the context of a messy divorce and Intervention Order proceedings. In the course of their relationship, the applicant did not abuse, threaten, rape or assault the complainant.
The charges on the indictment which resulted in conviction were spread over four alleged ‘incidents’ of offending.[9] Those incidents, as described in SM’s evidence, may be briefly summarised.
[9]Strictly there were five incidents, charges 1 and 2 – allegedly committed in January 2011 – being the first in the series. Charge 1 (penile-oral rape) was the subject of a directed acquittal; and charge 2 (penile-vaginal rape) resulted in a jury verdict of acquittal.

The first incident: Charges 3, 4, 5, 6 and 7

On or about 23 April 2011, when SM arrived home, the applicant grabbed her, pushed her into the bathroom, and urinated on her while verbally abusing her (charge 3 – common assault). He then grabbed her head and pulled it down onto his penis (charge 4 – rape), and squeezed her breasts very hard (charge 5 – common assault). The applicant then licked his fingers and pushed them into the complainant’s anus (charge 6 – rape), before grabbing her head and penetrating her anus with his penis (charge 7 – rape).

The second incident: Charges 8 and 10

In February 2014, when SM returned from Queensland, the applicant grabbed her hair and pushed her head onto his penis (charge 8 – rape). He then pulled her up by her hair, pulled her towards him and penetrated her anus with his penis (charge 10 – rape).

The third incident: Charge 11

On 30 April 2015, when the complainant and the applicant had been drinking together, the applicant verbally abused the complainant and she went to bed. She pretended to be asleep while the applicant, who was insulting her, grabbed her hips, ripped her underwear off and inserted his penis into her vagina (charge 11 – rape).

The fourth incident: Charges 12, 13, 14 and 15

Later that same year, 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. He then ejected the bullet and threw it at the complainant, telling her that she was ‘not worth the cost of this bullet’. The applicant then stepped towards the complainant saying that he was going to ‘smash [her] fucking head in’ and ‘put [her] into [the] fucking ICU’ (charge 12 – threat to inflict serious injury). He then went over to the bed and pushed the complainant into the middle of it. The applicant then ripped off SM’s underwear and penetrated her vagina with his penis (charge 13 – rape) before penetrating her anus with his penis (charge 14 – rape). He then once more penetrated her vagina with his penis (charge 15 – rape).

Ground 4: Distress

It is convenient to turn first to ground 4, which, in the unanimous view of the Court, had to succeed.

The judge’s directions on distress

In his charge, the judge gave apparent endorsement to the notion that the jury could use SM’s self-described distress after some of the alleged offending, and her distress when describing certain events to her friend ‘TW’, as evidence supporting her account that she did not consent to sexual penetration. These were, in my view, significant mis-directions.
The judge said:[10]
[1] If you find that [SM] was distressed soon after the alleged offence based on the evidence as a fact, then the prosecution invites you to use that fact as indirect evidence that supports its case that she did not consent to the sexual penetration. So when you look at the evidence and you look at the post-offence conduct and the effect that it is said it had on her, if you accept as a matter of fact that she was distressed, then the prosecution says the distress supports the conclusion that she suffered a traumatic event. And given the timing of the distress, the prosecution says that the traumatic event was the assault or the rapes that she suffered.
[2] The defence says none of the events described occurred, are entirely in dispute and any asserted distress is simply part of her false narrative. And you should dismiss it.
[3] You also heard evidence about her apparent distress when speaking to [TW] about the events that she described involving the accused. If you find that [SM] when she made the complaint to [TW] about the alleged offences was distressed, the prosecution invites you to use this as indirect evidence to support the complainant’s account that she did not consent to the penetration or any other offences committed allegedly upon her by the accused. In other words, the prosecution says that the distress supports the conclusion that what she was remembering and recounting was a traumatic event. And given the circumstances the prosecution say that traumatic event was the offending upon her.
[4] Again, the defence says she used histrionics in her own story, both at the time of the complaint and here in court. That issue as to distress touches upon inferential reasoning and I will come to that in a moment. It is very important in this trial and it is important that you understand how that type of reasoning can be used by you. It might sound like a difficult concept but it is in fact again what we do every day. I will explain it to you in a moment.
[10]Paragraph numbering and emphasis added.
Before proceeding, I pause to note that directions of the kind contained in the second and third sentences of the third paragraph extracted immediately above were specifically disapproved of in Paull.[11]
[11]Paull v The Queen [2021] VSCA 339, [49] (Priest, Kaye and Niall JJA) (‘Paull’).

TW’s evidence

TW, a psychologist, met SM at university, and had known her for 20 years or more. She gave evidence that SM had, whilst on a trip to the Northern Territory, sent her a text message saying that she had given the applicant ‘an ultimatum to stop drinking and to stop abusing her’. She did not then disclose the nature of the abuse. Later, however, in October 2015, SM complained to TW of ‘the nature of some of the abuse’, although ‘the disclosures came quite sporadically over the course of about a six month period’. TW said that, at a lunch with SM on 29 October 2015, SM disclosed the applicant’s ‘physical, emotional, financial abuse and coercive control’. When doing so the complainant ‘was extremely upset …, varying between being very angry and quite devastated, as in sad and feeling very depressed’. She ‘seemed to be very overwhelmed by her emotions’ and seemed to be ‘under a great deal of stress’. TW gave evidence that, on 25 April 2016, SM told her that the applicant ‘had also been very sexually violent towards her during the course of their marriage’. On another occasion, TW said, the complainant described an occasion when the applicant had urinated on her, and another when he had raped her.

The applicant’s submissions

In oral submissions, senior counsel for the applicant submitted that the supposed evidence of distress observed by TW was inadmissible, since it was not open to infer any causal connection between any distress observed by TW and any offending conduct. Any ‘upset’ that TW witnessed was not referable to any charged conduct.
Counsel for the applicant pointed out that the evidence of the complainant’s distress at the time of making the first complaint to TW on 29 October 2015 post-dated the last charged act by approximately six weeks, and charges 1 to 7 by more than four years. Furthermore, any complaint made on that occasion was in very general terms, and the accompanying distress therefore was not referable to any charged act. And significantly, other, more detailed complaints subsequently made by SM to TW were not accompanied by evidence of distress on the complainant’s part. In those circumstances, counsel submitted, it was not reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offences.[12] Such evidence as there was of the complainant’s distress described in TW’s evidence was not ‘observed in circumstances sufficiently connected with’ any clearly identified charged act.[13]
[12]Ibid [40].
[13]Ibid [42].
Further, counsel for the applicant submitted that the directions extracted above[14] wrongly permitted the jury to use the complainant’s own evidence of her distress at the time of the alleged offending as evidence supporting her account. Contrary to those directions, counsel submitted, SM’s evidence was not in fact capable of providing independent support for her evidence or her credibility.[15]
[14]At [19].
[15]Counsel cited Paull, [44]–[46], quoting R v Meyer [2007] VSCA 115, [8]–[9] (Nettle JA) (‘Meyer’).
Additionally, counsel for the applicant submitted that, insofar as the directions invited the jury to use evidence of the complainant’s distress when speaking to TW, that evidence also was not independent of the complainant. The fact that the evidence is of distress at the time of making a complaint does not ‘render it independent evidence supporting [the complainant’s] testimony’.[16]
[16]Paull, [46].
Finally, counsel submitted that, even if the evidence of distress could be considered to be admissible, the judge’s directions were flawed in that he failed to give any direction or warning that the evidence carried little weight.[17]
[17]Counsel cited R v Brdarovski (2006) 166 A Crim R 366, 379 [42] (Nettle JA) (‘Brdarovski”).

The respondent’s submissions

Initially, in written submissions, the respondent’s counsel contended that TW’s evidence of the complainant’s distress was circumstantial evidence that independently supported the complainant’s account. In oral submissions, however, counsel fairly conceded, first, that TW’s evidence could not properly be viewed as distress evidence independently supporting SM’s account; and, secondly, that the judge’s directions were, in any event, deficient. Nonetheless, counsel for the respondent maintained that no substantial miscarriage of justice had resulted.
Counsel for the respondent drew attention to the fact that the trial judge had raised with trial counsel his intention to direct the jury regarding distress, but no objection was made. Thereafter, the trial judge gave the jury the ‘standard direction’ (albeit he included the two sentences that were criticised in Paull),[18] but defence counsel took no exception. Counsel submitted that the prosecutor did not rely upon distress in his final address, and the fact that it assumed no significance in the trial is evidenced by the failure of defence counsel to object or take exception.
[18]Ibid [49].

Discussion

As I have indicated, I consider that the judge misdirected the jury on distress. Indeed, although ground 4 did not raise the issue distinctly, I regard such evidence as there was of ‘distress’ to have been inadmissible.
The distressed condition of an alleged victim of sexual offending may be admissible as supporting evidence if it is reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence. Such evidence has, however, always been received with caution. Thus, King CJ observed in Waye:[19]
In order to treat such manifestations [of distress] as capable in law of amounting to corroboration, it is necessary to be able to exclude, on any reasonable view of the evidence, the possibility that they are concomitants of the relation of a fabricated story or of an account which has its only basis in a disordered imagination.
[19]R v Waye (1984) 14 A Crim R 391, 393.
More recently, in Paull, the Court said:[20]
Distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant’s account. To be admissible, however, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence.[21] Even when admitted, evidence of distress generally will carry little weight. Thus, in Munro, Nettle JA said:[22]
In R v Flannery[23] it was held that in determining whether evidence of the distressed condition of a complainant is capable of amounting to corroboration, regard must be had to such facts as the age of the complainant, the time interval between the alleged assault and when she was observed in the distressed condition. If, having regard to such factors, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. Except in special circumstances, however, evidence of distressed condition will carry little weight and the court said that juries should be so warned by the trial judge in the course of the judge’s charge.
[20]Paull, [40].
[21]R v Flannery [1969] VR 586, 591 (Winneke CJ, Pape and Starke JJ); R v Rogers [2008] VSCA 125, [18]–[20] (Nettle JA); Flora v The Queen (2013) 233 A Crim R 320, 333 [69] (Redlich, Weinberg and Coghlan JJA).
[22]R v Munro [2005] VSCA 260, [49] (‘Munro’) (citation as in original).
[23][1969] VR 586 at 591.
As was made clear in Paull, evidence of the distressed condition of a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant’s account. But to be admissible, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence. The Court observed:[24]
When it is alleged that a complainant has been subjected to an incident which ordinarily would result in emotional distress, evidence of such distress, observed in circumstances sufficiently connected with the incident, can logically support the complainant’s account of it. The logical force of such evidence resides in the relevant connection between the alleged incident and the subsequently observed distress.
[24]Paull, [42].

The principles that govern evidence of distress can be traced back to Redpath,[25] which is the first reported case in modern times in which an English appellate court authoritatively recognised that evidence of the distressed condition of a complainant in a sexual case could be received as corroborative evidence.[26] At the time that Redpath was decided, of course, the common law required criminal juries in sexual offence cases to look for corroboration – that is, independent supporting evidence – before convicting.[27] And one of the important rules governing corroboration was that a complainant could not corroborate herself (or himself).
[25]R v Redpath (1962) 46 Cr App Rep 319 (Lord Parker CJ, Winn and Brabin JJ) (‘Redpath’).
[26]In giving the judgment of the Court, Lord Parker CJ observed in Redpath (at 322):
The court would only add that there appears to be no authority on evidence of distressed condition in such circumstances except in the case of Zielinski (1950) 34 Cr App R 193. It is to be observed that in that case, though the point may not have been fully argued, that very experienced judge, Byrne J, in giving the judgment of the court stated without any doubt that the evidence given by the son of an old lady who claimed to have been assaulted as to her condition — that she seemed frightened, shocked and ashamed — was clearly evidence amounting to corroboration.
[27]See now Evidence Act 2008, ss 164(4) and (6).
Australian courts were quick to adopt Redpath (albeit not without some expressed reservations). In its wake, criminal courts received evidence of the distressed condition of complainants as corroboration, but only in the kind of ‘special circumstances such as existed in Redpath’s Case’.[28]
[28]R v Flannery [1969] VR 586, 591 (‘Flannery’). See also R v Schlaefer (1984) 37 SASR 207, 217 (King CJ).
It is important to understand the ‘special circumstances’ that existed in Redpath. They were that an independent bystander saw a seven-year-old girl in an extremely distressed condition within a few seconds after an alleged indecent assault. The little girl said that she had been playing on the moor with two friends when a man (whom she identified as the appellant) pulled her to the ground and indecently assaulted her. A bystander standing at the edge of the moor saw the appellant walk towards a little girl and later return and drive off. No sooner had the appellant driven off than the little girl emerged from the moor in a very distressed condition. According to the bystander’s evidence, the child was terribly white, her eyes were very round, she appeared to be on the brink of tears, and she then burst into tears.
Following Redpath, observed distress was permitted to be adduced as independent supporting evidence, but only if it was closely connected in time and circumstances to the alleged offence. As I have indicated, however, Redpath was not embraced universally and without reservation. Indeed, Bray CJ was moved to lament in Byczko (No 2):[29]
The vicissitudes of the status of distress on the part of the prosecutrix, as potentially corroborative of her account of an alleged sexual offence committed upon her, would make an instructive footnote to legal history. It is an example of a doctrine comparatively recently introduced and speedily repented, or at least substantially qualified.
[29]R v Byczko (No 2) (1977) 17 SASR 460, 462.
Bray CJ went on to refer to the warning in Redpath[30] – that ‘the jury should be told that they should attach little, if any, weight’ to evidence of distress – and said:
Despite this warning it apparently became common in England, and has been not unknown here, for prosecutors to urge, and sometimes for Judges to direct, that distress after the act is potentially corroborative. Courts of appeal in England and in Australia have become disturbed by this and it has been frequently said that the jury should be warned that except in special circumstances little weight should be given to such evidence …
[30]Redpath, 321–2.
The need for a close temporal connection between the observed distress and the alleged sexual offending was highlighted in a number of cases. Thus, in Sailor,[31] it was emphasised that if a stage in time was reached where, without resorting to the testimony of the complainant, it was impossible to link causally her observed distress with the incident of rape she alleged, evidence of that distress ceased to be independent evidence of its cause and to be capable of corroborating the complainant’s testimony that she was raped. In Sailor, distress observed a little over eight hours after the alleged offending was held not to qualify as corroboration. In the seminal Victorian case of Flannery, the Court held that evidence of the complainant’s distressed condition observed about an hour or so after the alleged incident ought not to have been admitted as corroborative. And in Moana, the New Zealand Court of Appeal said that a period of less than an hour was ‘borderline’, observing:[32]
It is of course well established that before evidence can be regarded as corroborative of the complaints of a woman in such a case as this it must be independent testimony. So that when a question arises as to whether the evidence of a complainant found in a distressed condition might to some extent be corroborated by that condition the real question is whether or not it can be said that the condition itself was involuntary, uncontrived and so independent testimony relating to the statements or allegations that she has made. It has been said often enough too that in such cases the time element is all-important. If a complainant is found in a distressed condition in point of time very close to the attack about which she complains, that is one situation. But the longer the interval the more cautions one needs to be in attaching importance to evidence of this kind. Considerations of this sort caused us to say in the case of R v Cain (judgment 1 December 1977):
When a question arises as to whether the appearance and emotional state of a complainant in a sexual case may be regarded as capable of corroborating her evidence we think it important to keep in mind that the facts in Redpath (1962) 46 Cr App R 319 were exceptional. In the subsequent case of Knight (1966) 50 Cr App R 122 Lord Parker CJ referred to the earlier decision he had given in Redpath and remarked that there he had ‘endeavoured to stress that the distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence’. There is always the possibility that an appearance of distress has arisen from a cause which could in no way be regarded as supporting the allegation of the complainant. Where, as here, a period of time has elapsed it is most necessary for a jury to understand that they must guard against attaching undue weight to evidence of distress: that it could only be regarded as corroborative if they were completely satisfied that there had been no possibility of such a cause giving rise to the condition; and that the evidence was entirely unequivocal.
In that case, by reason of the time interval, we were of the opinion that the distressed condition of the girl complainant could not safely be regarded as corroborative.
In the present case a period of nearly an hour passed by before independent witnesses were able to observe the distressed condition of the complainant. Taking that fact into account and the circumstances of the case generally we are satisfied that at best this was a borderline example of distress being capable of corroborating complaints of a sexual assault. …
[31]R v Sailor [1994] 2 Qd R 342, 344–5 (‘Sailor’).
[32]R v Moana [1979] 1 NZLR 181, 184–5 (Woodhouse, Cooke and Richardson JJ) (emphasis added).
In the sixty years since Redpath, appellate courts repeatedly have insisted that, in order for the distressed condition of a complainant in a sexual case to be admissible as supporting evidence, there must be a close temporal connection between the alleged attack and the observed distress. Distress observed days or weeks (let alone years) afterwards could never qualify as supporting evidence. In those circumstances, TW’s evidence of what she observed of SM’s condition in October 2015 – even if it could otherwise be considered to qualify as evidence of ‘distress’ related to sexual offending – simply did not meet the threshold of admissibility. It was far too remote in time and circumstance to provide independent support for SM’s evidence that she was raped (or assaulted). There was thus no occasion for the judge to leave the evidence to the jury as independent supporting evidence.
Moreover, insofar as SM’s own evidence may have related to distress that she allegedly experienced – the judge’s directions proceed on the basis that there was such evidence – there was no justification for the judge leaving that evidence to the jury as independent support for her testimony. Therefore, to the extent that the judge’s directions in the present case would have been interpreted by the jury as meaning that evidence of distress emanating from the complainant might support her evidence of non-consent, they plainly were wrong. So much is clear from the observations in Meyer, a case of rape and indecent assault in which the trial judge directed the jury that the complainant’s distress was independent support for her evidence that she was raped and indecently assaulted:[33]
The error is obvious. It is rudimentary that a complainant’s testimony is incapable of constituting independent evidence in support of her own allegations.[34] As Barton J put it in Ridley v Whipp,[35] the notion that a complainant is capable of corroborating herself by her own evidence –
‘... reminds one of the familiar simile of a man trying to lift himself off the ground by his bootstraps. If one part of a person’s evidence is relied on for corroboration of the remainder, the answer instantly arises that the part relied on is as much under the original reservation as the part sought to be corroborated.’
[33]R v Meyer [2007] VSCA 115, [9] (Nettle JA, Vincent and Redlich JJA agreeing) (‘Meyer’).
[34]R v Christie [1914] AC 545 at 557; R v Whitehead [1929] 1 KB 99 at 102; Eade v The King (1924) 34 CLR 154 at 157; Heydon, Cross on Evidence, Aust. Ed. at [15185].
[35](1916) 22 CLR 381 at 389.
In a like vein, McPherson JA had observed in Sailor:[36]
To constitute corroboration there must be independent evidence that confirms the testimony of the complainant in a material particular. Distress that is observed in a complainant after the happening of the alleged incident has been held to be capable of satisfying this requirement: see Redpath (1962) 46 Cr App R 319; R v Flannery [1969] VR 586, 590. These and some other reported decisions suggest it is a state or condition to which ordinarily little weight should be allowed as corroboration. The need for caution is sometimes said to lie in the danger that distress may be readily feigned: cf. R v Knight [1966] 1 WLR 230, 233; or because it is ‘equivocal’, which in this context seems to mean that it may be due to any one or more of a variety of causes other than the incident alleged. See R v Berrill [1982] Qd R 508, 527. It would ordinarily be for the jury to decide matters like these; but there is a question of law at the threshold, which is whether the inference can be drawn that the distress is causally related to the incident: R v Flannery [1969] VR 586, 591. If on the evidence the apparent connection between the two is at most tenuous and remote, then evidence of distress should not be submitted to the jury as a circumstance capable of affording corroboration: R v Roissetter [1984] 1 Qd R 477, 481–482.
[36]Sailor, 344–5.
As I have indicated, I consider TW’s evidence concerning the complainant’s state of upset and stress at lunch on 29 October 2015 when recounting the applicant’s alleged ‘physical, emotional, financial abuse and coercive control’ to be far too removed from the last alleged incident of rape to be capable of lending support to SM’s evidence. In my view, the evidence was, to use the language in Sailor, far too ‘tenuous and remote’ to permit the conclusion that there was a causal connection between SM’s distressed condition – assuming for the sake of argument that the evidence amounted to evidence of distress – and any alleged sexual offence. Adequate consideration of the evidence as ‘a question of law at the threshold’ should have led to the conclusion that ‘evidence of distress should not be submitted to the jury as a circumstance capable of affording [independent supporting evidence]’.
At a fundamental level, evidence of distress – like all other evidence – must be relevant in order to be admissible.[37] Hence, in any given case, the putative evidence of distress must have the capacity rationally to affect the assessment of the probability of the existence of a fact in issue.[38] Where consent is in issue on a charge of rape, the evidence therefore must have the capacity to bear on the assessment of whether the alleged sexual penetration was effected without the complainant’s consent. Any probative value that distress evidence will possess must depend on its capacity rationally to go in proof of that issue. The admissibility of distress evidence proceeds on the understanding that sexual offending will ordinarily result in a complainant suffering emotional distress. In that way, independent evidence of the complainant’s distress, observed in circumstances sufficiently connected with the alleged offending, can logically support the complainant’s account of it. The physical manifestation of the complainant’s distress will be relevant only if it is capable of founding an inference that it was the result of the complainant having recently been subjected to non-consensual sexual activity. That is the central reason why the cases almost universally have insisted on there being a close temporal connection between the alleged sexual offending and the observed distress.
[37]Evidence Act 2008, s 56(1).
[38]Evidence Act 2008, s 55(1).
As was emphasised in the leading case of Flannery – and the cases it applied and many of the cases in which it has been applied – the significant factors that determine the admissibility of evidence of distress include: the time interval between the alleged assault and when the complainant was observed in distress; the complainant’s conduct and appearance in the interim; and the circumstances existing when the complainant is observed in the distressed condition. The whole point of evidence of distress is that – if it is sufficiently connected in time and circumstances of the alleged sexual offending – it may found an inference that the complainant’s observed distress was the result of the alleged offending. It is only when there is a sufficiently close temporal connection that it may be concluded that the observed distress may have been caused by the alleged sexual offending.
To risk repetition, having regard to the weeks or months that intervened between the alleged sexual offending and any supposed distress observed by TW, I consider that SM’s distress was far too removed from the alleged offending to be admissible. There was therefore no occasion for the judge to leave it to the jury as evidence which potentially supported SM’s account ‘that she did not consent to the penetration or any other offences committed allegedly upon her by the [applicant]’.
In reaching those conclusions, I am not unaware of this Court’s decision in Charles,[39] in which the Court, when failing to uphold a ground of appeal directed to distress evidence,[40] found that the complainant’s ‘distress exhibited [when making a complaint] in 2007 was reasonably capable of being viewed by the jury as causally connected to the underlying offending that allegedly took place two to three years earlier’. With great respect, however, I regard the conclusion reached in that case to be wrong. Although the Court referred to a number of relevant authorities – Paull, Flannery, Rogers,[41] Flora[42] and Munro – the Court’s ultimate conclusion is inconsistent with the proper application of the identified principles to the facts of that case. In light of the authorities, any distress exhibited by the complainant when making a complaint three years after the alleged sexual offending was simply far too remote temporally to properly have been regarded as admissible supporting evidence.
[39]Charles (a pseudonym) v The Queen [2022] VSCA 166, [89] (Emerton P, Kyrou and T Forrest JJA) (‘Charles’).
[40]The ground was:
A substantial miscarriage of justice occurred because:
(a) the prosecutor invited the jury to use the complainant’s distress at the time of her complaint to her boyfriend as support for her account regarding the offences alleged; and
(b) the trial judge directed the jury that they could use the complainant’s distress at the time of her complaint as indirect or circumstantial evidence which supported her account that she had been sexually abused.
[41]R v Rogers [2008] VSCA 125.
[42]Flora v The Queen (2013) 233 A Crim R 320.
Although this Court is not bound by its own previous decisions, it will not lightly depart from one of its own carefully considered decisions unless persuaded that the decision is plainly wrong.[43] I do not consider this Court to be bound by the result in Charles. Whilst this Court should adhere to the principles derived from the authorities cited in Charles, insofar as that decision was based on the apparent mis-application of those principles to the particular facts of that case, the Court as presently constituted cannot regard the decision as binding.[44] Indeed, as I have indicated, with due respect, I regard the conclusion reached on the relevant ground of appeal in Charles plainly to be wrong.
[43]See Nguyen v Nguyen (1990) 169 CLR 245; AVCO Financial Services Ltd v Abschinski [1994] 2 VR 659; RJE v Secretary, Department of Justice (2008) 21 VR 526; R v BDX (2008) 24 VR 288; Commissioner of State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617; DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81; Gett v Tabet (2009) 254 ALR 506; DPP Reference No 1 of 2019 [2020] VSCA 181.
[44]Compare R v Falzon (2108) 264 CLR 361, 380–1 [49].
Self-evidently, given that the evidence of distress in this case was inadmissible, there could be no occasion for the judge to direct the jury that they could use it as evidence supporting SM’s account that she did not consent to sexual penetration. Justice thereby miscarried.
As I have mentioned, counsel for the respondent submitted that, if the Court were to find that the directions regarding distress ought not have been given, the Court should nonetheless conclude that any miscarriage of justice was not ‘substantial’.[45] Among other things, counsel pointed to the fact that defence counsel did not object to the reception of the evidence or take exception to the judge’s directions.
[45]See Criminal Procedure Act 2009, ss 276(1)(b) and (c).
In my opinion, however, the convictions in the present case cannot be saved by the failures of defence counsel. The evidence of distress, and the judge’s directions as to its use, may have improperly bolstered the credibility of SM’s evidence in the eyes of the jury, in a case where her credibility was pivotal. In those circumstances, I find myself unable to conclude that, absent the judge’s wrong directions, the applicant’s conviction would have been inevitable.[46] I would adopt what Redlich JA said in Meyer (albeit that the Court was there concerned with the application of the now defunct ‘proviso’):^[47]
The direction that such evidence was independent evidence supporting the complainant’s testimony constituted a serious miscarriage which cannot be saved by the application of the proviso. The misdirection may have affected the jury’s preference for the complainant’s account. Consequently, in considering whether the proviso should be applied, this Court cannot take into account the jury’s verdict or its view as to the complainant’s credibility which is inherent in its verdict. For these and the reasons given by Nettle JA the proviso cannot be applied.
[46]Baini v The Queen (2012) 246 CLR 469, 479 [26], 481 [31]–[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[47]Meyer, [24] (citation omitted).

I would add that, if – as the respondent’s counsel submitted in this Court – the prosecution did not rely on evidence of distress, so much required the prosecutor to be astute to ensure that the judge did not give erroneous directions on the topic, thereby causing the trial to miscarry. There are two ends to the Bar table. It is regrettable that neither counsel recognised the judge’s errors and sought to correct them. The failures of defence counsel place an obstacle in the way of the appellant. But it is not one that should deny him success on this appeal. The prosecutor also had a duty to correct error. As was said in Caine:[48]
The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client’s case is put to the jury in a way which is as favourable to the client’s interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial.
[48]R v Caine (1990) 48 A Crim R 464, 475 (Crockett, McGarvie and Beach JJ).
There are two final observations I would make.
First, there is force in the contention of the applicant’s counsel that the judge’s directions on distress were deficient for the additional reason that they did not warn the jury of the weaknesses inherent in evidence of distress. As was said in Flannery, ‘evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his [or her] charge’.[49] If any direction on distress was called for, it needed to be accompanied by an appropriate warning directed to the limitations of such evidence.
[49]Flannery, 591; Brdarovski, 379 [42].
Secondly, neither defence counsel nor prosecutor at trial sought a direction on distress in accordance with s 12 of the Jury Directions Act 2015. Although the judge appears to have raised the possibility of giving a direction on distress, it is plain that neither counsel made a ‘request that the trial judge give, or not give, to the jury particular directions in respect of’ distress. (Indeed, it is not at all clear that counsel understood that the judge had proposed that he might give such a direction.) That being so, s 15 of the Act prevented the judge from giving a direction not ‘requested under section 12’ unless the provisions of s 16 were engaged. Importantly, s 16 provides that the trial judge can only give a direction if he or she ‘considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12’. The trial judge did not make a distinct finding that he considered there to be substantial and compelling reasons for giving a direction on distress. Had he given adequate consideration to that matter, he could not have concluded that there were substantial and compelling reasons for giving the direction.
In light of the forgoing, ground 4 must be upheld.

Ground 1: Judge’s interference and association with prosecution

The applicant’s submissions

Under cover of the first ground, counsel for the applicant submitted that the judge repeatedly intervened in the questioning of both SM and the applicant – the applicant gave evidence in his defence – in ways which led to a perception that the judge was ‘aligned with the prosecution in seeking to establish evidence’ of guilt;[50] and had formed a favourable impression of the complainant as a candid and credible witness, and a negative impression of the applicant as a witness. Counsel submitted that the judge’s interventions assumed significance given that the case was one of ‘oath against oath’, and the prosecution case against the applicant could only succeed if the jury accepted that SM was a credible witness.
[50]Counsel cited Cook v The Queen (2016) 260 A Crim R 454, 469 [45] (Whelan, Beach and McLeish JJA); R v Mawson [1967] VR 205, 207–8 (Winneke CJ, Adam and Barber JJ) (‘Mawson’).
Among the other parts of the record of trial relied upon, counsel for the applicant drew attention to a relatively lengthy exchange between the judge and defence counsel in the course of SM’s cross-examination, in which the trial judge accused defence counsel of ‘besmirching [the complainant] gratuitously’. Counsel also contended that, apart from this episode, the judge intervened excessively during the applicant’s evidence and assumed the role of prosecutor.[51] Finally, counsel contended that the trial judge intervened on numerous other occasions during the questioning of witnesses, some of those interventions being calculated to diminish the standing of defence counsel in the eyes of the jury, so as to create the risk that the jury might infer that the defence case was without merit.[52]
[51]Counsel cited Nwagbo v The Queen (2021) 288 A Crim R 516, 560 [102] (Priest, Niall and T Forrest JJA).
[52]Counsel cited Piccolotto v The Queen [2015] VSCA 143, [43], [46] (Redlich, Santamaria and Beach JJA).

The respondent’s submissions

Counsel for the respondent submitted that any interruptions by the trial judge in this case were justified. They could not have led to a perception the judge was aligned with the prosecution, or that he had formed a favourable impression of the complainant, and a negative impression of the applicant, as witnesses. Aside from routine matters such as objections, counsel submitted, the trial judge intervened during the complainant’s evidence in chief and re-examination in an appropriate manner. During the complainant’s cross-examination, the trial judge was required to intervene given the nature of the questioning, which – over five days – was at times offensive, humiliating, belittling or insulting.

Discussion

In Mawson[53] it was said to be
clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party’s opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage is shown by the case of R v Clewer (1953) 37 Cr App R 37. The miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of R v Bateman (1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain (1936) Cr App R 204, or again the miscarriage may result from the jury being led to believe from the judge’s intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done. That was the principle applied in a case of this kind by this Court in R v Delaney [1955] VLR 47; [1955] ALR 45.
[53]Mawson, 207.
Having read the passages complained of in their full context, I am not persuaded that the judge transgressed in the manner contended for by the applicant’s counsel. Apart from the one relatively lengthy passage in the cross-examination of the complainant in which the judge accused defence counsel of ‘besmirching’ the complainant by his questioning – it would have been better had that exchange occurred in the absence of the jury – I am unable to see that the judge’s interventions could have led the jury to believe that the judge had identified himself with the prosecution or shown himself to be convinced of the applicant’s guilt; or that the interventions could (other than in a trivial way) be said to have constituted a departure from the due and orderly processes of trial. Indeed, I consider that there is some merit in the contention that a deal of defence counsel’s questioning was repetitive, and conducted in a supercilious and insulting manner, necessitating some intervention by the judge.
Whether, in any given case, it may be concluded that a judge has interfered excessively, or has become involved in the conduct of a trial in a way that constitutes a departure from the due and orderly processes of a fair trial so as to amount to a miscarriage of justice, must very much depend on impression, gained from perusing the whole of the record of the trial. It is only when regard is had to the complete record that the judge’s interventions may be put into their proper context.
Acknowledging the difficulty of endeavouring to capture the atmosphere pervading the trial by recourse to the transcript, my distinct impression is that, such as they were, the judge’s interventions (and his conduct of the trial generally) would not have led the jury to conclude that he was aligned with the prosecution to the detriment of the defence. I consider that, to a large extent, the jury would have thought the judge’s intervention to be fair and reasonable. The jury may not have entertained similar views about the conduct of defence counsel.
Ground 1 has not been made out.

Grounds 2 and 3: Other misconduct evidence and an invitation to tendency reasoning

Although counsel argued the grounds separately, it is convenient to consider grounds 2 and 3 together.

The applicant’s submissions

With respect to ground 2, counsel for the applicant submitted that the prosecution led ‘other misconduct evidence’ that: the applicant encouraged SM to have sex with other men (or insisted that she do so); choked her on multiple occasions during sex; was verbally abusive towards her on a regular basis; and watched ‘gross’ or ‘degrading’ pornography. The prosecutor further adduced evidence on four aspects:
·first, prior to their marriage in February 2003, the applicant had ‘rough’ sex with SM, which was not about what she wanted, and that he was ‘very arrogant in trying to get [her] to have anal sex’;
·secondly, on a trip to Adelaide before September 2004, SM ‘had to give sex’ to the applicant ‘to make up for’ the fact that the applicant had agreed to go to Adelaide for the wedding of the complainant’s cousin;
·thirdly, in early October 2015, before a drive to the Northern Territory, the applicant told the complainant that he packed a ‘.223’ rifle and added ‘you know, Wolf Creek and all’,[54] which was ‘a comment made to … elicit fear’; and
·fourthly, on 4 October 2015, the applicant spoke to SM about the prospect of her having sex with ‘three farmers in a ute’ and later tried to have sex with her, yelled at her, and ‘stuck [his] fist up [her] vagina’, causing pain.
[54]Wolf Creek is an Australian horror film. Its plot involves three backpackers being taken captive and subsequently hunted by psychopathic serial killer in the Australian outback. The killer shoots more than one victim with a rifle.
Counsel submitted that the evidence was too remote to be admissible.[55] The first and second events summarised immediately above pre-dated the first charged acts by six to eight years. They were not relevant to any fact in issue. Alternatively, they were only marginally relevant, such that their probative value as context or relationship evidence was outweighed by the danger of unfair prejudice to the applicant, requiring their exclusion under s 137 of the Evidence Act 2008. The third and fourth events, counsel submitted, post-dated the final charged acts. Hence, the evidence could not explain the complainant’s state of mind at the time of those charged acts (why she might have submitted to the demands allegedly made by the applicant), or the applicant’s state of mind (why he ‘felt able to act in a particularly brazen manner’). Accordingly, if the evidence had any probative value as context or relationship evidence, its probative value was extremely slight and was clearly outweighed by the danger of unfair prejudice (including the danger that a jury would use the evidence for a tendency purpose or give it excessive weight) so as to require its exclusion under s 137 of the Evidence Act 2008.
[55]Counsel cited Benson v The Queen (2014) 46 VR 563, 570–1 [36]–[38] (Neave JA).
As to ground 3, counsel for the applicant submitted that, although the prosecution did not lead the other misconduct evidence as tendency evidence – thereby avoiding the threshold requirements in ss 97 and 102 of the Evidence Act 2008 – the judge’s directions on the evidence invited tendency reasoning,[56] in that he directed the jury that the evidence
may be relevant to the [applicant’s] intention or motive, for example, by establishing that a particular relationship existed between the parties which demonstrates the intention of or motive for the accused’s actions.
[56]Counsel cited Ritchie v The Queen [2019] VSCA 202, [123] (Kaye and Weinberg JJA, and Kidd AJA.).
The direction above was expressed broadly, counsel submitted, and was not confined to any use of the evidence as circumstantial evidence explaining why the applicant might have felt able to act in a ‘brazen’ manner towards the complainant.
In oral submissions, senior counsel for the applicant submitted that not only did the judge’s directions invite tendency reasoning, but they did not limit the use to be made of the evidence, and they invited the jury to use the evidence ‘in any way they saw fit’. Instead, the directions should have been ‘tied’ to the evidence and the issues in the case. Moreover, the judge’s repeated directions that the evidence went to the ‘true nature of the relationship’ were of a kind that had been deprecated by courts of authority.[57]
[57]Counsel cited JDK v The Queen (2009) 194 A Crim R 333, 350 [36] (McClellan CJ at CL) (‘JDK’); and SKA v The Queen [2012] NSWCCA 205, [275] (Adam J) (‘SKA’).

The respondent’s submissions

Counsel for the respondent submitted that the other misconduct evidence was introduced to explain the complainant’s acquiescence and her delay in complaining. The evidence of the applicant and complainant engaging in consensual rough sex prior to their marriage in February 2003, and the evidence of the complainant feeling as though she had to have sexual intercourse with the applicant because she had made him spend time with her family in Adelaide prior to September 2004, was relevant to placing the offending into context. To limit the context evidence to that which occurred shortly before the charged acts places the relationship in an artificial and sterile context. Counsel submitted that the evidence was clearly relevant as it demonstrates the true nature of the relationship, how the relationship evolved over the course of the marriage, the state of mind of both the applicant and complainant and the delay in complaint. The probative value of the evidence, counsel submitted, is not outweighed by the danger of unfair prejudice to the applicant. Given the volume of other, often confronting evidence in this trial, there was no real possibility the evidence of these two matters would have been used by the jury impermissibly or that the jury would have given the evidence unfair weight.
The respondent’s counsel submitted that the trip to the Northern Territory occurred within weeks of the last charged act and was at a time when the complainant had told the applicant that if things did not change she would leave him. The reference to the .223 rifle and ‘Wolf Creek’ demonstrated the true nature of the relationship despite the request by the complainant that things change between them. In fact, nothing had changed at all as the behaviour continued. Further, the incident on 4 October 2015 occurred during this same trip and was an extension of that behaviour but included the applicant inserting his fist into the complainant’s vagina. Counsel submitted that the nature of the ongoing relationship between the applicant and complainant after the conclusion of the charged acts is relevant to the context of that relationship. The probative value of the evidence is not outweighed by any danger of unfair prejudice to the applicant.
Prior to the complainant giving the relevant evidence, counsel submitted, the trial judge directed the jury in strong terms they were not to use the other misconduct evidence for any other purpose, in particular tendency reasoning. That direction was repeated in the charge. Counsel for the respondent submitted that the jury were directed more than once that the evidence was led to show the true nature of the relationship between the applicant and complainant, and they may not use the ‘other misconduct evidence’ for any other purpose. Although the respondent’s counsel conceded in the course of oral argument that the judge’s directions were not ‘tailored’ in the way they should have been, she contended that they did not constitute an invitation to tendency reasoning. Indeed, the judge in effect directed the jury not to reason in such a way. Counsel for the respondent acknowledged in argument that it would have been ‘preferable’ for the judge to ‘link his general directions to ‘specific evidence’, but no miscarriage of justice was occasioned by his failure to do so.

Discussion

It may be accepted that evidence of the four matters referred to above[58] constituted ‘other misconduct evidence’ in that the evidence purportedly was adduced by the prosecution ‘to assist the jury to understand the context in which the offence charged … is alleged to have been committed’. Some of it may also have qualified as other misconduct evidence on the basis that it was ‘evidence of other discreditable acts and omissions of [the applicant] that are not directly relevant to a fact in issue’.
[58]At [65].
By s 26 of the Jury Directions Act 2015, other misconduct evidence is defined as:
(a)coincidence evidence; or
(b)tendency evidence; or
(c)evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or
(d)evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed; …
In giving a direction – requested by defence counsel under s 12 – on other misconduct evidence, the trial judge is required by s 27(2)(a) of the Act ‘to identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose’; and by s 27(2)(c) to ‘direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused’.
I consider that there is substance in the contention that the evidence relied upon by the prosecution as other misconduct evidence was too remote to have other than marginal relevance (if any at all). It is difficult to see how the first and second aspects – the ‘rough sex’ and ‘make up sex’ – could logically provide any context to the charged conduct, given the time gap of six to eight years. And it is also difficult to see how the third and fourth aspects, which post-dated the last incident of alleged offending, could as a matter of logic have borne on the context in which the particular charged conduct took place. Although, in the circumstances of this case, it would have been difficult in the conduct of the applicant’s trial to have sanitised the evidence sufficiently so as to

exclude all contextual evidence of the applicant’s conduct that had a quality that the jury may have regarded as discreditable, I consider that the four aspects of which the applicant’s counsel made complaint were of dubious relevance as evidence of context.

Moreover, I consider that there is substance in the contention that the judge’s directions were deficient. Albeit that she submitted that the judge repeatedly instructed the jury that they could not use the other misconduct evidence for any other purpose, counsel for the respondent fairly conceded that the judge’s directions were not ‘tailored’ to the evidence and issues in the case. Thus, the respondent’s counsel in effect accepted the contention advanced by the applicant’s counsel that the directions were not ‘tied’ to the evidence and issues in the case. There is also substance in the submissions that the judge’s repeated directions that the evidence went to the ‘true nature of the relationship’ were of a kind that had been criticised by the New South Wales Court of Criminal Appeal.[59]
[59]JDK, 350 [36] (McClellan CJ at CL); SKA, [275] (Adam J).
Having found error established under the cover of grounds 2 and 3, it is, however, unnecessary to determine whether any of those errors should lead to the conclusion that there has been a substantial miscarriage of justice, given the Court’s views with respect to ground 4. Since there is to be a new trial, all of the evidence impugned under the umbrella of ground 2, and the content of any necessary directions, may be considered afresh by the judge in the new trial.

Ground 5: Aggregate of errors

In light of the Court’s conclusions on ground 4, it is unnecessary to consider ground 5.

NIALL JA

KIDD AJA:

We have had the very real advantage of studying the reasons for judgment of Priest AP. We are able to express our reasons for allowing the appeal without repeating the facts and arguments, which are fully set out in the reasons of Priest AP.

Ground 4

Ground 4 is concerned with two parcels of evidence.
The first was given by SM. It was concerned with some of the immediate physical consequences that she said that she had suffered as a result of the charged acts. In that respect in relation to charge 4 she said that as a result of the forced act of fellatio she gagged and vomited.[60] She also described crying herself to sleep after an incident,[61]

that an act of anal penetration hurt[62] and being ‘absolutely and utterly terrified’.[63]
[60]T 100
[61]T 205
[62]T 205
[63]T 206

The second piece of evidence was given by the complaint witness TW. TW said that SM’s description of the alleged abuse emerged over a number of conversations. For present purposes the relevant evidence of TW concerned a conversation she said she had with SM on 29 October 2015, which was within a few weeks of the applicant and SM returning from the Northern Territory. According to TW’s account and as outlined by Priest AP, during that conversation SM complained of the applicant’s ‘physical, emotional, … financial abuse and coercive control’.[64] When doing so, SM ‘was extremely upset … varying between being very angry and quite devastated, as in sad and feeling very depressed’.[65] She ‘seemed to be very overwhelmed by her emotions’ and seemed to be ‘under a great deal of stress’.
[64]T 546
[65]T 548
For present purposes it is important to emphasise that the complaint on 29 October 2015 did not involve sexual offending. The extensive examples of ‘physical, emotional, financial abuse and coercive control’ complained of by SM, as detailed by TW in her evidence, make this plain. TW also gave evidence that SM only made a complaint concerning sexual offending for the first time at a subsequent meeting they had together, on 25 April 2016. The complaint about sexual offending on that subsequent meeting was not accompanied by any evidence of distress.
In our opinion, ground 4 turns not so much on the admissibility of the evidence to which we have just referred but on the use to which it could be put and the directions that the judge was able to legitimately give in relation to it. As things transpired, the prosecutor did not seek to rely on the evidence, but the directions given by the judge were erroneous and invited the jury to use the evidence in an impermissible way that resulted in a substantial miscarriage of justice.
In our view, SM was entitled to describe the physical consequences that the charged acts had on her and the evidence was not irrelevant.
In relation to the evidence of TW, it is trite to observe that, when a witness is able to give admissible evidence about the contents of a conversation with another person, it will be the words spoken that will be most important, and a witness will customarily be directed to recount, as best they are able, what was said. It is commonplace, and generally unobjectionable, for the witness to also refer to matters of context such as where the conversation took place, who was present and how long the conversation took. The witness may also refer to matters that may be described as reflecting the demeanour of the other party: tone of voice, volume and cadence. It is not unusual for a witness to describe the other person as being angry, upset or amused. Generally this type of evidence does not stray into impermissible opinion evidence, although the witness may be asked to identify any physical observations on which that conclusion was based.
The purpose of this surrounding evidence is to place the conversation into context; to give the trier of fact a better understanding of the conversation as a whole. It may help the trier of fact understand what was conveyed during the conversation. Communication between people is not always confined to articulated words.
In addition to evidence of this kind, the witness may, if it be relevant, give evidence about the person’s appearance or physical state. This is evidence which may not depend on what the other person says or means to convey. To take an obvious example, a witness can say that a person was bleeding, appeared to have a wound or bruise and was demonstrating pain. From those observed facts, together with other evidence, the trier of fact may infer that the person had been attacked or assaulted.
In the context of sexual assaults, evidence that a person appeared to be in a ‘distressed condition’,[66] or exhibiting distress or upset has long been treated as capable of being used as an artefact of the assault.[67] The applicable principles were recently restated by this Court in Paull. It is a matter of reasonable expectation that a person who has been the victim of sexual assault may be distressed, sometimes extremely so, at the time of an assault. The approach to evidence of distress of this kind has been cautious but, subject to certain controls, has been capable of being treated by a jury as independent or corroborative evidence of the charged act. It has generally been accompanied by a warning to the jury as to the limitations of the evidence.[68]
[66]R v Munro [2005] VSCA 260, [49] (Nettle JA).
[67]R v Flannery [1969] VR 586, 591 (Winneke CJ, Pape and Starke JJ) (‘Flannery’); Paull v The Queen [2021] VSCA 339, [42] (Priest, Kaye and Niall JJA) (‘Paull’).
[68]Flannery [1969] VR 586, 591 (Winneke CJ, Pape and Starke JJ).
At a time when corroboration of a victim of a sexual offence was thought necessary, it was accepted that a person’s observation of the complainant in a distressed condition might support an inference that the person had been the victim of a sexual assault. In that sense, the evidence of distress was seen as supporting or corroborating the victim’s account. It was also seen as independent evidence in addition to the account of the complaint as to what had happened because the distress was seen as a natural consequence of a sexual assault. However, it was only capable to supporting the account in that independent way if the observation occurred within a very short time after the attack. Even in those circumstances, the evidence was never regarded as being particularly cogent, and carried with it significant risk of being given undue weight. It was therefore accompanied by a direction to the jury about the weight that might properly be attached to the evidence.
There are at least two underpinnings to that line of authority. First, the cases arose in a context where there was a need for independent evidence to support the word of a complainant in cases of sexual offending. The immediate after effect of an attack met that requirement as it was observable and was unlikely to be contrived or have a source apart from the alleged attack. Second, they arose in a context of an understanding of the effect of sexual offending: its trauma was immediate and often understandably distressing. The first has been abrogated and the second is not immutable.
It was in this context that evidence of what the witness observed about the condition of the complainant that was very close in time to the alleged offences was seen as capable of being viewed by the jury as both independent and corroborative and as causally connected to the underlying offending that allegedly took place. It supported the complainant’s account.

The impugned directions

The relevant portion of the judge’s charge to the jury is set out in the reasons for judgment of Priest AP at [19]. The first two paragraphs extracted relate to the evidence of SM and the final two paragraphs relate to the evidence of TW.
The directions contained therein were flawed for a number of reasons.
First, the judge wrongly invited the jury to treat SM’s own account of the consequences of the alleged incidents as independent evidence. Although the judge referred to the evidence as being ‘indirect’ and a short time later the direction was tied to what the judge told the jury about drawing inferences and inferential reasoning, the import of the direction was that the jury could use it in the same way as distress evidence as described in Paull. Inviting the jury to separate a complainant’s evidence as to what happened and as to how she felt as if they were independent of each other or to be treated differently was wrong and confusing.[69]
[69]R v Meyer [2007] VSCA 115, [9] (Nettle JA, Vincent and Redlich JJA agreeing).
Second, the judge instructed the jury that they could use TW’s account of how SM appeared in their conversation in October as indirect evidence to support the complainant’s account that she did not consent to penetration or to any of the other charged acts. That was an erroneous direction. TW’s observation of how SM appeared during that conversation could not rationally bear upon whether SM had consented to penetration and was not reasonably capable of being viewed by the jury as causally connected to the underlying offending. That was because the distress that TW said she witnessed did not occur at a time that was proximate to the offending and did not arise in the context of SM recounting sexual abuse. Having regard to those two factors, any connection between how SM appeared and sexual offending in the past would at best be conjecture or speculation. There was nothing that could reasonably connect them.
In the absence of a discernible and reasonable connection between the evidence of how SM appeared and the charged acts, it was incapable of being treated by the jury as supporting the prosecution case in the sense of constituting independent evidence on which the jury could act.
Third, the decision to give the jury a direction as to the way they could use the so called distress evidence was first raised by the judge in discussion with Counsel. The prosecution did not seek to use the evidence in that way. It is true that when it was raised by the judge neither Counsel objected to the jury being given a distress direction but it appears plain from that part of the transcript that Counsel did not engage with the question in any meaningful way and the discussion moved on to other topics and was not revisited. In the circumstances, the judge did not have the benefit of argument on the merits of giving the direction. Further, the effect of the direction was to allow the jury to use the evidence in a way that was unfavourable to the applicant and supported the prosecution case but in doing so went further than the prosecution.
Fourth, if the evidence did qualify for use as distress evidence, the jury needed to be directed to the limitations of such evidence (as Priest AP has stated). There was a requirement to instruct the jury upon how they should approach their consideration of this evidence. This required the jury to be directed that they could only act upon the evidence of observed distress in proof of the sexual offending if satisfied that they were causally linked. In this respect they had to be directed to consider factors such as the proximity of the observed distress to the sexual offending (or lack thereof), and whether there were other explanations for the presentation of her distressed condition (such as her recounting of the general domestic abuse she had suffered). None of this was done.
For these reasons, the jury were misdirected. That constituted an irregularity. In our view it amounted to a substantial miscarriage of justice. The prosecution case depended entirely on the account of SM. The directions had the potential for the jury to treat the two pieces of evidence as independently corroborating of SM’s account. It thus had real potency. In the trial there was a vast amount of ‘context’ or ‘relationship’ evidence that may have been confronting to the jury. Although in every trial it is expected that the jury will follow attentively and act in accordance with the directions given by the judge, in this trial the jury would have been especially interested in hearing from the judge as to how it could use the various parts of the evidence. The directions were, in the context of this trial, particularly important.
Further, having read the evidence we are unable to conclude that a verdict of guilt was inevitable.[70]
[70]Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59.
For these reasons, the directions were flawed in a number of respects and ground 4 must succeed. It is not necessary, in our respectful opinion, to consider whether or not Charles v The Queen[71] was correctly decided on its particular facts.
[71][2022] VSCA 166.

Ground 1

We agree with what Priest AP has written about ground 1.

Grounds 2 and 3

These grounds are concerned with the admissibility of ‘other misconduct evidence’ (ground 2) and whether the judge’s directions adequately mitigated any risk that the other misconduct evidence that was admitted would impermissibly be used by the jury as a basis for tendency reasoning (ground 3).
It is necessary at the outset to identify what evidence is sought to be covered by these grounds and how the judge dealt with it.
In his written case, the applicant focuses on some general evidence and evidence relating to four specific matters. As to the former, the applicant refers to evidence that the applicant encouraged SM to have sex with other men (or insisted that she do so); choked her on multiple occasions during sex; was verbally abusive towards her on a regular basis; and watched ‘gross’ or ‘degrading’ pornography. As to the latter, the four specific matters were:
(a)prior to their marriage in February 2003, the applicant had ‘rough’ sex with SM, which was not about what she wanted, and that he was ‘very arrogant in trying to get [her] to have anal sex’;
(b)on a trip to Adelaide before September 2004, SM ‘had to give sex’ to the applicant ‘to make up for’ the fact that the applicant had agreed to go to Adelaide for the wedding of the complainant’s cousin;
(c)in early October 2015, before a drive to the Northern Territory, the applicant told the complainant that he packed a ‘.223’ rifle and added ‘you know, Wolf Creek and all’, which was ‘a comment made to … elicit fear’; and
(d)on 4 October 2015, the applicant spoke to SM about the prospect of her having sex with ‘three farmers in a ute’ and later tried to have sex with her, yelled at her, and ‘stuck [his] fist up [her] vagina’, causing pain.
Before turning to the general evidence and the judge’s directions in respect of it, it is convenient to address the four identified matters. It was these matters that formed the focus of the argument on admissibility.
As to the third and fourth items, we are persuaded that they were irrelevant and therefore inadmissible. They post-dated the offence and they provided no meaningful context to the circumstances in which the charged acts occurred. We would uphold the applicant’s complaint as to the admissibility of this evidence.
Dealing with the first item, we note that on SM’s evidence she and the applicant had engaged in consensual anal intercourse, she had found it painful and she told the applicant that she did not wish to engage in that sexual activity. In circumstances where the only other evidence of the penetration of SM’s anus by the applicant related to charged acts, the prior history, even though it predated the charged acts was relevant at least to the issue of her consent.
As to the second item, although it was tied to a specific time frame, it was similar to the more general evidence as to the sexual practices between the applicant and SM. Its admissibility does not stand apart from the issues that attend the more general relationship evidence. In our view, subject to appropriate direction as to tendency, the evidence was admissible. This item was essentially addressed under cover of ground 4, and involved a submission that the relationship evidence invited tendency reasoning. It is to that issue that we now turn.
In his directions to the jury the judge addressed the other misconduct evidence globally. He identified the evidence as being the evidence of:
instances of rough sex, said to be demanded by the accused and given by the complainant, in circumstances when the accused was upset about something; sexual acts said to be demanded by the accused and given by the complainant to show her gratitude for different actions of the accused; the involvement of pornography in sexual activity; sexual acts involving other persons said to be at the request of the accused, and so on and so forth.[72]
[72]T 961
The judge’s directions on this aspect were general in nature and, as Senior Counsel for the respondent accepted, were not tailored to the specific facts. The judge did not highlight the four specific matters relied on by the applicant referred to above.
The judge directed the jury as to the uses to which that evidence could be put. He told the jury that the evidence was not directly related to the charged offences but that the prosecution relied on it to show ‘the true nature of the relationship’ between SM and the applicant, and that it provided a ‘proper and fuller context’ in which to assess the allegations.[73]
[73]T 961
The judge then told the jury the evidence may be relevant for a number of reasons including the state of mind of the complainant, why she might have agreed or submitted to the applicant’s demands and did not complain about the offending. The judge said it may be relevant to show the state of mind of the applicant at the time of the offences and ‘why he felt able to act in a particularly brazen manner’ and show that the charged acts had ‘not come out of the blue’.[74] The judge continued:
It may also be relevant to the accused's intention or motive, for example, by establishing that a particular relationship existed between the parties, that shows his intention or motives for his actions. And may also be relevant to the nature of the accused's alleged behaviour on a particular occasion, for example, by establishing that there was an ongoing kind of relationship within which to assess the allegations. Again, not take the allegations out of this context and judge it that way, but rather the opposite, put it in the context which that evidence reveals, as you accept it to be because of that evidence.[75]
[74]T 962
[75]T 962–3 (emphasis added)

The applicant accepts that the judge also directed the jury that the other misconduct evidence ‘has been led for the limited purpose of showing what the true nature of the relationship was between accused and complainant’; the jury must not use the evidence for any other purpose; they ‘must not decide the case based on prejudice arising from what [they] hear about the accused’; the ‘alleged offences charged can be proved only by the evidence relating to them, not by evidence which related to other conduct’; and the jury ‘must not reason that because the accused engaged in illicit sexual conduct with the complainant on one or more occasions, he was the kind of person who was likely to have done so on the occasions charged’.[76]
[76]T 963
Notwithstanding these directions by the judge, the applicant submits that when read as a whole including the judge’s reference to the ‘true nature of the relationship’ and his direction as to the use of the evidence in assessing the applicant’s ‘intention or motive’ invited tendency reasoning.
In RWC v The Queen,[77] Simpson J (with whom Price and Garling JJ agreed) identified the distinction between tendency and relationship or context evidence in a way that highlights the potency of tendency reasoning. Its force lies in the fact that it invites a reasoning as to guilt of the charged offence rather than establishing circumstantial facts upon which the prosecution proceeds. Her Honour said:
Evidence that is called context evidence is not tendered as going directly to the guilt of the accused person. It is tendered to explain the relationship between the complainant and the accused ... or to explain what may otherwise be unexplained, or raise questions in the minds of the jury concerning the behaviour of the complainant in response (or non-response) to the conduct of the accused the subject of the charge or charges. Commonly, evidence of a history of sexual abuse or misconduct is tendered to explain why a complainant passively yields to the abuse, shows no surprise, or makes no complaint.
Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges.[78]
[77][2010] NSWCCA 332.
[78]Ibid [122]–[123] (citations omitted).
In Ritchie (a pseudonym) v The Queen,[79] Kaye, Weinberg JJA and Kidd AJA said:
In the absence of careful directions by the trial judge, a jury might impermissibly misuse relationship evidence for tendency or propensity purposes. That risk exists, because, generally speaking, most tendency evidence can also fill the role of relationship evidence, and, conversely, nearly all relationship evidence can bespeak a propensity or tendency, without being admissible as tendency evidence.[80]
[79][2019] VSCA 202.
[80]Ibid [128]
In our view, the direction that the jury could also use the so called relationship or context evidence to assess the ‘motive or intention’ of the applicant had the real potential to invite tendency reasoning. That is, because the applicant engaged in conduct or had a motive to act discreditably in the past, he was more likely to have the same motive or intent at the time of the charged acts. Given the ambiguity as to motive and intent in the context of the rape charges, and the lack of specificity as to what evidence was being referred to, the potential was accentuated. Moreover, although evidence of this kind is often and usefully described as context or relationship evidence to assist in distinguishing it from evidence that is directly relevant to the charged act, the use of the phrase, ‘the true nature of the relationship’ also carried the risk of tendency reasoning being employed by the jury. We note that the use of the phrase was deprecated in New South Wales in JDK v The Queen[81] and SKA v The Queen.[82]
[81](2009) 194 A Crim R 333, 350 [36] (McClellan CJ at CL); [2009] NSWCCA 76.
[82][2012] NSWCCA 205, [275] (Adams J).
The question whether the directions when read as a whole adequately mitigated the risk of tendency reasoning is a difficult one. Given the view we take on ground 4 it is ultimately unnecessary to decide the point. With that qualification, the failure to tailor the directions to the evidence, the direction as to the use of the evidence on the applicant’s motive and intention and the repeated use of the phrase ‘the true nature of the relationship’ did invite tendency reasoning and constituted an irregularity in the trial. It is not necessary to determine whether it resulted in a substantial miscarriage of justice. It will be apparent that on any retrial, the directions will need to be carefully revisited.

Conclusion

For these reasons, we agreed in the orders made at the conclusion of the hearing.

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[2022] VSCA 219

30 September 2022