Sriranjan Sriranganathan v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0118

SRIRANJAN SRIRANGANATHAN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2024
DATE OF JUDGMENT:	31 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 257
JUDGMENT APPEALED FROM:	DPP v Sriranganathan (County Court of Victoria, Judge Karapanagiotidis, 14 June 2023)

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CRIMINAL LAW – Appeal – Rape – Whether verdict of guilt on rape charge inconsistent with verdicts of acquittal on other rape charges – Logical and reasonable basis for different verdicts – Whether trial miscarried due to enlargement of prosecution case – No miscarriage of justice where trial counsel for applicant identified no prejudice from enlargement – Leave to appeal refused.

Criminal Procedure Act 2009, ss 182, 224, 233; Jury Directions Act 2015, s 46.

King v The Queen (1986) 161 CLR 423; MFA v The Queen (2002) 213 CLR 606; Parker (a pseudonym) v The Queen [2021] VSCA 348; R v Tangye (1997) 92 A Crim R 545, considered.

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Counsel
Applicant:		Mr G Chipkin
Respondent:		Mr D Glynn
Solicitors
Applicant:	Doogue and George
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I have had the considerable advantage of reading in draft the reasons for judgment of Niall and Taylor JJA. For the reasons they advance, I agree that the application for leave to appeal against conviction should be refused. In addition, however, I wish to add some brief observations of my own concerning ground 2.
For the purposes of the applicant’s trial, the elements of the offence of rape were: first, the applicant intentionally sexually penetrated the complainant, ‘LH’; secondly, LH did not consent to that penetration; and, thirdly, the applicant did not reasonably believe that LH consented to the penetration.[1]
[1]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016), s 38(1).
At the time of the alleged offence, circumstances in which a person did not consent to an act of sexual penetration included, but were not limited to, where the person was so affected by alcohol as to be incapable of consenting (or withdrawing consent) to the act.[2]
[2]Ibid ss 36(2)(e) and (f).
If the prosecution seeks to establish a complainant’s lack of consent based upon an allegation that the complainant was so affected by alcohol as to be incapable of consenting (or withdrawing consent) to the relevant act of sexual penetration, then it is incumbent upon the prosecution to open the case to the jury on that basis.[3] As I said in Parker:[4]
In a trial for rape (or other sexual offence), if reliance is sought to be placed on s 36(2)(e) [of the Crimes Act 1958] as a basis for conviction, axiomatically it is incumbent upon the prosecution in unequivocal terms to disclose that reliance from the outset. A person accused of rape (or other sexual offence) is entitled to know before a trial begins the manner in which the prosecution will put its case against him or her — including whether it is alleged that a complainant was unable [to] consent … by reason of intoxication — and the acts, facts, matters and circumstances being relied on to support a finding of guilt.
[3]See Criminal Procedure Act 2009, s 182(2).
[4]Parker (a pseudonym) v The Queen [2021] VSCA 348, [3].
The conduct of the prosecutor in the present case — to seek opportunistically to put the prosecution case on an alternative basis in response to the jury’s question — is to be deprecated. It risked the trial miscarrying.
In circumstances where, however, defence counsel unequivocally indicated that he would not ‘be disadvantaged in any way’ by the ‘enlargement of the prosecution case’ — so long as the jury were properly directed (as they were) — it is impossible to conclude that there has been a substantial miscarriage of justice. Had it not been for trial counsel’s concession, such a conclusion may not have been so readily reached.

NIALL JA
TAYLOR JA:

The applicant faced trial before a judge and a jury on an indictment containing seven charges of sexual offending and one charge of stalking. All of the alleged offences concerned a single complainant who was, at the relevant time, a co-worker of the applicant at a factory in Melbourne. Three of the charges (charges 4, 5 and 6) concerned allegations of rape on a single occasion in the complainant’s bedroom and were constituted by three different forms of penetration of the complainant’s vagina: lingual, digital and by the insertion of sex toys.
The applicant was convicted of one charge of rape, that involving the insertion of sex toys, and acquitted on all other charges.
The applicant seeks leave to appeal his conviction on two proposed grounds. By his first proposed ground, the applicant contends that the verdict of guilty on charge 6 was inconsistent with the acquittals on the other two charges of rape, which were alleged to be part of the same continuous transaction and in respect of which the evidence, and the issues, were not materially different. The second proposed ground asserts a substantial miscarriage of justice because, it is contended, the judge permitted the prosecution to enlarge its case in respect of charge 6 by allowing the prosecution to contend that the complainant was so affected by alcohol that she was incapable of consenting to the sexual penetration, in circumstances where the prosecution had not opened its case to the jury on that basis.

The evidence

For reasons that are not presently relevant, two earlier trials of the charges were not able to be completed. As a result, the complainant’s evidence had been recorded, some agreed editing was undertaken and the edited recording was played to the jury. For that reason, there was no doubt as to the complainant’s evidence at the time the prosecution opened its case to the jury.

The complainant

In her evidence-in-chief, the complainant said that she commenced employment at the factory in or around 2016 or 2017 and the applicant was her supervisor. She said that they became friends, giving the example that they had exchanged Christmas presents with each other’s children. She said that the two of them would engage in banter and that on occasions he would say things that were ‘probably’ inappropriate for a supervisor, including commenting about her breasts. On one occasion, she said that he spoke to her in the washroom about paying for sex and that he mentioned a figure, which she thought was $1,000, for a hotel room and that she would provide ‘licky’, meaning oral sex. The complainant brushed this comment off. On another occasion, she said that the applicant had approached her in her car, presented her with about $300 or $400 in cash and said that he ‘just want[ed] to see’, which the complainant took as meaning that he wanted to see her breasts. She also said that she recalled another instance when she was on the factory floor when the applicant offered her $200 to see her breasts.
The complainant said that the applicant visited her home on a number of social occasions. On one occasion, the applicant attended a party for both the complainant’s and her sister’s birthdays. On another, the complainant invited the applicant to her home for a taco dinner with her sister and her sister’s partner. The complainant and her three guests, including the applicant, sat around a table outside. A lot of alcohol was consumed. The partner of the complainant’s sister left the table to vomit and the complainant’s sister joined him. This left the applicant and the complainant alone together at the table. The complainant said that she was wearing a nightie and the applicant put his hand on her mid-thigh. The complainant said that she got up and said ‘nup’ or ‘no’. The complainant said that she then sat on the grass and the applicant came and sat next to her and put his arm around her shoulder, trying to feel her breast. She said that he made contact with her breast over her clothes. The complainant said ‘nup, nup’ and then later said ‘look mate you gotta go, we all got work tomorrow’. The complainant said that, as the applicant was leaving, he grabbed her vagina, outside of her clothes. The complainant said this incident left her shocked and crying.
After that incident, in February 2019, the complainant was at home with her son. She described herself as being ‘pretty depressed’ and drinking by herself. The applicant texted or called her asking whether he could come over to which the complainant replied ‘you know what, why not, don’t care, come over, sure’.
The complainant said that she was ‘pretty drunk’, ‘depressed’, ‘down’ and ‘wasn’t exactly in the best of moods’. The complainant said that the applicant arrived with a 700 millilitre bottle of spirits and the applicant and the complainant sat on the outside table. The complainant’s son was inside the house.
The complainant said that the applicant pulled out his phone and started showing her pornography to which she said ‘no, not here. Why? Like, no’, and the applicant then apologised. The complainant said that at around 9 pm she was ‘pretty maggoted’ and ‘really drunk’ and that the complainant was in a ‘flirty sort of an affectionate sort of mood’. The complainant said that she was sitting on the couch and the applicant came over and removed her breast from her bra and nightie. The complainant said that she was ‘really drunk’ at that point and was shocked and told the applicant ‘you know what? Nah … I need to, um … I need to go to bed’. She said that she told the applicant ‘I need to go to bed. I’m fucked. I need to go to bed’.
The complainant then went to her bedroom and lay on her bed. The applicant followed her and started removing her underpants. She recalled that the applicant said ‘sorry, sorry, sorry’ and then took off her underpants. The complainant said that, as he started removing her underpants, she said ‘what are you doing? No’, and that when he took off her underpants she said ‘no, I don’t want to’, she moved up on the bed and he ‘kept doing it’. When asked to describe what he was doing, the complainant said the applicant performed oral sex on her, penetrating her vagina with his tongue. He then placed his fingers inside of her vagina. The complainant said that the applicant knew that she had sex toys in her bedside drawer because they were friends and ‘were open about things like that’, which in context meant that they were open to discussing such matters. She said that the applicant obtained sex toys from her drawer and inserted them into her vagina.
The complainant said that she froze. She said that there was a point where she said ‘no’ and the applicant said ‘sorry, sorry, sorry’ but kept going. The applicant then said ‘that was good’ and left. Asked about her level of intoxication, the complainant said she was ‘drunk’, ‘absolutely maggoted’ and ‘not in the right state to make any choices or anything like that and that is why I told him I need to go to bed’.
The complainant said that the applicant arrived at her house uninvited the next evening and asked her whether she was drunk yet. The applicant came inside the house. The complainant said that he tried to get ‘handsy’ and to touch her breasts. The complainant said that she told him that what he did was wrong and that he had to leave. Asked whether the applicant had responded to that, the complainant said that she thought he was a little bit confused.
The complainant said she received a number of text messages from the applicant, some of which were adduced in evidence. On 6 March 2019, the complainant reported the applicant’s behaviour to her boss at the factory and subsequently made a report to police. In her initial report to police, she did not mention the allegations of rape. The complainant subsequently made a statement to police on 18 March 2019 in which she described the acts of penetration which she said had occurred on 25 February 2019.
In cross-examination, the complainant said that she considered the applicant to be a friend. The complainant was cross-examined about the level of the applicant’s English language proficiency and she accepted that he spoke in broken English but said that she could understand him. She accepted that there was light-hearted banter and she agreed there were fairly free and frank discussions about sexual matters in the workplace. It was put to her that sexual comments made by the applicant were made in jest and that he had never seriously propositioned the complainant for sexual activity. The complainant did not agree with that proposition. It was put to her, and she disagreed, that the applicant had never approached her with cash and talked about or intimated that he wanted her to show him her breasts.
The complainant accepted that the applicant had participated in a number of social events with her and her family. Although she had told police that the applicant had turned up to her house uninvited on the first occasion he came for dinner, she accepted that she discussed it with him during the day and when he had overheard that her sister was coming she had invited him along. It was put to the complainant that the applicant did not place his hand on her thigh on that evening or engage in any inappropriate behaviour. The complainant disagreed with that proposition. The complainant accepted that she had been drinking that evening and that ‘there would be moments in between’ where she was not sure exactly what he was doing but reiterated her evidence that he placed his hands on her breast and later on her vagina.
In relation to the first incident when the complainant said the applicant touched her breast when she was sitting on the grass, the complainant said that at that time she had been crying, she was ‘in a state’ and had been drinking. She said that she could not 100 per cent guarantee the position he was in when he touched her breasts, adding that she had ‘no idea as to position’. She agreed that she had told police that the applicant had placed his hand on her breast under her bra while in her evidence-in-chief she had said he touched her breast over her clothes.
It was put to the complainant that it would be extraordinary that she had invited him to her house in February 2019 after he had earlier touched her breast and her vagina on the earlier occasion. Her explanation was that she had been drinking by herself and that ‘anyone is better than no one’. The complainant agreed that she and the applicant had had a conversation at work that day, she was depressed and she had told him he was free to come over if he wanted. She accepted that there had been a discussion between them in which she suggested that he come to her house that preceded his text message asking whether he could come over. There was also the call record evidence which established that the complainant had called the applicant at 5:18 pm prior to his arrival and, in her evidence, she agreed that she had called him to see if he was on his way to her house.
It was put to the complainant that she and the applicant sat on the couch watching television after the complainant’s son had gone to bed. It was put to her that he had not touched her breasts while they were on the couch, which she denied, and that the complainant had led him into the bedroom and asked him to come there with her, which she also denied. It was put to her that she removed her own underwear, got the sex toys out of the drawer and began using them on herself and asked the applicant to assist her. Again, the complainant denied these matters.
The complainant agreed that when she first spoke to police on 8 March 2019 she did not mention the incident on 25 February 2019. She agreed that she told police that as a result of that incident she felt ‘dirty’ and went to a clinic to get tested for a sexually transmitted infection. She agreed that in fact she had obtained that test on 8 February 2019, well before the alleged incident. She denied that she had lied to police about obtaining the test.
It was put to the complainant that she had consented to the sexual activity with the applicant. The complainant responded that it was not consensual, that she was vulnerable and drunk, that she did not fight back but ‘just stood there and took it’ and that she knew it was wrong. She said that she did not know what to do in that situation.

The applicant

In his record of interview, the applicant denied any intimate contact with the complainant. He said that the two of them were really good friends. He said that he had been to her place on two occasions to eat tacos. In relation to the first incident, he said that the only physical contact was that the complainant had hugged him when he left. He denied any intimate contact in relation to the second incident.

The applicant’s friend

The prosecution also called a friend of the applicant, Suresh Santhirasekaran. Mr Santhirasekaran’s evidence was pre-recorded. It was agreed that the prosecution could elicit his evidence by leading questions. Mr Santhirasekaran agreed that he had been a good friend of the applicant and in 2019 the applicant showed him a police file which had documents in it. The prosecutor asked whether the applicant had told him that he had gone into a bedroom with the complainant and that she had dildos and she asked him to use them on her and he did use them on her. Mr Santhirasekaran agreed with that question.
In cross-examination, it was put to Mr Santhirasekaran that the applicant had told him that he went to the complainant’s house and there was sexual activity involving sex toys. He agreed with that question. It was further put to him that the applicant had told him that the activity was consensual in that the complainant had taken his hand and led him to the bedroom, opened her cupboards and showed him some vibrators and asked him to use those objects on her. The witness agreed that that is what the applicant had told him.

Ground 1: Inconsistent verdicts?

The applicant submits that there is no rational basis to explain the jury’s guilty verdict on charge 6 in light of the acquittal of the applicant on charges 4 and 5. Although, in his written submissions, the applicant identified the central issue across each of the rape charges as being the absence of consent, in oral argument the applicant confirmed that in relation to charges 4 and 5 the applicant denied penetration. In relation to charge 6, which involved the insertion of the sex toys, the trial proceeded on the basis that this had occurred but with the consent of the complainant. The applicant submits that the three rape charges constituted a continuous series of events and that the complainant’s evidence in respect of them was undifferentiated. There was therefore no room on the complainant’s evidence for the jury to find a possibility that she had consented to one but not another of the acts of penetration. The other evidence provided no basis to explain the different verdicts. Further, the applicant says that his admission to his friend in relation to the use of the sex toys does not rationally explain the different verdict on charge 6 because it did not establish a lack of consent by the complainant.
After referring to the relevant principles, about which there is no dispute and to which we shall return, the respondent submits that there was a crucial and obvious difference between charges 4 and 5 on the one hand and charge 6 on the other. In relation to charge 6, in addition to the evidence of the complainant as to the act of penetration, the applicant made an admission as to the act which was the subject of the charge to his friend, Mr Santhirasekaran, who gave evidence at the trial. The respondent submits that the applicant’s claim that the conduct the subject of charge 6 was consensual was undercut by the fact that he denied any sexual contact in his record of interview and given the complainant’s evidence that she had no sexual desire for the applicant.

The respondent submits that the jury were directed that they could accept all, some or none of a witness’s evidence. They were also directed to consider each charge separately. The jury’s acquittals on charges 4 and 5 should not be taken as indicating that they disbelieved the complainant, but rather that they may not have been willing to act on the unsupported evidence of the complainant to establish the physical element of any of the offences.

The principles

Where two verdicts are said to be inconsistent such that they cannot stand together, the test to be applied is one of ‘logic and reasonableness’.[5] For an appellate court to intervene in a case of this kind, the inconsistency in the verdicts returned would need to represent ‘an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[6]
[5]MacKenzie v The Queen (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 (‘MacKenzie’); Andrew v The Queen [2013] VSCA 333, [38]–[47] (Weinberg JA, Whelan JA and Lasry AJA agreeing).
[6]MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.
If there is ‘a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted’.[7]
[7]Ibid 367.
In MFA v The Queen, the appellant had been found guilty of two charges involving sexual offences against the complainant and not guilty of seven charges involving sexual offences against the complainant.[8] He contended that the verdicts were factually inconsistent because, if the jury had rejected the complainant’s evidence on seven of the charges, there was no logical or reasonable basis on which they could have accepted his evidence on the other two charges.
[8](2002) 213 CLR 606; [2002] HCA 53 (‘MFA’).
In MFA, Gleeson CJ, Hayne and Callinan JJ said:
A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.[9]
[9]Ibid 617 [34].
The High Court held that there was an obvious explanation for the differences in the jury’s verdicts: a witness gave evidence which, in some respects, supported the evidence of the complainant in relation to the two charges in respect of which the appellant was found guilty but no witness gave evidence in support of the complainant’s evidence about the events that were the subject of the charges in respect of which the appellant was found not guilty.[10] In those circumstances, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on two charges while acquitting him of the remaining seven charges.[11]

Application of the principles

[10]Ibid 618 [36] (Gleeson CJ, Hayne and Callinan JJ), 631–2 [87]–[89] (McHugh, Gummow and Kirby JJ).

[11]Ibid 618 [36] (Gleeson CJ, Hayne and Callinan JJ).

The submissions of the respondent must be accepted.
Plainly, in order to have found the applicant guilty of charge 6, the jury must have accepted the complainant’s version of that incident to the criminal standard. However, that evidence did not stand alone: there was evidence of an admission by the applicant of his involvement in acts of penetration with sex toys.
The verdicts of acquittal on charges 4 and 5 did not necessarily carry with them a total rejection of the complainant’s evidence with respect of those matters.[12] Those verdicts could, as a matter of both logic and reasonableness, mean no more than that the jury entertained a doubt about one or more of the elements and that, in the absence of any other evidence inculpating the applicant, they could not have reached a guilty verdict beyond reasonable doubt on those charges. It is not possible to interrogate the verdicts with a view to ascertaining the extent to which the admission made by the applicant was material to the jury’s assessment of the evidence on ground 6. With that caveat, and given that, in cross-examination, the applicant succeeded to an extent in challenging the complainant’s recollection of the events on the basis that she had been drinking, it is both logical and reasonable that the applicant’s admission may have been influential in the jury’s deliberations. The short point is that there was additional evidence relevant to charge 6 that was missing from the other two charges. The evidence was different and the issues in contest were different in that only consent was in issue in relation to charge 6.
[12]Ibid 617 [34] (Gleeson CJ, Hayne and Callinan JJ).
Another possible, but not necessary, mode of reasoning was that the jury accepted the prosecution case that the complainant was too intoxicated to consent which, when combined with the applicant’s admission that he had engaged in an act of penetration using sex toys, enabled the jury to reach the verdict of guilt.
It follows for these reasons that ground 1 must be rejected.
We note that, although not part of his written case, during the course of argument the applicant seemed to embrace a contention that the verdict on charge 6 resulted from an impermissible compromise rather than a conscientious discharge of the jury’s oath. That submission was based on the fact that the jury, after a period of deliberation, told the judge that they had reached a verdict on five charges but remained undecided on three. The judge indicated that they should persevere and a very short time later the jury convicted the applicant on charge 6 but acquitted the applicant on all other charges. In our view, that sequence of events provides no factual foundation for this Court to conclude that the jury reached a compromise verdict that did not reflect their faithful assessment of the evidence.

Ground 2: Enlargement of prosecution case

Ground 2 involves the question whether a substantial miscarriage of justice occurred because the prosecution was permitted to enlarge its case by relying on the complainant’s intoxication in relation to the element of lack of consent. In order to understand how the ground arises, it is necessary to set out some aspects of the course of the trial.
In a further amended summary of prosecution opening, the prosecution referred to the complainant as being ‘extremely intoxicated’ at the time she went to sit on her couch on the evening when the alleged rape occurred. Further, that summary refers to the complainant saying ‘I need to go to bed. I’m fucked. I need to go to bed’.
In the prosecutor’s opening address to the jury, the prosecutor set out the circumstances relevant to the rape charges. The prosecutor told the jury that the applicant arrived with a full bottle of scotch and poured the complainant drinks. She described the complainant as ‘extremely intoxicated’ and noted that she had said ‘I need to go to bed. I’m fucked. I need to go to bed.’ Further, she told the jury that the complainant would say that she ‘felt like the room was spinning’ and that she ‘was going to sleep’ before the applicant came into her bedroom and began taking off her underpants.
The prosecutor told the jury in relation to the charges of sexual assault that the complainant did not consent to the touching and that the applicant did not reasonably believe that she consented. The prosecutor said that consent and reasonable belief in consent were matters of law and that the judge would guide them about those matters at the end of the trial. The prosecutor then referred to the rape charges but without any further mention of consent.
After the recorded evidence of the complainant, including the examination-in-chief, cross-examination and re-examination, were played to the jury, which contained numerous references to the complainant being intoxicated, the jury asked a question. That question was ‘[d]oes the law say you can consent to sexual activity, when intoxicated?’ That perspicacious question prompted some discussion between the judge and counsel. The judge proposed that she would tell the jury that consent is a state of mind and the law says that consent means free agreement.
The prosecutor said that the complainant had given evidence that she was not in a position to consent and ‘so the issue in the case may not relate to intoxication’ and that the prosecution case was that she was not consenting because she said ‘no’, moved further up the bed when her underpants were removed and did not say anything to indicate she consented. The prosecutor went on to say ‘[b]ut additionally, she was intoxicated and unable to consent … [b]ut it’s a very complicated situation, and … we may not need to go into such complex directions’.
Trial counsel for the applicant[13] said that there were two competing versions of events (with the complainant’s version being that she affirmatively said ‘no’ to sexual activity). He went on to say that it was appropriate for the judge to foreshadow that there will be more detailed directions at the end of the trial and to give the jury an initial direction that consent means free agreement. Trial counsel for the applicant noted his understanding that the prosecution case was not that the complainant was incapable of free agreement but that she was not freely agreeing, was conscious and was ‘mentally opposed’ to what was occurring to her.
[13]Different counsel appeared in this Court.
After some further discussion, the judge told the jury by way of answer to the jury’s question that:
… consent is a state of mind. The law says that consent means free agreement. As I indicated at that earlier stage, I will give you full directions on each element including further directions on consent at the end of the trial, once you’ve heard all of the evidence.
The judge was plainly troubled by the fact that the prosecution had not opened its case on the basis of the complainant’s inability to consent by reason of intoxication. The judge referred to the decision of this Court in Parker (a pseudonym) v The Queen,[14] observing that it was important for the prosecution, if it intended to rely on intoxication, to make that clear from the beginning of the trial. The judge said that she did not want to reach the point later in the trial where a direction was suddenly sought that potentially enlarged the prosecution case.
[14][2021] VSCA 348, [3] (Priest JA), [56]–[62] (T Forrest JA and Macaulay AJA) (‘Parker’).
In response, the prosecutor said that she intended to put the case on two bases, namely that the complainant was not consenting and that she was too intoxicated to consent. Trial counsel for the applicant said that he had always understood the prosecution case to be that the complainant was not consenting as opposed to the ‘incapacity basis’ but he said that he thought the jury needed some guidance as to what they may make of the complainant’s answers as to her intoxication. Importantly, trial counsel said that he did not think that it was part of the prosecution’s case but that ‘the evidence is what the evidence is’ and the jury had asked a question about it. Trial counsel said that the alternative basis to which the prosecutor referred would constitute an enlargement of the prosecution case. However, he added:
I can’t say that I’m specifically disadvantaged by it, but it’s not the way I apprehended the case was being put.
Counsel added that he had read the decision of this Court in Parker and that:
[i]f [the jury] get the guidance, I don’t think I’ll be disadvantaged in any way if … that avenue is explained to them.
After the conclusion of evidence and as contemplated by the Jury Directions Act 2015, the judge and counsel discussed the directions that were to be given to the jury. The prosecution sought a number of directions in relation to consent, including that contemplated by s 46(2)(b) and (4) regarding the relevant circumstances in which the law provides that a person does not consent to an act. Specifically, the prosecution relied on two circumstances, namely that the person does not say or do anything to indicate consent to the act and that the person is so affected by alcohol or another drug as to be incapable of consenting to the act.[15]
[15]At the relevant time, these circumstances were described in s 36(2)(f) and (l) of the Crimes Act 1958. They are now described in s 36AA(1)(a) and (g).
Trial counsel for the applicant said that the evidence identified two competing versions of events, namely that the complainant was actively not consenting, or alternatively that the complainant had led the applicant into her bedroom and had participated in or requested the sexual activity. Counsel noted that the complainant’s evidence in relation to intoxication did not suggest that she lacked the capacity to consent but rather that she had affirmatively told or indicated to the applicant that she was not consenting. He submitted that the evidence perhaps showed that she was ‘depleted’ and ‘less energised to resist’ by reason of her consumption of alcohol but not to the level where she was incapable of understanding the nature and quality of the act or unable to make a free and voluntary choice about whether or not to engage in it. On that basis, he opposed the giving of a direction on the basis of an incapacity to consent by reason of intoxication. The judge ruled in favour of the prosecution.
In her closing address to the jury, the prosecutor submitted to the jury that the complainant was so affected by alcohol as to be incapable of consenting to the act of sexual penetration.
As her Honour had foreshadowed, the judge relevantly directed the jury:
In some circumstances the law says that the complainant did not freely agree or consent to sexual penetration. These circumstances include if the person is so affected by alcohol as to be incapable of consenting to the act, or the person does not say or do anything to indicate … consent to the act. If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to [the complainant] you must find that she was not consenting.
I direct that mere impairment of judgment or reduction of inhibition by reason of being affected by alcohol does not negate free agreement. It has to be to a level of intoxication or effect that affects the complainant to the extent that she is incapable of consenting to a sexual act. You do not need to consider this question only by reference to these particular circumstances, as I have outlined.
If you are satisfied beyond reasonable doubt on any basis arising from the evidence that [the complainant] was not consenting, then this element will be proven.

The submissions in this Court

The applicant contends that he was deprived of a lawful trial by reason of the prosecution enlarging its case on charge 6 to include the assertion that the complainant was so affected by alcohol as to be incapable of consenting, and the judge directing the jury in those terms. He submits that an enlargement of the prosecution case after the close of evidence is normally indicative of a miscarriage of justice. The applicant relies on ss 182, 224 and 233 of the Criminal Procedure Act 2009.
Section 182(1) of the Criminal Procedure Act imposes an obligation on the Director of Public Prosecutions to file and serve at least 28 days before trial a summary of prosecution opening, unless the court otherwise directs. Pursuant to s 182(2), that document must outline the manner in which the prosecution will put its case and the acts, facts, matters and circumstances that will be relied on to support a finding of guilt. Self-evidently, the primary purpose of the provision is to require the prosecution to crystallise its case before trial.
Section 224(1) provides that the prosecutor must give an opening address to the jury on the prosecution case against the accused before any evidence is given. Section 224(2) provides that the prosecutor is confined to the matters set out in the documents served by the prosecution under pt 5.5 (including the summary of prosecution opening) when opening the prosecution case unless the trial judge considers that there are exceptional circumstances. The applicant submits that the prosecution should have been required to show ‘exceptional circumstances’ pursuant to s 224(2) before it could ask the jury to convict on the basis that the complainant was too intoxicated to consent and that, had the judge enforced that requirement, it would not have been satisfied.
Section 233(1) relevantly provides that a trial judge may give leave to the prosecutor to introduce at trial evidence which was not previously disclosed in accordance with pt 5.5 and which represents a substantial departure from the summary of prosecution opening.
The applicant says that this case is distinguishable from Parker because it is not a case where ‘the Crown case was always that the complainant physically and verbally resisted the applicant at a time when she may well have been incapable of giving consent at any event’.[16]
[16]Parker [2021] VSCA 348, [80] (T Forrest JA and Macaulay AJA).
The respondent submits that the prosecution did not enlarge its case, noting the references to the complainant’s intoxication in the further amended summary of prosecution opening and the prosecutor’s opening address. In any event, the respondent contends that the applicant expressly disavowed that he had been disadvantaged by any enlargement in the prosecution case.

Decision

It is a fundamental tenet of a criminal trial based on principles of fairness that the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case. In King v The Queen, the prosecution opened a murder trial on the basis that one of the accused was the principal who shot the victim and the other was an accessory before the fact.[17] After the close of the evidence, the prosecution was permitted to put its case on quite a different basis, namely that the victim had been killed by a third party and not the principal accused. Observing that the departure caused the trial to miscarry, Dawson J said:
That was a case which was open upon the pleading because King was simply charged as a principal. It was open upon the evidence because it was clearly possible for the jury to find that the deceased was murdered without being able to identify the killer. It was not the case which was presented by the Crown up to the point at which the redirection was given. While it was open on the evidence and on the indictment, it ought not to have been concealed until the last moment. For that reason King was entitled to have his conviction quashed.[18]
[17](1986) 161 CLR 423; [1986] HCA 59.
[18]Ibid 435–6.
To similar effect, in R v Tangye, Hunt CJ at CL observed:
The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage.[19]
[19](1997) 92 A Crim R 545, 556 (McInerney J and Sully J agreeing at 562).

Specifically in the context of a case in which it was alleged that the prosecution did not clearly rely on intoxication as a basis for a lack of consent to sexual offending, Priest JA said:
In a trial for rape (or other sexual offence), if reliance is sought to be placed on s 36(2)(e) [of the Crimes Act] as a basis for conviction, axiomatically it is incumbent upon the prosecution in unequivocal terms to disclose that reliance from the outset. A person accused of rape (or other sexual offence) is entitled to know before a trial begins the manner in which the prosecution will put its case against him or her — including whether it is alleged that a complainant was unable [to] consent … by reason of intoxication — and the acts, facts, matters and circumstances being relied on to support a finding of guilt.[20]
[20]Parker [2021] VSCA 348, [3].
These cardinal precepts now find reflection in ss 182 and 224 of the Criminal Procedure Act. Although the applicant relied on s 233, that section is concerned with adducing evidence not previously disclosed. The issue in this trial did not concern evidence of that kind but rather whether the prosecution could rely on an alternative basis having regard to the evidence that had already been adduced. Further, as the prosecutor did not open her case on the alternative basis regarding lack of consent, no issue arises as to whether there were ‘exceptional circumstances’ for doing so for the purposes of s 224(2) of the Criminal Procedure Act.
In order to succeed on this ground of appeal, the applicant must show that there has been a substantial miscarriage of justice. The touchstone of the principles that apply where the prosecution enlarges or alters the pathway of its case is fairness. It is fundamentally unfair to an accused that they should have to conduct a trial on one basis, including in relation to the examination of witnesses and what questions to ask or not to ask, but then to be forced to meet a different case at its conclusion. An accused in a criminal trial is bound by the way they conduct their case. Forensic decisions are routinely made in a trial and they carry consequences. But the accused is entitled to make those decisions on the basis of the case that the prosecution has indicated it will seek to make.
Whether in a given case a shift in the prosecution case is productive of injustice will depend on the circumstances. Of course, the fluid nature of a trial, and how things might have transpired had the prosecution opened on a different basis, cannot always be known with certainty. Courts should be careful not to be too cautious in accepting that there is prejudice when the prosecution is allowed to enlarge its case.
In this case, the prosecution did not open on intoxication as relevant to consent. It is possible that the prosecutor perceived that there may have been some tension between, on the one hand, the complainant’s evidence that she repeatedly told the applicant ‘no’ in response to his actions and moved further up the bed to avoid him and, on the other, a submission that she was too drunk to consent. In our opinion, the two pathways were not irreconcilable and there was no difficulty in leaving both of them to the jury, as in fact transpired. The prosecution should have identified its case at the outset and, in light of the general proposition already explained, was not entitled to expand its case.
However, the applicant’s counsel at trial said in unequivocal terms that he was not prejudiced by the shift. That was a considered forensic decision. Counsel had read the decision in Parker and the trial judge had very fairly raised the potential for prejudice. It is apparent that, regardless of how the case was opened, the cross-examination of the complainant would not have been different. There was, as the judge had mentioned in the course of discussion with trial counsel, some forensic advantage to the applicant in the evidence that the complainant had been drinking both in terms of the quality of her recollection and the possibility that she was disinhibited. There was always the risk that cross-examination on intoxication would have gone too far, leading the jury to wonder about her capacity to consent — as they did in this case — but it was a calculated risk. Given the jury’s acquittals on 7 of the 8 charges, it appears that some inroads were made in terms of the reliability of the complainant’s evidence and it cannot be said that the approach taken in cross-examination to the complainant’s level of intoxication was an unreasonable one or that it would have been different had the prosecution opened on the basis now impugned. That being so, there was no miscarriage of justice in permitting the prosecution to rely on intoxication in the way that it did.
Ground 2 must be rejected.

Conclusion

Neither ground having been sustained, we would refuse leave to appeal against conviction.

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[2024] VSCA 257

31 October 2024