Sturt (a pseudonym) v The King
[2024] VSCA 102
•20 May 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0237 |
| AARON STURT (A PSEUDONYM)[1] | Appellant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the victim of alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the appellant’s name.
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| JUDGES: | MACAULAY, KAYE, T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 April 2024 |
| DATE OF JUDGMENT: | 20 May 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 102 |
| JUDGMENT APPEALED FROM: | DPP v [Sturt] (Unreported, County Court of Victoria, Judge Quin, 17 November 2023) |
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CRIMINAL LAW – Appeal – Conviction – Two counts rape, one count sexual assault – Evidence of implied admission by accused – Judge did not direct jury regarding treatment of evidence of implied admission – Whether error in failure to give jury direction – Whether substantial miscarriage of justice – Failure to give mandatory direction constituted error, occasioning substantial miscarriage of justice – Respondent concedes substantial miscarriage of justice – Leave to appeal granted – Appeal allowed – Convictions set aside – Retrial ordered – Jury Directions Act 2015, ss 12, 14, 16, 18, 20–23; Criminal Procedure Act 2009, s 276(1)(b); Evidence Act 2008, ss 97, 101.
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| Counsel | |||
| Appellant: | Mr C Mylonas | ||
| Respondent: | Ms S Lenthall | ||
Solicitors | |||
| Appellant: | Robyn Greensill & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MACAULAY JA
KAYE JA
T FORREST JA:
In November 2006, the appellant, then 36 years old, married the complainant, then 38 years old, having first met the previous June. After moving to a rural property in January 2010 and living there with their two children and children from the complainant’s previous marriage, they separated in August 2015. Due to incidents occurring soon after their separation, the appellant was convicted of two counts of raping the complainant and one of sexual assault. He has sought leave to appeal those convictions.[2]
[2]Criminal Procedure Act 2009, s 274.
Prosecution case
Between August 2015 and Easter 2016, the appellant attended on a number of occasions at the property where he had lived with the complainant, often to perform work on or related to his semi-trailer vehicle which he used in his business. In November 2015, the appellant was at the property building a ramp. He asked the complainant to assist by holding something. Shortly afterwards, he dragged the complainant to an old chook shed, and began to forcibly pull down her jeans (charge 3, sexual assault[3]). While the appellant was in the process of undoing his own pants, the complainant managed to get away and run back to the house.
[3]Crimes Act 1958, s 40(1).
On an occasion in December 2015, while at the property welding something, the appellant forcibly pulled the complainant into a steel garage and bent her over a quad bike. She tried to fight him off. The appellant pulled down the complainant’s pants, and his own, and then introduced his penis into her vagina (charge 1, rape[4]), continuing to penetrate her until he ejaculated. Soon after, on another occasion in December 2015, the appellant did much the same thing, this time bending her over a ride-on mower inside the steel garage (charge 2, rape).
[4]Ibid s 38(1).
The trial
The appellant was tried before a jury in the County Court on the two charges of rape and single charge of sexual assault. The trial lasted four days. The sexual acts were not disputed. In convicting the appellant of each charge, the jury implicitly rejected the account the appellant gave to police on 30 March 2017 in which he denied the offending, claiming that any sexual acts that took place between him and the complainant were consensual. That is, the jury accepted that on each of these occasions the complainant did not consent to the sexual activity and the appellant did not reasonably believe that she was consenting to any of the sexual activity. The appellant was sentenced to a total effective sentence of 8 years and 4 months’ imprisonment.
At trial, the prosecution led evidence from the complainant that, following the second rape, the appellant said to her, ‘I shouldn’t have done that’. The complainant was cross‑examined about that statement. The prosecutor referred to it in his opening and closing addresses, as did the judge in her charge. Neither counsel for the appellant nor the prosecutor made any request pursuant to the Jury Directions Act 2015 that the judge direct the jury about the relevance of that evidence or how it may be used in deciding the case, and the judge gave no such direction.
The appellant proposed five grounds of appeal,[5] the second of which is that:
The learned Judge erred in failing to direct the jury not to engage in impermissible reasoning relating to the statement “… I shouldn’t have done that” resulting in a substantial miscarriage of justice.
[5]Originally, the appellant had 6 grounds of appeal but abandoned proposed ground 5.
In its written case, the respondent conceded that a substantial miscarriage of justice occurred for the reason contended by ground 2 and that the appellant’s conviction should be quashed and a retrial ordered. As explained below, that concession was correctly made. An error was established which resulted in a substantial miscarriage of justice. At the hearing of the application we ordered that the appellant be granted leave to appeal, his appeal be allowed, his convictions quashed and a retrial ordered. We said we would provide our reasons for our decision later. These are our reasons.
Our conclusion on ground 2 was sufficient to dispose of the appeal. Nevertheless, after explaining why we reached our conclusion on ground 2 we will briefly refer to each of the other grounds insofar as it is desirable to do so.
Ground 2: did the absence of any direction concerning the statement, ‘I shouldn’t have done that’ give rise to a substantial miscarriage of justice?
Relevant principles
A representation made out of court by a person who becomes an accused in a criminal proceeding, which is adverse to that person’s interest in the outcome of the proceeding, is an admission as defined in the Evidence Act 2008.[6] The hearsay rule does not apply to evidence of an admission.[7] An admission may be express or implied.
[6]Evidence Act 2008, Dictionary.
[7]Ibid s 81(1).
Pursuant to the Jury Directions Act 2015 (the ‘Act’), ‘incriminating conduct’ means conduct that amounts to an implied admission by the accused of having committed an offence charged or an element of an offence charged or which negates a defence to an offence charged.[8] Relevantly, ‘conduct’ includes an act of the accused which occurs after the event or events alleged to constitute the charged offence.[9]
[8]Jury Directions Act 2015, s 18.
[9]Ibid.
In a criminal trial, the prosecution must not rely upon evidence of conduct as evidence of incriminating conduct unless two conditions are satisfied.[10] First, the prosecution must give a notice that it proposes to rely upon such evidence. Secondly, the trial judge must determine that, on the basis of the evidence as a whole, the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
[10]Ibid s 20(1)(a)–(b).
If the prosecution relies upon evidence of conduct as evidence of incriminating conduct, the trial judge must give the jury a specific direction pursuant to s 21 of the Act.[11] That is, the trial judge must direct the jury that it may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that the conduct occurred and the only reasonable explanation for the conduct is that the accused held that belief. As well, the judge must direct the jury that even if it concludes the accused believed that he or she had committed the offence charged, it must still decide on the basis of the evidence as a whole whether the prosecution had proved guilt beyond reasonable doubt. A direction of this kind is mandatory if conduct is relied upon as incriminating conduct: its necessity does not depend upon either the prosecutor or defence counsel requesting it.
[11]Ibid s 21.
Defence counsel may request the judge to give an additional direction concerning incriminating conduct. The additional direction is that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.[12]
[12]Ibid s 22.
Generally, if the prosecutor or defence counsel request the judge to give the jury a direction, the judge must give that direction unless there are good reasons not to do so.[13] Even if a particular direction is not requested, the judge must give the direction if the judge considers that there are substantial and compelling reasons for doing so (having first given the prosecution and defence counsel the opportunity to make submissions about doing so).[14]
The use of the evidence of the statement at trial
[13]Ibid ss 12, 14.
[14]Ibid s 16.
As already stated, at trial the appellant did not dispute that the sexual acts described by the complainant had taken place. The elements of the offence of rape that were in issue were: (1) that the complainant did not consent to the penetration, and (2) that the appellant did not reasonably believe that the complainant consented to the penetration.[15] Likewise, in relation to the offence of sexual assault, the disputed elements were: (1) that the complainant did not consent to the touching, and (2) that the appellant did not reasonably believe that the complainant consented to the touching.[16] As defence counsel put it to the jury in her opening address, the nature of the sexual acts was not in dispute but what was ‘strongly disputed’ were the parties’ states of mind; that is, ‘[w]as [the complainant] consenting to what was happening and did [the appellant] reasonably believe that she was’.
[15]Crimes Act 1958, s 38(1)(b)–(c).
[16]Ibid s 40(1)(c)–(d).
An aspect of the defence case at trial was that the consensual sexual dynamic between the appellant and the complainant had, at times, featured forceful behaviour on the appellant’s part and submissive behaviour on the complainant’s part. It was common ground that the complainant and the appellant had engaged in consensual sex on one or more occasions during the period of the alleged offending, even after the occasions of allegedly non-consensual sex. On one of those occasions, the admitted consensual sex had involved conduct on the appellant’s part that was similar to what was said to have occurred on the occasions of the charged acts. On that basis, defence counsel ultimately urged the jury to doubt the proposition that the appellant did not reasonably believe that the complainant consented to the charged acts.
With that explanation of the facts in issue before the jury it is necessary to examine how the statement attributed to the appellant was used during the trial.
Opening the case to the jury, the prosecutor referred to the appellant having said, immediately following the event alleged to be the second rape, ‘yeah, I shouldn’t have done that’. The prosecution then led evidence from the complainant. In her evidence about the second rape, after describing penetration and ejaculation she said ‘that time he’d said — cos I was crying again — that time he actually said, ‘I shouldn’t have done that’’.
Defence counsel cross-examined the complainant about that evidence. In that cross-examination, the complainant proffered an explanation of what the appellant meant by his statement. It was put to the complainant that she understood the appellant to be saying that he merely regretted having had sex. The complainant rejected that interpretation saying that the appellant was angry and wanted to hurt her. The transcript records as follows:
Yes, all right, now is the second occasion in December that you said he said, “Yeah, I shouldn’t have done that”. Is that correct?---Yes.
And did you ask him what he meant by that?---Yes. I did.
And what did he reply?---He told me that everything he’s done with me has meant nothing to him and that he’s doing it because he’s angry with me. He wants to hurt me and that's his words, “I want to hurt you for what you’ve done to me”.
So, it was your understanding that he regretted having sex with you?---No. My understanding that he’s saying that it doesn’t mean anything, that he’s angry with me and wants to hurt me. And when he’s having sex with me that’s not for reconciliation. That’s to punish me and to frighten me and to make me feel scared.
And this morning you didn’t give evidence of anything he said in response to explain his statement about, “I shouldn’t have done that”?---That’s what he’d say, “I shouldn’t have done that” and just walks away.
All right?---There’s no conversation after it. He would do it and then walk away but while he’s doing it and I’m saying, “No”, he’ll talk over the top of me with the conversation that I’ve just told you.
So, I’m going to go back to the time that he said, “Yeah, I shouldn’t have done that”?---Yes.
Did you ask him what he meant by those words when he said that?---No.
No?---No. He just walked away. There was no room for any kind of conversation.
In final address, on a number of occasions, the prosecutor referred to the statement attributed to the appellant. The first occasion was when the prosecutor recounted to the jury the narrative of the second rape, referring to the evidence of the complainant summarised above.
Towards the end of his final address, the prosecutor dealt with the two issues in dispute. After addressing the question of the complainant’s consent he returned to the evidence about the state of mind of the appellant and whether it had been proved that the appellant did not reasonably believe that the complainant was consenting. In that context, the prosecutor emphasised ‘one particular piece of evidence’ from which he invited the jury to infer the absence of such reasonable belief. That piece of evidence, he said, was the appellant’s statement ‘yeah, I shouldn’t have done that’ on the occasion of the second rape. The prosecutor also emphasised aspects of the evidence given by the complainant when cross-examined about the statement, in particular the complainant’s interpretation that the appellant was angry with her and wanted to hurt her.
In her address, defence counsel turned to that same statement. Counsel argued that the complainant had not asked what the appellant meant by his statement. She invited the jury to consider that in making the statement the appellant may have been expressing regret ‘for reconnecting with her, for having sex when they were separating, for leading her on, or giving her hope’. Counsel argued that the statement was ‘completely open for interpretation’ and did not point to any ‘acknowledgement of wrongdoing of the type suggested’.
In her charge to the jury, the judge summarised defence counsel’s arguments that, at the time of each of the incidents, the appellant reasonably believed that the complainant was consenting. Amongst other matters, the judge referred to the relevant statement of the appellant immediately after the alleged second rape. The judge directed the jury that there was no evidence of the complainant’s response to the statement, and that the statement was ‘open to a number of interpretations and a number of possibilities other than him wanting to hurt her and be angry at her’.
Submissions
In this Court, counsel for the appellant argued that the statement attributed to the appellant was capable of being used by the jury as an implied admission by the appellant that he did not believe the complainant had consented to the sexual penetration on the occasion of the second alleged rape. Accordingly, counsel submitted, the judge should have given the jury a direction under s 23 of the Act that there are all sorts of reasons why a person might behave in a way that makes them look guilty, and even if the jury thinks that the accused made the statement, it must not conclude from that evidence that the accused is guilty of the offence charged.[17] Even though defence counsel had not sought such a direction, it was submitted that there were substantial and compelling reasons for giving a direction. The absence of such a direction resulted in a substantial miscarriage of justice.
[17]Jury Directions Act 2015, s 23. The premise of the direction under s 23 is that evidence is given of conduct but the prosecution does not rely upon it as incriminating conduct. It is a direction which defence counsel may request the judge to give.
As stated, the respondent conceded that a substantial miscarriage of justice had occurred because the judge had not directed the jury as to the permissible ways in which it may use the evidence of the appellant’s statement. A series of errors or irregularities occurred.
The respondent accepted that at trial the prosecution had relied upon the evidence as an implied admission of the appellant’s lack of belief in consent. Having argued that the evidence was reasonably capable of being viewed as incriminating conduct, the respondent conceded that, first, the prosecution had failed to file a notice of intention to use the evidence in that way. Secondly, no determination had been sought from the trial judge pursuant to s 20 of the Act that the evidence was reasonably capable of being viewed by the jury as evidence of such incriminating conduct.
Thirdly, because the prosecutor had relied upon the evidence as incriminating conduct, the respondent accepted that the trial judge was required, but failed, to give the mandatory direction required by s 21 of the Act.
The respondent conceded that the failure to comply with those provisions of the Act constituted an irregularity in the trial because the evidence in question went squarely to one of the two facts in issue. Moreover, this court could not be satisfied that the error did not make a difference to the outcome of the trial or that conviction was inevitable.
Consideration
In short, the concessions made by the respondent were entirely appropriate and undoubtedly correct.
First, the statement made by the appellant, ‘I shouldn’t have done that’, immediately after the event said to constitute the second rape, was clearly capable of being construed as an implied admission that he knew that what he had done was wrong because he knew the complainant was not consenting at the time they had sex.
Secondly, there is no doubt that the prosecution sought to deploy the evidence of that statement for the purpose of establishing that the appellant had no reasonable belief in the complainant’s consent. So much is clear from the way that the prosecutor referred to the statement in his final address to the jury. That is why defence counsel sought to place an alternative interpretation upon those words other than an acknowledgement of wrongdoing.
Thirdly, because all three charged events were committed in similar circumstances — which the defence sought to portray as merely consistent with the usual ‘sexual dynamic’ for consensual sexual activity between the appellant and complainant — the jury’s acceptance of the appellant’s statement as his admission of wrongdoing on one occasion had the capacity to influence the jury’s view of his belief about consent in respect of all of the charged offences.
For these reasons, it was mandatory for the judge to give the jury the direction required by s 21 of the Act irrespective of whether either party requested or failed to request it. It is not necessary that we decide whether it might also have been an error not to give the additional direction pursuant to s 22 of the Act.
The failure to give the mandatory direction was an error or irregularity in the trial.[18] Further, for the reasons that follow, this Court could not be satisfied that the error could not have made a difference to the outcome of the trial.[19]
[18]Criminal Procedure Act 2009, s 276(1)(b). The admission of the evidence of incriminating conduct without the satisfaction of the two statutory preconditions was also an irregularity, although not one which the appellant relied upon as the foundation for the error relied upon in ground 2.
[19]Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Karam v The King [2023] VSCA 318, [210]–[230] (Beach, McLeish and Kennedy JJA).
It was not suggested, nor could it have been, that the error or irregularity could not have made a difference to the outcome of the trial. Evidence as to the state of mind of the appellant was, apart from the impugned statement, entirely a matter of inference from the circumstances of and surrounding the events, in the context of the nature of the relationship between the parties.
As mentioned, even on the complainant’s account, she and the appellant had had consensual sex on one or more occasions during the period of the alleged offending, even after the occasions of allegedly non-consensual sex, including sex that involved similarly forceful behaviour on the appellant’s part as was said to have occurred on the occasions of the charged acts. The prosecution and defence cases substantially pivoted on the contest between the competing inferences as to the appellant’s belief about the complainant’s consent to the sexual activity. As put in final address, the prosecution case strongly emphasised the ‘one particular piece of evidence’, namely the appellant’s statement, which was portrayed as indicative of a guilty state of mind.
For this reason, the judge’s failure to direct the jury that they could only treat the appellant’s statement as negating a belief that the complainant had consented if that was the only reasonable explanation for his statement, deprived the appellant of a most significant mandatory safeguard in the context of his trial. Accordingly, we had no hesitation in concluding that the error identified in ground 2 resulted in a substantial miscarriage of justice.
Ground 1
By ground 1 the appellant proposed to argue that the judge erred in failing to direct the jury not to engage in tendency reasoning, which failure resulted in a substantial miscarriage of justice. The appellant identified 15 individual statements made by the complainant about the appellant, about her relationship with him or about her and her children’s responses to him. That evidence as a whole, he argued, had the potential to be used by the jury to conclude that the appellant had a tendency to act in a particular way. He characterised that tendency as being ‘that the accused is an abusive, physically domineering and callous person towards all members of the family, who exerts physical and verbal violence to cause fear and to effect control over all of them but in particular the complainant’.
Section 97 of the Evidence Act 2008 prohibits the admission of evidence in any proceeding to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, unless two conditions are satisfied.[20] The first is that the party adducing the evidence gives notice in writing to the other party of their intention to do so. The second is that the court thinks the evidence will have significant probative value. The requirements are even more strict if the tendency evidence is to be adduced about an accused in a criminal proceeding. Such evidence cannot be adduced by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.[21]
[20]Evidence Act 2008, s 97.
[21]Ibid s101.
No notice was given by the prosecution of its intention to adduce tendency evidence. No determination was made by the judge whether the evidence identified by the appellant had probative value that outweighed any prejudicial effect on the accused.
According to the appellant, even though trial counsel did not request the judge to do so, there were substantial and compelling reasons why the judge should have given the jury a warning to only use the evidence for permissible purposes and not for any impermissible tendency purpose. Not to do so, the appellant argued, was an error.
The respondent denied that the evidence identified by the appellant was led as tendency evidence. It also denied that there was any perceived risk that the jury would engage in such impermissible tendency reasoning. According to the respondent, the evidence was a mixture of relationship and/or context evidence, part of the factual matrix, evidence adduced by the defence about other sexual encounters between the appellant and complainant to demonstrate similarities between these consensual sexual encounters and those the subject of the charges, and evidence that was irrelevant and which assumed no real significance in the case.
Since neither party requested a direction, one could only have been given had there been substantial and compelling reasons to do so. Not only was there a heavy burden on the appellant to show such reasons existed, argued the respondent,[22] the nature of the defence case meant that it was not possible for the appellant to discharge that burden. The defence case, the respondent pointed out, ‘embraced conduct by the appellant which might otherwise be seen as discreditable and used it in an attempt to bolster the credibility of the appellant’s subjective belief in consent’.
[22]Relying upon Dunn (a pseudonym) v The Queen [2017] VSCA 371, [6], [81]–[86] (Maxwell P, Beach and McLeish JJA); Dunn (a pseudonym) v The Queen [2017] VSCA 95, [22] (Tate JA).
It is not necessary for us to decide this ground. But it is appropriate to make the following comment.
There may well have been a good forensic reason for the defence not to seek a direction from the judge warning the jury against reasoning that the appellant had a certain tendency to be aggressive and controlling and was therefore the type of person more likely to have sex regardless of whether the complainant consented. The gravamen of the defence case was that a distinctive feature of this couple’s prelude to engaging in sexual activity involved physicality on the appellant’s part and resistance and submission on the complainant’s part. In other words, the same character attribute may potentially be deployed to make consent and belief in consent appear unlikely, if one view of it was taken, or in fact likely, if another view of it was taken. Inviting an anti‑tendency warning could, potentially, undermine or distract from the defence line of argument.
Even so, the potential for impermissible tendency reasoning squarely arises in respect of the evidence.
Without intending to be prescriptive, we would suggest that, upon the retrial of the appellant, careful consideration be given to whether some form of direction against impermissible tendency reasoning be requested by counsel.
Other proposed grounds
The third and fourth proposed grounds of appeal concerned the alleged danger of impermissible reasoning relating to the appellant’s Record of Interview. In that interview the appellant read a prepared statement but otherwise elected to make no comment to any further questions. An edited form of that interview was played to the jury. It featured the appellant reading his prepared statement in which he essentially conveyed his defence. He denied all allegations of wrongdoing and stated that at all times he believed the complainant to have consented to their sexual activity.
In our view there is no merit in the appellant’s contentions that an error occurred by the prosecution leading the evidence of the interview (ground 4) or that there was such risk that the jury might impermissibly draw adverse inferences from the appellant’s refusal to answer questions, beyond giving a prepared statement, that the judge was bound to give them a direction against doing so (ground 3). That said, the judge gave the jury very little direction regarding the content of the appellant’s interview. Assuming the same evidence is led on the appellant’s retrial, we suggest that the judge direct the jury that the appellant’s denial of the complainant’s allegations, and his claim that all sexual activity between them was consensual, is part of the evidence in the trial.
The final proposed ground was an allegation of an accumulation of errors arising from the errors identified in the preceding grounds. It need not be considered.
Conclusion
For the reasons stated, leave to appeal was granted, the appeal allowed and orders made as set out above.
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