Stern (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0110

ANTHONY STERN (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2023
DATE OF JUDGMENT:	2 March 2023
DATE OF REASONS:	21 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 57
JUDGMENT APPEALED FROM:	DPP v [Stern] (Unreported, County Court of Victoria, 4 May 2022, Judge Murphy) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Rape – Whether defence counsel incompetent – Failure to object to inadmissible and prejudicial evidence – Failure to seek necessary jury directions – Inept and incompetent cross-examination – Appeal allowed – TKWJ v The Queen (2002) 212 CLR 124 considered.

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Counsel
Applicant:		Ms R Shann SC with Ms H Canham
Respondent:		Ms R Harper
Solicitors
Applicant:	Galbally & O’Bryan
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
MACAULAY JA:

Introduction

Following a trial in which he was incompetently represented by the ‘in-house counsel’ of a firm of solicitors — not the solicitors who represented him in this Court — a County Court jury convicted the applicant of two charges of rape (charges 1 and 2), but acquitted of a third (charge 3).[2] On each charge, the complainant was the applicant’s former female partner, ‘HI’.
[2]On 19 July 2022 the trial judge sentenced the applicant to five years’ imprisonment on each of the charges, six months of the second charge ordered to be served cumulatively on the first. The total effective sentence was thus five years and six months imprisonment, upon which the judge fixed a non-parole period of three years and four months.
The applicant sought leave to appeal against conviction upon a number of grounds. Two of those grounds contended that the trial miscarried:
2 … by reason of the impermissible use of incriminating conduct evidence.
(a) The prosecutor relied on evidence as incriminating conduct without notice
(b) The trial judge failed to direct the jury properly or at all as to the use to be made of the incriminating conduct evidence
3 … due to the incompetence of counsel.
(a)Introduction of evidence of uncharged acts (including uncharged allegations of rape)
(b)Failure adequately to deal with text message evidence
(c)Failure to object to use of evidence as incriminating conduct
(d) Adducing in cross-examination inadmissible and prejudicial evidence

At the conclusion of oral argument in this Court by counsel for the applicant, the respondent’s counsel fairly, properly and realistically conceded that, having ‘heard the full weight of evidence in relation to ground 3, the incompetence of counsel ground, it would seem there is nothing [she] could gainfully say against that ground and were [the Court] to rule that ground made out, [she] would have nothing to say about that’. Counsel for the respondent further conceded that success on ground 3 would lead to an order for a new trial.
In light of the properly-made concessions by the respondent’s counsel, senior counsel for the applicant announced that the applicant did not press several other grounds,[3] save for ground 5, which contended that the trial miscarried:
5    … by the erroneous admission of the evidence of the applicant’s ex-wife.
[3]The grounds were:
1    That the guilty verdicts on charges 1 and 2 are inconsistent with the acquittal on charge 3.
4    That the trial miscarried due to the failure of the trial judge to direct the jury adequately on the use of evidence of uncharged acts.
6    That the trial miscarried due to the failure of the trial judge to direct the jury adequately on belief in consent in relation to Charge 1.
7    That the trial miscarried due to the failure of the trial judge to give a significant forensic disadvantage direction.
8    That the trial miscarried by a combination of errors.
Since the Court was of the view that ground 3 had to succeed, and that the applicant’s convictions had to be set aside, at the conclusion of oral argument we made orders granting leave to appeal against conviction; allowing the appeal; setting aside the convictions; and ordering a new trial.[4] These are our reasons for those orders.
[4]The Court also admitted the applicant to bail.

The evidence at trial

Before turning to a discussion of ground 3, it is convenient to summarise the evidence at the applicant’s trial.
HI and the applicant met on a dating website. They were in a sexual relationship between 2013 and 2015. The charged acts were alleged to have occurred during that relationship. HI did not make a complaint to police, however, until 4 September 2017.
According to HI, on an occasion between April 2013 and May 2013, she and the applicant were in the applicant’s bedroom at his house in a north-western Melbourne suburb having penile-vaginal sex. Although the sex started out normally, HI said, the applicant suddenly turned into a ‘complete monster’, attacking her, hitting her, pulling her hair, calling her ‘bitch’ and getting rough. She told him to stop and get off her and tried to push him off, but he kept hitting and hurting her and pulling her hair. Once the applicant ejaculated, HI said, he calmed down. HI became angry and asked why he did not stop. The applicant allegedly said she had not used the safe word ‘tomato’, something that HI claimed had not previously been discussed. These activities formed the basis of the first charge of rape, upon which the applicant was found guilty.
HI gave evidence that, in 2014, she and the applicant got into an argument which related to her wanting him to move out of her house. HI ran upstairs to her bedroom. The applicant followed, pleading that he did not want to break up. HI said that she tried to shut the door, but the applicant overpowered her, entered the bedroom and shut the door behind him. The complainant’s evidence was that she was walking backwards towards the ensuite bathroom saying, ‘get away from me’ and ‘don’t touch me’. She started to fall backwards, but the applicant ‘broke her fall’ and was on top of her. He began having penile-vaginal sex with her. She struggled, telling him to ‘get off’ and ‘stop’ whilst he was on top of her and she could not move. These activities formed the basis of the second charge of rape — referred to throughout the trial as the ensuite incident — upon which the applicant was also found guilty.
The jury acquitted the applicant of a third charge of rape, about which the complainant gave the following evidence. She said there was an occasion when, after having gone to sleep before the applicant, she was woken by the applicant ‘trying to get inside’ her. HI said that she was lying on her left-hand side, facing her bedroom window, when she felt the applicant behind her. He tried to have sex with her from behind and she tried to stop him. She tried to push him off her, but her nightie got caught around her knees rendering her unable to move freely. HI told the applicant to ‘get off’ and to ‘stop, stop’, but he proceeded to penetrate her anus until he ejaculated.
Evidence was also introduced at trial of two uncharged acts. The first related to an occasion early in the relationship and before any of the charged acts. HI gave evidence that, after drinking alcohol the night before, she woke up in the applicant’s bed ‘not remembering anything’. She was bleeding from her backside and was sure she had had sex. The applicant told her she had vomited and that he had showered her. Under cross-examination, she said she was ‘a hundred percent certain … that [she] had sex the night before’. Throughout the trial this was referred to as the shower incident.
The second uncharged act related to an alleged incident after the applicant had moved out of the complainant’s home and after the last of the charged acts. They went on a trip to Canberra with their respective children. HI alleged that she was woken up by the applicant attempting to have anal intercourse with her despite her repeated requests to stop. She claimed that the applicant penetrated her anally. Afterwards, the applicant became ‘very emotional’, and said that he was ‘sorry’ and was an ‘idiot’. This was referred to as the Canberra incident throughout the trial.
During the course of her evidence-in-chief, HI said that she and the applicant had attended couples’ therapy, but the applicant had asked that she not bring up the rapes since they could ‘work on that together’. She said that the first person she told about the offending was a neighbour, ‘KW’. When asked about reporting the rapes so long after they were alleged to have occurred, HI said that she went to the police to report her ‘missing jewellery’. If it had not been for the missing jewellery, HI said, she very much doubted that she ‘would have ever gone to the police about the rape’. She added:
Well it was my children’s jewellery. It was my jewellery. There was my jewellery stuff as well, but it was my children’s jewellery that made it – that means a great deal to me and my children. It was when they were born they were given certain pieces of gold jewellery, and it represents their birth and it was my children’s things, so when I saw that they were taken I – you know, I suspected [the applicant] taking it, even his mother told me it was [the applicant] that took it, but also because I know [the applicant] has stolen things from me in the past…
HI also gave evidence of a ‘pretext’ telephone call that she made to the applicant at the suggestion of police on 17 November 2017. They discussed a car manual, before she accused him of stealing jewellery and wine from her. She also accused the applicant of forcing himself onto her. The applicant, however, claimed that her allegations were ‘not true’; she was ‘constantly making stuff up’; and she ‘lied to the police’. He said he had no idea where her jewellery was, and any wine that he had drunk he had meant to replace. When HI specially alleged that the applicant ‘raped’ her in Canberra, he said: ‘No, never happened, I don’t know what you’re talking about’. He also said he did not remember any incident in the ensuite or HI having blood coming from her backside. The applicant said that HI had ‘this faulty memory where [she] just make shit up’.
The prosecutor also tendered a bundle of telephone text messages, Exhibit B, through HI. One quite extraordinary message in the bundle sent by HI to the applicant related to a ‘horrible nightmare’ that she allegedly experienced. It read as follows:
I just woke up to the most horrible nightmare where you were anally raping me and I was in excruciating pain and crying for you to stop but you wouldn’t. I knew I was bleeding, it was horrible!!! Why did you do that to me???! You know it is rape!!! Why did you hurt me like that??? You told me you loved me! How can you hurt me like that if you loved me? People just can’t bear hurting someone they love! I can’t ever imagine causing pain like that on someone I love. Sex is supposed to be something beautiful between two people. Why did you do it??? Why???! What was the point? It’s not like I never gave you sex! Why?! Tell me so I can try to understand you. Why do you do that? Where did you learn that? Had anyone ever hurt you when you were growing up? Tell me because I need to know why you hurt me when you were my boyfriend and you were supposed to love me, not hurt me!
Under cross-examination, HI claimed that she had never intended to be in a serious relationship with the applicant and that she tried multiple times to end it. She agreed that she did not intend to disclose the rapes to police when she initially made her statement, and described herself as ‘completely broken’ and ‘completely emotional’ when she made the complaint. Earlier, she had disclosed the applicant’s offending to a neighbour, KW. HI said that the applicant had moved in with her due to issues with his landlord. She did not, however, want him (or anyone else) to move in with her. When asked about the parenting agreement that the applicant had with his ex-wife, HI denied knowing that her house would be listed as the primary address for the applicant’s son. When cross-examined about the ‘Canberra incident’, HI said that she went to Canberra with the applicant and the children since the only other alternative was for the applicant’s son to stay with her in Melbourne. She felt ‘put on the spot’ as the children had already been told that they were going to Canberra. HI said that she and the applicant had broken up before the trip, but she stayed in contact with the applicant for the sake of his son.[5] HI was extensively questioned about her relationship with the applicant. Further, a number of exhibits were tendered in the course of cross-examination, including a Valentine’s Day card.
[5]See also [40] below.
‘KW’ was the complainant’s neighbour during the relevant period. Her evidence was that the complainant disclosed the offending to her over a period of time in approximately October 2015. KW said ‘that it happened on an interstate trip…the first time, because I remember that being the first time’. She also spoke about how HI disclosed concerns as to the applicant’s consumption of alcohol. KW confirmed that her original statement said that the complainant disclosed the sexual offences after she believed the couple had separated, but during cross-examination she said that she could no longer be one hundred percent certain of this fact.
Detective Senior Constable James O’Bree, the police informant, became involved in the matter in early September 2017. He confirmed that Exhibit B contained ‘screen-shots’ of text messages from the complainant’s telephone. Detective O’Bree also confirmed that he had assisted HI to make a pretext call on 11 November 2017.
On 18 December 2017 Detective O’Bree conducted a record of interview with the applicant in the presence of Senior Constable Allen. The audio and video record of interview, Exhibit C, was played to the jury. In the course of the record of interview, the applicant said that, during their relationship, he and HI would have both vaginal and anal sex. He said that he could not remember an occasion when HI was intoxicated and he had to help her to bed. The applicant denied the ensuite incident, and denied ever having raped HI or being violent towards her. He said that they had a safe word ‘tomato’ — it was just a word that he had used in a ‘previous relationship’ — ‘but never really did anything with it’.
Detective O’Bree also gave evidence that the applicant’s ex-wife, ‘KO’, had been contacted by police. The following statement of KO, dated 30 September 2018, was read into evidence by Detective O’Bree:
One, I was asked by Detective Senior Constable O'Bree out front of the police station if I’ve ever used a safe word during sex. Two, my answer was no and I’ve never engaged in sexual activity with [the applicant] or any sexual partner where I’ve used safe words.
Under cross-examination, Detective O’Bree confirmed that in the initial meeting with HI, the Canberra incident and the ensuite incident were discussed. He agreed that in relation to the ensuite incident HI had said ‘he tackled me to the ground’. Detective O’Bree said that with respect to the safe word ‘tomato’ referred to by the applicant in the record of interview, ‘the only previous partner [that was] canvassed in relation to that issue [was] the ex-wife’, KO. He also agreed that HI’s initial complaints to police were about theft of jewellery, wine and a dog. It was only after reporting ‘those three matters’ — and being informed of the unlikelihood of any investigation of them ‘bearing fruit’ — that HI ‘discloses the sexual assault’.
The applicant gave evidence in his defence. He said that he told the truth to police in his record of interview. His evidence was that, after meeting HI through ‘RSVP’, they first met when she came to his house after he got a new barbecue. They had a few glasses of champagne — he might have had beer — before having penile-vaginal sex. The applicant said that they became ‘exclusive’ maybe three or four weeks after their first date, in late February or early March. Their respective ‘kids’ got along really well, so they would ‘often do stuff with the kids’.
Asked specifically, the applicant said that he did not administer or give HI anything with the intention of rendering her unconscious so that he ‘could take advantage of her’. He said that he could not recall a specific instance where HI had been so substance-affected or intoxicated that he needed to put her to bed.
The applicant said that he never engaged in violence during sex with HI, or engaged in sexual activity that required a ‘safe word’. He said they ‘talked about using a safe word, but … never had any sex that actually required a safe word’. They discussed using ‘tomato’, but it was never used. He denied the incident founding charge 2, saying ‘it never happened’.
He gave evidence that after a family holiday in Queensland in December 2014, the couple attended counselling and that was when the complainant asked him to move out. He denied asking her to not bring up sexual assault, stating that ‘it hadn’t happened, so there was no reason’ to have said such a thing. He confirmed that the complainant and the three children went to Canberra for a week in 2015 due to his work commitments. He denied raping her on that trip. His evidence was that the relationship ‘petered out’ in September 2015 but that the complainant continued to contact him about a variety of matters. He denied stealing her jewellery.
When dealing with ground 3, we will set out several critical aspects of the applicant’s cross-examination.

Ground 3: Incompetence of counsel

Ground 3 contended that the incompetence of the applicant’s advocate at his trial — that incompetence demonstrated principally by four discrete aspects — caused the trial to miscarry. The four discrete aspects of incompetence relied upon were: first, permitting and encouraging the introduction of evidence of uncharged acts; secondly, failure adequately to deal with the evidence of text messages; thirdly, failure to object to use of evidence as incriminating conduct; and, fourthly, cross-examining in such a way as to introduce inadmissible and prejudicial evidence.[6]
[6]The applicant’s advocate at his trial was, at the direction of the Court, invited by the Registrar to provide an affidavit responding to the allegations of incompetence (see Knowles (a pseudonym) v The Queen [2015] VSCA 141, [144]–[145]). He declined the invitation.
The legal principles which inform the resolution of this ground were set out by the High Court in TKWJ.[7] In that case, the appellant had been charged with various sexual offences against the son and daughter of a woman with whom he was then living. So as to enable separate trials to be conducted, the indictment was amended to allege offences against only the son. In the course of the trial, counsel for the accused informed the prosecutor that he intended to lead evidence of his client’s good character. The prosecutor replied that, in that event, he would seek to call the daughter to give evidence about the allegations about her. As a result, no character evidence was led. McHugh J explained the relevant principles governing a ground alleging the incompetence of trial counsel as follows: [8]
Where an appellant contends that the conduct of his or her counsel has caused a criminal trial to miscarry … the appellant carries a heavy burden. This is a consequence of the adversarial nature of our legal system and the role and function of counsel. Criminal trials are not inquisitions. They are contests ‘in which the protagonists are the Crown on the one hand and the accused on the other’. Ordinarily, a party is held to the way in which his or her counsel has presented the party’s case. That is because counsel is in effect the party’s agent. Counsel is ‘ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted’. The discretion retained by counsel in the running of a case is very wide. …
But how does a court of criminal appeal determine whether counsel’s conduct of the trial has led to a miscarriage of justice? By what standards is counsel’s conduct judged? And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict? The unattractive answer to the latter question must be that it depends on what counsel did or did not do.
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict … No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.
But in other cases — perhaps the majority — the conduct of counsel — although irregular — will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.
…
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, ‘whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue’. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, ‘it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence’. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel’s conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice.
[7]TKWJ v The Queen (2002) 212 CLR 124 (‘TKWJ’).
[8]Ibid 147–50 [74]–[77], [79]–[80] (citations omitted).

In Knowles, it was contended that trial counsel’s failure to adduce allegedly exculpatory evidence had given rise to a miscarriage of justice. This Court said: [9]
TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel’s ‘flagrant incompetence’, what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why — that is, the alleged incompetence of counsel — the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of — it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence – was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.
[9]Knowles (a pseudonym) v The Queen [2015] VSCA 141, [131] (citations omitted; emphasis in original) (‘Knowles’).

Evidence of uncharged acts

As we have mentioned, evidence of two uncharged acts was introduced at trial. The first of those was the shower incident, in relation to which HI gave evidence that early in her relationship with the applicant, on an occasion after drinking alcohol the previous night, she woke up in the applicant’s bed ‘not remembering anything’. The applicant told her she had vomited and he showered her. HI noticed bleeding from her backside, however, and was sure she had had sex. Clearly, the implication of this evidence was that the applicant had sexually penetrated her anally when she was incapable of giving consent. The second uncharged act was the Canberra incident, which allegedly occurred after the applicant had moved out of the complainant’s home. HI gave evidence that she was woken up by the applicant attempting to have anal intercourse with her and that he then did so without her consent.
Both uncharged acts amounted to allegations of rape. Undoubtedly, the evidence of those uncharged acts of rape was highly prejudicial to the applicant. Significantly, the prosecution initially did not seek to lead evidence of either uncharged act. The evidence of the two uncharged acts book-ended the charged acts. Given that they were the first, and last, episodes, there was a real risk the jury would focus on them. The first incident which involved allegedly drugging the complainant was stark, and if accepted, cast the applicant in an appalling light. The last incident, which occurred after the relationship had ended was brutish and occurred nearby to the complainant’s children making it particularly shocking. The significance of these events, which the prosecution did not seek to adduce as any part of its case, is shown by the amount of time spent in cross-examination and address on these incidents. Quite remarkably, however, in a tactic that defies explanation as a rational forensic decision, the applicant’s advocate invited the prosecution to adduce the evidence.
It is to be noted that the Prosecution Opening for Trial,[10] dated 3 June 2020, made no mention of the shower incident, and referred to the Canberra incident only as ‘context evidence’. In turn, the Defence Response,[11] dated 16 June 2020, prepared by counsel who had appeared for the applicant in committal proceedings and initially held a brief for him, made it clear that the admissibility of the evidence of the Canberra incident was challenged.[12] By the time the applicant’s trial commenced in April 2022, however, ‘in-house counsel’ had taken over the applicant’s defence at trial.
[10]By s 182(2) of the Criminal Procedure Act 2009, the summary of prosecution opening must outline –
(a)the manner in which the prosecution will put the case against the accused; and
(b)the acts, facts, matters and circumstances being relied on to support a finding of guilt.
[11]Section 183(2) of the Criminal Procedure Act 2009 provides that the response of the accused to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.
[12]In part, the response stated:
The defence challenges the admissibility of evidence of an ‘uncharged act’ alleged to have occurred in Canberra in July 2015, referred to in … the Prosecution Opening. The act is said to occur 6 months after the end of the alleged offence period and after the relationship ended. It does not provide a ‘context’ to their relationship or to the charged offences. It is simply an allegation that has not been charged. The evidence is not relevant to a fact in issue; and to admit it would be unfairly prejudicial.
In pre-empanelment discussion, the prosecution made it abundantly clear that the prosecution would not be adducing evidence of the Canberra incident. Leading prosecution counsel said:
I had every intention of prohibiting and not leading any of that evidence. ... I was surprised it was in there [in the Prosecution Opening] in the first place. It is not context evidence. It’s [not] shown as to be relevant. So I won’t be leading it. I won’t be referring to it in the opening. If my learned friend wishes it for his own forensic purposes, and maybe it’s a credit issue, then so be it but it won’t come from the Crown.
Notwithstanding the unequivocal disavowal of the admissibility of the Canberra incident by the prosecution, however, the applicant’s advocate submitted that it was ‘part of the narrative’ and, in his view, would ‘emerge in evidence anyway’. He was, he said, ‘not particularly concerned’ by the evidence, which was ‘evidence of a different kind to what’s in the trial anyway’. He was ‘not objecting to the giving of the evidence’, since he thought ‘it’ll come out in the wash’, adding:
Because as soon as I begin asking questions about whether there was a holiday to Canberra after she says the relationship is over, and he’s moved out of the house, then she’ll indicate that this is what happened on that trip. So … I’m not pressing the [point].
Counsel leading for the prosecution also made it clear that the prosecution had not intended to introduce evidence of the shower incident; but that, since the defence wanted the evidence to be adduced, he would lead the evidence during the evidence-in-chief of the complainant. Thus, in pre-empanelment discussion which occurred a little after that referred to immediately above, counsel for the prosecution said:
I think it’s prudent for me to indicate, basically for the transcript, Your Honour, but [scil, that] I had no intention of leading the unconscious or the allegation where the complainant says one of their very first dates that she was essentially drugged, got drunk, and woke up, had a bleeding anus, and puts it all together later on saying, ‘Oh, he must have raped me’. I have no intention of leading that. But I understand that defence wish to adduce it. It’s in the pretext [telephone call]. It’s in the record of interview. Because it’s there and because I don’t want to split my case, I will lead some evidence in chief about that event, despite that - - -
It seems that part of the central strategy underpinning the applicant’s advocate’s desire to have the evidence of the two uncharged acts adduced was to elicit evidence which would found a credit attack on the complainant. So far as the shower incident was concerned, the advocate sought to advance an argument that it was unlikely that HI would have continued in a relationship with the applicant if he had raped her early in the relationship when she was intoxicated. As to the Canberra incident, the advocate wanted to advance an argument that it was unlikely that HI would have agreed to share a bed with the applicant in Canberra if he had been sexually violent towards her during the course of the relationship.
Moreover, the applicant’s advocate seemed to think that the shower incident would necessarily be ventilated in evidence because it had been referred to in both the pretext call and the record of interview. And, as the discussion referred to above shows, he thought that evidence of the Canberra incident was part of the narrative which would ‘emerge in evidence anyway’.[13]
[13]See [34] above.
In our view, the advocate’s strategy, which saw the prosecution adduce evidence of two uncharged acts of rape, went well beyond being merely risky (and extremely so) — it was forensically irrational. It should have been plain to competent defence counsel that, as an attack on credit, the strategy would almost inevitably be highly ineffective. The introduction of the evidence should have been seen to be completely unnecessary in the advancement of the defence case. Indeed, it should have been clear that the introduction of the evidence would be very damaging and extremely prejudicial to the defence, and that very little — if anything — positive could be gained from it. Any potential forensic advantage to the defence was exceedingly slight, whilst the potential damage was very great.
Without reference to the shower incident, competent counsel could still have advanced an argument that it was unlikely that the complainant would have maintained a relationship with the applicant after the first charged violent incident of rape. Moreover, competent counsel could also have mounted an argument that it was unlikely that HI would have agreed to share a bed with him in Canberra if the applicant had previously subjected her to non-consensual sexual activity. It is baffling that the applicant’s advocate seemed to think that evidence of the alleged rape in Canberra would ‘come out in the wash’. Long experience — repeated daily in criminal courts — demonstrates that, with the exercise of a modicum of skill by the advocates involved, coupled with proper management by the trial judge, irrelevant and prejudicial evidence is routinely quarantined in criminal trials. In our view, it would have been a relatively simple matter in this case to elicit evidence that HI had agreed to share a bed with the applicant without introducing the highly prejudicial evidence that he had raped her and without opening up the topic as a subject of re-examination. As to that, we regard it as being somewhat disturbing that the applicant’s advocate was ‘not particularly concerned’ by the evidence, which he considered to be ‘evidence of a different kind to what’s in the trial anyway’. He should have been very concerned that the evidence might be introduced, and exercised such skill as was at his disposal to keep it from being adduced.
Not only was the decision to have the evidence of the uncharged acts introduced not the product of a rational forensic decision, but we consider that the advocate’s cross-examination on the Canberra incident was ineffective. It included the following:
Now just coming back to the timeline, you say that you accompanied him to Canberra and you stayed with him in Canberra?---Yes.
And that was in July of 2015?---Yes, I think.
And again it was suggested to you that you could accompany him?---Yes.
And on your account he was someone who you’d succeeded in getting him out of your house six months earlier, five or six months earlier?---(No verbal reply)
You agree?---That’s right.
You were desperate to get him out of your house five or six months earlier?---Yeah I was. I was very desperate to get him out of the house.
And you go with him to Canberra on a holiday where you’re aware that you’re going to be sharing a hotel room and a bed with him?---Well I didn’t even think about the bed, but I didn’t think about it at all but, yes, I was aware that we were going to be sharing accommodation, and I’m not even sure if we were still in a relationship. In other words I can’t remember when exactly things got cut off, from where I’m sitting today, right now. Um, he moved out – I didn’t care to have a relationship. He was – whatever. But we still had a lot of contact with each other. I mean, of course he’s a human being. I care about whatever happened in his life. I care about his son, he’s a child, and I was trying to help as much as possible, so – but it wasn’t – I mean you can say it was a kind of a relationship but it wasn’t um – I don’t know what it was to be honest. I don’t know. What it a relationship or was it not a relationship, I don’t know. There was no – there was nothing – things just happened and the time just flew.
But you were desperate to get him out of your home in January of 2015?---Yes.
HIS HONOUR: Well she said that.
[DEFENCE ADVOCATE]: Yes, I know. And that was because you knew him to be someone who was capable of turning into a monster very suddenly?---That was because he was hurting me and he was like this in my children’s home. My daughter got anorexia. My – I had – he was – he’s not someone that I could live with. He’s not someone that I could have in the same home as my children, and I was suffocating – suffocating, and I wanted him to move out, and I could only finally breathe once he moved out. I was able to breathe.
And then you go with him and you share a bed with him in Canberra?---Yes.
And then you say that he, again, sexually penetrates you without your consent in Canberra in July of 2015?---Yes.
And now I put it to you that you remained in a relationship with him even after returning from Canberra?---It wasn’t – I mean you could probably – I don’t know what it was. As I said, I don’t know what it was. It was – we still had contact with each other. We still – obviously we went to Canberra and we shared a bed together, so I suppose you can call it a relationship, but it wasn’t –yeah, you can – I suppose you can call it a relationship, but it was just what it was. I can’t even put a name to it.
The defence advocate’s cross-examination on the shower incident was also highly ineffective, as the following extract shows:
Did that occur to you at the time?---Well I don’t understand what you’re trying to say. I have the drink, wake up in the morning not remembering anything, and I realise I’ve had sex. There’s blood from my bottom and he explains to me, when I told him I can’t remember, he explains - gives me his explanation. I’m not really sure what you want me to say. Like what exactly you’re saying.
Do you agree that your state of mind at that time was that you assessed that there was at least a risk that he’d had sex with your whilst you’re unconscious?---I didn’t at the time think of any risk because I didn’t realise that I had been raped. I had – obviously we’ve had sex and I don’t remember any of it, and he tells me, you know, that apparently I got drunk and I threw up all over myself. But I really don’t know like – at the time I really wasn’t thinking too much except for – actually I do remember I thought he was a sweet guy who looked after me while I was um – I don’t know, while I vomited, but I was too dumb to think much more than that. I took – I bought his story but it still didn’t quite add up. So, yes, I did – it did feel a bit uncomfortable, well more than a bit uncomfortable that he said that I vomited on myself and there was no vomit on my dress. I don’t understand why he needed to give me a shower if I didn’t have vomit all over my body.
Now can I take it that some - - -All I - - -
Sorry, go ahead?---Well all I can say is that I woke up, I had no recollection of it, and he gave me the explanation. That’s all I could say.
And you’ve never had an experience before where you’ve blacked out and not been able to remember the whole evening?---No, absolutely – no. Absolutely not.
So it’s a first of its kind situation for you?---Yeah.
You believe that you’ve had sex and yet you have no recollection of it?---(No verbal reply)
Yes?---That’s correct.
And on the basis of his explanation you must have at least thought, ‘Well I’ve been taken advantage of while I was heavily intoxicated’?---Well I don’t know if that went through my mind, that I’d been taken – like I know we’ve had – I’m – I don’t – I should have felt like that. I should have been a lot more um – but I – it didn’t make sense to me that I didn’t – I mean obviously it does maybe if – if he’s taken – if he had sex with me while I had no idea what I was doing, then yes, of course that he’s taken advantage of me, but I can’t tell you what I was thinking exactly, because I could only tell you how I was feeling, and I was confused. I was more worried about the fact that – I mean I acknowledged that we’ve had sex, but I didn’t think too much more into that. That’s what I’m trying to say. I didn’t think too much more into that. I was more concerned about the fact that I couldn’t remember it for one. For two, I had blood and having blood was a lot more of a concern to me um, than – and I didn’t – yeah.
Well I’m suggesting that the effect of what you’re telling the jury is that you’ve had an alarming experience of waking up in someone’s home with no recollection of the night before and yet you’re certain in your mind that there’s been sexual activity. That’s something you accept?
[PROSECUTOR]: Your Honour, can I just object for a moment?---I’m feeling that you’re trying to - - -
[DEFENCE ADVOCATE]: Just a moment.
HIS HONOUR: Just hold on. Just answer – look I think, Mr [Defence Advocate], I think you’ve explored this enough. Move on.
[DEFENCE ADVOCATE]: Yes, I’ll move on.
Not only was the evidence of the two uncharged acts highly prejudicial because it had the capacity to suggest that the applicant was guilty of two uncharged acts of rape, but it also had the capacity to bolster HI’s credibility. As to that, KW’s evidence was that she recalled that HI had told her that non-consensual sex had occurred on a trip to Queensland or Canberra. Further, the evidence of the shower incident had the capacity to undermine the applicant’s credit because in the pretext call he said he did not remember any such incident, while in the record of interview he said he ‘vaguely remembered something about it’.
Finally, having insisted on the evidence of the two uncharged acts being introduced, the applicant’s trial advocate should have done his utmost to ensure that the trial judge’s directions were adequate to instruct the jury on the use — and non-misuse — of the evidence. He failed to do so.
Hence, no direction was sought that the trial judge warn the jury not to use the evidence as tendency evidence.[14] Moreover, he did not ask the judge to warn the jury not to infer from the evidence that the applicant was the kind of person who was likely to have committed the offence charged, and to use that conclusion as evidence of guilt. The advocate simply asked the judge to give a direction that the evidence shows the ‘whole narrative’. In the result, the judge gave a wholly inadequate direction that the evidence of the two uncharged acts was ‘just part of the overall context’, and said:
Now, the prosecution says that this other evidence is relevant because it shows the whole narrative of the relationship between the complainant and the accused man. So you must keep this evidence in perspective: it is only one part of the prosecution’s case. As I have said, you have got to not decide this case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing the whole narrative of the relationship between the parties, and you must not use the evidence for any other purpose.
[14]See Jury Directions Act 2015, s 29(1).

In the circumstances, the failure to ask the judge to warn the jury against misuse of the evidence, and to direct the jury that the evidence was not relied upon to support its case, cannot have been the product of any rational forensic decision by the defence advocate. It was incompetent not to ask for appropriate prophylactic directions.

Text messages

The ‘horrible nightmare’ text message in Exhibit B[15] was not admissible and objection should have been taken to it.
[15]See [15] above.
Except as otherwise provided by the Evidence Act 2008, relevant evidence is admissible.[16] Relevant evidence ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’.[17] And ‘probative value’ is defined in the Dictionary to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.
[16]Section 56(1).
[17]Section 55(1).
Even accepting that, in order for it to be relevant, there need only be a ‘minimal, logical, connection’ between the evidence and a fact in issue,[18] HI’s claim in a text message that she had ‘the most horrible nightmare’ that the applicant was ‘anally raping’ her, could not rationally have directly or indirectly affected the assessment of the probability of the existence of a fact in issue (whether the fact in issue be the fact of sexual penetration; consent; or belief or awareness relevant to consent). The fact that a person has dreamt (or had a nightmare) in which something occurred, goes no way towards proving the existence of the subject-matter of the dream (or nightmare).
[18]Papakosmas v The Queen (1999) 196 CLR 297, 321–2 [81] (McHugh J).
Quite plainly, the ‘horrible nightmare’ text message had no probative value, and should not have been admitted into evidence. We cannot conceive of a situation where competent defence counsel would have failed to object to it. Clearly, the applicant’s trial advocate should have objected to its admission into evidence. He did not do so. His failure to do so cannot have been the product of a rational forensic decision.
Since the ‘horrible nightmare’ should not have been admitted into evidence, self-evidently it should not have been used as a springboard in cross-examination to attack the applicant’s credit. But it was. The following passage of the applicant’s cross-examination on the text messages contained in Exhibit B is an illustration:
You didn’t reply to that [‘horrible nightmare’] message?---No
You say in your evidence you didn’t reply because that was her messaging about a dream?---Well I was also in bed with my girlfriend at the time it was 6 o’clock in the morning. I wasn’t about to get into a extended discussion about [HI’s] dream.
No, not then and there?---I just didn’t want to get involved with any discussion on her dream.
But you agree though, that the message that one in itself clearly turns form her recounting her dream to something that was real and when I say real, her alleging something that was real?---Uh, I don’t think so, I think she’s talking about her dream.
‘Why did you do it, why what was the point, it’s not like I never gave you sex, why tell me so that I ca try to understand you, why did you do that, why did you do it’. You’re not suggesting are you that you thought that that was to do with a dream?---Well, she said she had a dream and she asked me about a dream, so it seems pretty clearly linked.
Are you suggesting that you consider that to be talk about a dream?---Yes. Umm, I don’t think I would have read the whole text in too much detail but yes she’s talking about a dream and then asked me why something happened in a dream.
What about the next one then, ‘you hurt me when those things were very clear of pain and not brain science to know that they cause pain’, did you consider that to be her texting you about a dream?--- I just assumed all the texts that came after were part of the dream, and as I said, I was in bed with my girlfriend. I wasn’t um, going to start reading through texts and responding to them at 6 o’clock in the morning.
‘You said you loved me yet you found so many ways to show me otherwise. I always said actions speak louder than words. I always got confused.’ Did you take that to be her texting you about the dream?---I don’t know what she’s talking about there.
What about over the page, ‘Not to mention the trauma you left me with the rape and your alcohol abuse.’ She still talking about the dream?---Potentially, again, I can’t get into her head what she’s talking about. I never raped her so - - -
So your answer – that answer, is that - - -?---she’s not, she’s not talking about anything really.
Hang on, is your answer that potentially she’s still talking about the dream there?---It’s all text. I don’t know what she’s talking about. It’s a continuation of text after a text about the dream.
[DEFENCE ADVOCATE]: Your Honour, I’ve got an objection to this. These messages are not in chronological sequence. They’ve been produced by the complainant, and clearly they come from different times. This message on its face, the next one says, ‘We agree that I pay for the first year of the car loan. I’ve done that.’ So, on its face it’s from the middle of 2016 and not from December.
HIS HONOUR: Well it seems to be 6 December 2015 but - - -
[DEFENCE ADVOCATE]: Yes, but the problem is that this is a sequence of pages. The first one – well, I think the best understanding of the first one is it’s from long after the – I’m suggesting is it’s a confusing question if it’s not - - -
HIS HONOUR: Rephrase the question and refer the witness to the bottom of the page so we’re all on the one page.
[PROSECUTOR]: Yes, so there’s a big, long text message that starts with, ‘I just woke up to the most horrible nightmare,’ 6 December 2015 at 6.12am, yes?---Yep.
We’ve been through that. You didn’t reply to that. You didn’t give it the time of day because it was about a dream, yes?---And it was 6 o’clock in the morning.
And it was 6 o’clock in the morning. There’s another message straight after it that you did not reply to about not being brain science, yes?---Yep.
Didn’t reply to that did you?---Doesn’t seem like it, no.
Was it still about the dream?---I, I suppose so. I mean it’s a continuation on, on from the dream. I can’t – you know, I can’t get into [HI’s] head and know exactly what she’s talking about. I know I never raped her so she’s not talking about anything that actually happened.
The next one, ‘You said you loved me,’ you’d accept now that that’s not a message about a dream, is it?---Um, okay. I – again, I can’t get in her head. I don’t know why she sent this. It doesn’t relate to anything that actually happened so I don’t know whether she had a dream, or she was imagining it or what.
It is regrettable that the applicant’s trial advocate did not object to the admissibility of the evidence of the ‘horrible nightmare’ text message in the first place. It is even more regrettable that he did not see fit to object to the prosecutor’s cross-examination, when it would have become clear to any competent defence counsel that the evidence had such great potential for misuse.
In the result, the evidence was used to mount a vigorous attack on the applicant’s credit. Thus, in his final address, counsel for the prosecution used the applicant’s response to the text messages to advance arguments that his evidence was unpersuasive. By way of example, in a passage replete with sarcasm, the prosecutor argued:
I will argue to you, and I do, that what [the applicant] says was really quite unpersuasive. You hardly got any denials in the text messages, did you? Exhibit B, I think they are. These ones, produced in evidence-in-chief, when [HI] was giving her evidence. Then the second page, a very longwinded, very express set of allegations of rape being heard. Sex is supposed to be something beautiful between two people and it goes on, you know that.
It’s true that it starts off with, ‘I just had a dream, a horrific dream’. And you heard the accused man latch onto that, when he was in there. I didn’t respond, no. Didn’t respond, she was talking about a dream. I’m not going to respond to a dream. Well, what do you make of that? Is he for real? You’ve got the text messages there. It wasn’t long before the opening sentence of, I had a horrific dream turn, morphed into real allegations, it wasn’t long after reading the first few sentences of that text messages that it was not to do with the dream anymore. They were real allegations.
‘Not to mention the trauma you left me with for rape and your alcohol abuse’. ... Nothing to do with the dream. Do you really accept what he says, ‘I didn’t deny it because it was to do with the dream’. No. And he did respond. He did respond to that text message, a text message alleging that alcohol abuse, but a rape allegation, a dream. He says, ‘I’m not really – I’m really not looking to fight. We agreed I’d pay for the first year of your car loan, I’ve done that’. That’s his response. Is he serious?
There were other bases upon which competent defence counsel would have objected to the admissibility of Exhibit B. The selection of messages in the bundle was incomplete and out of sequence. Messages months — if not years — apart were presented sequentially. A number of messages were undated. These factors should have been seen to have had a significant impact on the probative value of the evidence, and to have engendered a risk of unfair prejudice.[19] Yet their admission into evidence was not — as it should have been — the subject of objection.
[19]Evidence Act 2008, s 137.
Quite apart from the cross-examination set out above,[20] the applicant was cross-examined at length in a way that suggested that there was somehow an onus on him to explain gaps in the messages. Hence, in response to answers that he did not know whether he had replied to a particular message sent more than five years earlier, the prosecutor asked why he had not checked for himself. Moreover, the damage to the defence case was exacerbated by what followed. Before they retired, the jury asked the following question:
'Your Honour, [the applicant] stated that he had supplied his lawyer with a couple of sets of texts between himself and the complainant. Are the jury able to examine the phones or other record of the text exchanges to assist in our deliberations?'
[20]At [50] above.
In answering the jury’s question, the judge said:
Well the answer to the question is no. As I said to you at the start of the trial, trials are adversarial position, adversarial contests and the parties decide what material they’ll put before the jury in support of the respective cases. You've heard evidence that the complainant provided some screenshots to the police, and the accused man provided some texts to his lawyers that he was able to find, and some of them obviously appeared in court, but that’s – the evidence has closed.
As I said to you at the start, again, you’re not to be investigators and so you’re not to speculate on what other text messages might – text material might be out there in the cloud or elsewhere. You’re to just – what’s been omitted or what might be there, you’re to determine the case on the material you’ve got, on the exhibits you’ve got, on the oral evidence and no other basis, and not speculate about what other material, or any other witnesses might have said, or what other material might have been produced by anyone. So, the evidence is closed. It’s about 300 odd pages of transcript and that’s it. So, I hope that answers your question, Mr Foreman.
We have some sympathy with the submission made by the applicant’s counsel in this Court that the answer given — at the suggestion of the defence — that the jury should not speculate about what was not provided, did not correct the impression that the applicant or his representatives were responsible for the selective presentation of messages. Of course, the jury’s evident concern with the text messages would not have occurred had they been objected to in the first place and excluded from evidence.

Incriminating conduct

Section 18 of the Jury Directions Act 2015 defines conduct to mean ‘the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged’; and incriminating conduct includes ‘conduct that amounts to an implied admission by the accused … (b) which negates a defence to an offence charged’. The combined effect of ss 19 and 20 is that the prosecution cannot rely upon incriminating conduct unless the specified notice has been given to the accused and the trial judge determines that the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct. Importantly, if the prosecution relies on evidence of conduct as evidence of incriminating conduct, s 21 of the Act requires the judge to give certain directions to the jury.
The applicant’s ‘defence’ was that he had not raped HI and had never been sexually violent towards her. A deal of the cross-examination of the applicant — some of which we have earlier referred to[21] — and parts of the prosecution’s final address insinuated that, had the applicant been innocent of what was alleged against him, he would have denied the conduct alleged against him in the pretext call and the text messages. Thus, so it seems to us, the prosecution sought to rely on the applicant’s ‘conduct’ — constituted by his silence in the face of an allegation or allegations — to negate his essential defence; that is, that he had never taken part in non-consensual sexual activity with the complainant. At the very least, the prosecution invited the jury not to accept his evidence because he did not deny the allegations put to him. An example is set out above.[22] In these circumstances, we consider that ss 19, 20 and 21 of the Jury Directions Act 2015 were infringed. The applicant’s advocate should have objected to the reception of the evidence absent proper notice; should have challenged its admission on the basis that any probative value it had was outweighed by the risk of unfair prejudice; and, if the evidence was admitted, should — as a minimum — have insisted that the directions required by s 21 be given. His failure to do so was incompetent.
[21]See [50] above.
[22]See [52] above.
But even if the Jury Directions Act 2015 provisions had no application, it is clear that there were a number of bases upon which competent counsel would have (and should have) objected to the evidence, and sought proper jury directions if the evidence was admitted over objection. As to that, the burden of authority in this State appears to support the proposition that, when persons are speaking on ‘even terms’, and an allegation of wrongdoing is made by one (or more) against another, if the person against whom the allegation is made fails to protest his or her innocence, that failure can amount to conduct inconsistent with innocence.[23] Of course, if evidence of that kind is admitted, it is imperative that the trial judge direct the jury that it ‘has no great probative value’, and also direct the jury as to the proper use that might be made of it.[24]
[23]See e.g., R v Alexander [1994] 2 VR 249, 263 (‘Alexander’); Sibanda v The Queen (2011) 33 VR 67, 66 [75] (‘Sibanda’).
[24]Alexander, 263; Sibanda, 67 [76].
In Clay,[25] the appellant was found guilty of historical sexual offending against three children, his first cousins. Evidence was led that, years after the relevant events, when the allegations of sexual offending came to light, the appellant visited the children’s father. He said he had come to say sorry for what had happened, although he added that he had no recollection of the matter. When asked by the father how he could not remember sexual activity with ‘little kids’, the applicant remained silent. Further, when confronted by one of his alleged victims, the appellant said, ‘I’m really sorry, I know I’ve done something to you guys. I don’t remember but I’ve obviously done something and I’m really sorry’; and when asked whether he remembered particular sexual activity, said, ‘I don’t remember. I’m really sorry, I’ve obviously hurt you and done something but I don’t remember’. Trial counsel had not objected to the evidence of these ‘admissions’ by the appellant (or, for that matter, to evidence that the alleged victims had a history of bedwetting, and that one of them had engaged in self-mutilation). In allowing the appeal against conviction, the Court said:[26]
It is fair to say that we are at a loss to understand why (a) no objection was taken to the admissibility of this evidence, and (b) no request was made for further directions regarding the use to be made of what the appellant had allegedly said. In our view, the probative value of this evidence was far outweighed by its likely prejudicial effect, and it should have been excluded pursuant to s 137 of the Evidence Act 2008. The evidence of the alleged admissions in each case lacked precision and specificity. When combined with the appellant’s claim to have had no recollection of the events in question, any probative value is significantly diminished, and the possible misuse of this evidence is enhanced.
In effect, this evidence was of poor quality, and should not have been admitted.
If, however, we were wrong about that, this was a case that called for a careful direction on the part of the trial judge as to how the jury might use this evidence. The vagueness, and opaque nature of what was attributed to the appellant required a specific warning to the jury as to its inherent weakness.
Counsel’s failure to object, and further failure to take any exception to her Honour’s charge regarding this matter, would normally count heavily against the appellant. In this case, however, it was part of a pattern of indifference or ineptitude on the part of counsel in discharging his proper responsibility in the trial, and supports the appellant’s contention that he suffered a substantial miscarriage of justice. ...
[25]Clay (a pseudonym) v The Queen (2014) 43 VR 405 (Weinberg, Osborn and Priest JJA) (‘Clay’).
[26]Ibid 416 [66]–[69] (emphasis added).
In the present case, it is plain that the applicant’s advocate should have objected to the admission into evidence of the text messages; should have objected to the use sought to be made of the applicant’s silence in the face of allegations contained in the text messages and pretext call; and, the evidence having been admitted, should have asked the judge to give careful directions as to the use — and non-misuse — of the evidence.
That view is supported also by an earlier case, MMJ,[27] in which the applicant had been convicted of a number of sexual offences against his stepdaughter, involving a variety of sexual activity. In the course giving evidence, the applicant’s wife said that one day she had approached the applicant and asked him, ‘Are you sexually involved with [the complainant], or have you been sexually involved with [the complainant]?’. In response to the question, the applicant had ‘just looked’ at his wife, then looked away and continued to watch television. There was no objection to this evidence by defence counsel. In the final address the prosecutor put to the jury, in effect, that ‘the allegation was so shocking and remarkable that if it was untrue then a vigorous denial would have been expected’. The suggestion was put that the applicant’s silence was indicative of his guilt. The prosecutor did not put the precise fact or events to which the guilt attached. Rather, the prosecutor put all of the alleged conduct of the applicant to the jury and attached the implication of guilt from the applicant’s silence to all of the alleged conduct. The submission was not the subject of any complaint by defence counsel, and no direction was given by the trial judge as to its use.
[27]R v MMJ (2006) 166 A Crim R 501 (‘MMJ’).

Notwithstanding failure by defence counsel to make any objection or take exception, the Court of Appeal set aside the conviction. Agreeing with Ashley JA, Buchanan JA said:[28]
If the jury construed the applicant’s silence as an admission, notwithstanding the difficulties pointed out by Ashley JA, they could not know the acts constituting the sexual involvement the applicant had admitted, whether it was one of the acts alleged by the complainant, for example, touching her vagina or penile penetration of her vagina or some other act. Nor could they know when the admitted acts occurred. Accordingly, I do not consider that the evidence could found a verdict of guilty to any particular offence or offences.
Put at its highest I consider that the evidence of the accusation and the applicant’s silence could only have been admissible as evidence of the nature of the relationship between the applicant and the complainant, which may have rendered more probable the truth of the complainant’s evidence of the commission of particular offences. But which offences? Probably not those committed after the accusation, and as to earlier offences, the jury could not tell when the applicant was admitting to having been sexually involved with the complainant. Even if the evidence was admissible as going to the relationship between the applicant and the complainant, the difficulties inherent in it would probably have led to its exclusion in the exercise of the trial judge’s discretion.
[28]Ibid 516–7 [54]–[55].
Ashley JA had observed:[29]
… When a question arises whether an accusation of criminal conduct made by a person speaking on even terms was admitted or adopted as being true, a number of issues may arise: first, was an admission made at all? Second, if yes, what was the subject-matter of the admission? Third, was the admission true in whole or in part? Subject to the supervisory role of the trial judge, these are jury questions.
[29]Ibid 520 [70].
Further, Ashley JA said:[30]
The particular evidence was beguilingly simple. But its apparent simplicity concealed a considerable number of real difficulties — both factual and legal. Having analysed, particularly, the issue of implied admission, I very much doubt, regardless how the jury construed the mother’s question, that it was open to it to treat the applicant’s reaction thereto as evidence of an admission in respect of any particular offence. Logically, any assumed admission could have related to all or some or one of the offences said to have been committed up to the time at which the question was asked. In the end, then, I doubt that the evidence could have been used other than as evidence of the relationship that existed between the complainant and the applicant; and the jury should have been so instructed. But if that conclusion be wrong, then at least there was need for very clear instruction as to the manner in which the jury should deal with the evidence in the context of possible adoptive admission. For on a best view for the Crown, there were, as I have explained, not one but a serious of issues in that connection. They had to do with a piece of evidence which the prosecutor had highlighted, at times in extravagant language, both at the outset and towards the end of his final address.
[30]Ibid 522 [85] (citations omitted).
Ashley JA then set out the directions that were necessary when such evidence was admitted. We need not repeat them all, but they included the following:[31]

Fifth, the jury could only use the accusatory statement implicit in the question as evidence of the truth of what was stated if it was satisfied that the accused had by his silence admitted the truth thereof.
Sixth, in considering the reaction of the accused to the accusatory statement implicit in the question, the jury should consider, first, whether it was satisfied that the accused had heard the question, and second, whether the circumstances were such that the accused should have been expected to make a denial of it. If it was satisfied of each of these matters then it might treat his silence as evidence of the truth of the accusatory statement implicit in the question. In those circumstances, it could treat the evidence as showing a relationship between the accused and the complainant — at least in the period embraced by the question, but not necessarily confined to that period — in which context the evidence of the particular charged offences could be considered.
[31]Ibid 523 [90]–[91].

As we have said, the applicant’s advocate should have objected to the evidence; and, if it were admitted, should have done his best to ensure that the judge gave adequate directions as to its use. To adopt the language in Clay, his failure to do either thing ‘was part of a pattern of indifference or ineptitude’ in discharging his proper responsibility in the trial, supporting the appellant’s contention that he suffered a substantial miscarriage of justice as a result of his flagrant incompetence.[32]
[32]See [60] above.

Cross-examination introducing prejudicial material

After the applicant’s advocate had cross-examined the complainant for a full afternoon, the trial judge said to him (in the absence of the jury):
Look it’s a matter for you how you deal with this witness. She is rather – I don’t know whether I [scil, it is] fair to [use the] word verbose, but you’re getting long answers to questions, so that’s a matter for you.
The judge’s was a fair comment. An examination of the transcript reveals that, to a significant extent, when questioning the complainant the applicant’s advocate did not use the techniques, or exercise the skill, that moderately competent defence counsel might be expected to possess, to control a garrulous witness providing largely non-responsive answers to his questions. A couple of examples are set out above.[33] Another example, in which HI was permitted to furnish highly prejudicial evidence in a non-responsive answer to a question, is the following:
[HI], what the state of your relationship was in late 2014 was shown by that [Fathers’ Day] card, do you agree?---The state – the state of the relationship changed many times during that period. Um, state of the relationship changed when he raped me um, I – he even told me at one point that he was raping me because he was an alcoholic. I tried to get him treatment for that as well. So, the state of the – because he wouldn’t – he didn't want to leave. He didn’t want to break up, he didn’t want to leave, and he said he’ll get help, and I tried to help him with his drinking but - - -
[33]See [40] and [41].
Not only did the applicant’s advocate fail to exercise much (if any) control over the witness, but his cross-examination was repetitive. Thus, at one point several hours into his cross-examination of HI, after he had been asking her at length about a car loan (said to be relevant to the complainant’s motive to lie), the jury indicated its exasperation with his questioning. The following passage from the transcript demonstrates the point:
HIS HONOUR: Just hold on, I have a message from the Foreman. The Foreman is echoing thoughts that have been going through my mind, it reads, ‘Your Honour, I understand that events suggest in regarding a car, but surely we have been through this long enough’.
[DEFENCE ADVOCATE]: Yes.
HIS HONOUR: Well, you’ve got the message Mr [Defence Advocate], move on don’t move it along, let’s forget the car and move onto some other issue.
The transcript of the cross-examination of HI is replete with other examples of the applicant’s advocate permitting the witness to provide long, non-responsive answers, a number of which brought out prejudicial material (including that the applicant had been abusive to her children, causing one to suffer anorexia).
When regard is had to the whole of the record, it is clear that the applicant’s advocate’s cross-examination lacked skill, and, to a significant extent, was incompetent. It was repetitive and overlong, and conducted in such a way that the complainant was given free rein to provide non-responsive answers, many of which contained highly prejudicial matter. Those observations having been made, however, we acknowledge, that were the trial advocate’s cross-examination the only matter advanced in support of the contention that the applicant’s trial was conducted with flagrant incompetence, we may not have been able to conclude that there had been a substantial miscarriage of justice. But when one takes into account the cumulative effect of all the matters advanced under cover of ground 3, the conclusion that the applicant suffered a substantial miscarriage of justice is inescapable. As his acquittal on charge 3 would seem to indicate, conviction on charges 1 and 2 was not inevitable.[34]
[34]Baini v The Queen (2012) 246 CLR 469, 481 [31]; Andelman v The Queen (2013) 38 VR 659, 681 [101].
As we have indicated, we are persuaded that a substantial miscarriage of justice was occasioned by the flagrant incompetence in manifold respects of the applicant’s trial advocate. Too much went wrong in the trial to permit the applicant’s convictions to stand. For these reasons, we made the orders referred to above.[35]
[35]At [5] above.

Ground 5: The ‘safe word’ evidence

Ground 5 impugns the admissibility of the evidence of the applicant’s ex-wife that they did not use a ‘safe word’ during their relationship.
Over objection, the trial judge ruled that the prosecution could lead evidence from the applicant’s ex-wife that she and the applicant had not used a safe word or engaged in role play together. Counsel for the applicant in this Court submitted that this was an error, since the evidence was not relevant. It was not capable of establishing that the applicant lied in his record of interview, counsel submitted, because the applicant only said he had used the safe word ‘tomato’ in a ‘previous relationship’, that relationship not necessarily being that with his ex-wife. Counsel submitted that if, however, the evidence of the applicant’s ex-wife were relevant, it was at least more prejudicial than probative because of the risk of misuse; a risk which was pronounced, in a trial in which the prosecutor’s attack on the credibility of the applicant was a prominent theme.
In our view, taken at its highest — and assuming that it could properly be inferred that the applicant’s reference in the record of interview to a previous relationship was to his previous relationship with his ex-wife — the evidence had scant probative value. Indeed, in circumstances where the prosecution did not rely upon it as a lie constituting incriminating conduct,[36] it is difficult to see what relevance it might have had beyond impinging upon the applicant’s credit.
[36]See [57] above.
Given its scant probative value, and given its somewhat speculative nature (inviting the risk of misuse, and, thereby, the risk of unfair prejudice), we consider that the judge should have excluded the evidence under s 137 of the Evidence Act 2008.
Ground 5 is made out.
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[2023] VSCA 57

2 March 2023