Ugle v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0028

TROHNE JAI UGLE	Applicant
v
THE KING	Respondent

---

JUDGES:	TAYLOR, LYONS and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2025
DATE OF JUDGMENT:	15 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 102
JUDGMENT APPEALED FROM:	[2023] VCC 1986 (Judge Parrish)

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of two charges of rape – Crown case one of manifest non-consent – Whether direction on reasonable belief in consent should have included reference to whether the applicant took steps to find out whether the complainant was consenting – Whether direction reversed onus of proof – Whether direction invited a compromise verdict – Whether direction on reasonable belief in consent should have included direction on general assumptions as to the consumption of alcohol and flirtatious behaviour by a complainant – No error in direction – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Applicant behaved in a dysregulated manner outside the courtroom on the third day of the trial – Applicant was yelling, crying and flailing arms – Applicant physically escorted from County Court building by his counsel and mother – Applicant observed in that state outside the building by a juror – Assumption that entire jury would know of the incident – No application for discharge of the jury – Direction given as to applicant’s emotional distress – Whether judge should have made enquiry of a juror or jurors as to their knowledge of the incident – Whether incident was an irregularity in the trial incapable of amelioration other than by discharge of the jury – Whether terms of the direction given were adequate – No substantial miscarriage of justice – Leave to appeal refused.

Crimes Act 1958, s 36A; Jury Directions Act 2015, ss 6, 46, 47, 47C, 47G and 47I.

Maric v R (1978) 20 ALR 513; Percival v The Queen [2015] VSCA 2000; R v Halliday (2009) 23 VR 419; I v Western Australia (2006) 165 A Crim R 420; Damien Aubrey Platt v The Queen (2018) 58 VR 593; and Gilbert v R (2000) 201 CLR 414, referred to.

---

Counsel
Applicant:		Ms M Chalmers SC with Ms G Connelly SC
Respondent:		Mr R Gibson KC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
LYONS JA
KAYE JA:

Introduction

The applicant faced a trial in the County Court on an indictment alleging three charges of rape. The three offences alleged involved a single complainant and were said to have happened in quick succession during a single episode.
Charge 1 involved an allegation of penile/oral penetration. Charge 2 involved an allegation of penile/anal penetration. Charge 3 involved an allegation of penile/vaginal penetration.
The jury acquitted the applicant of charge 1. He was convicted of charges 2 and 3.
The applicant originally sought leave to appeal against conviction on the following two grounds:
GROUND 1: The trial miscarried due to the learned trial judge directing the jury that the ‘law directs that it should not be assumed that a reasonable belief that consent can be formed just because the personal drank alcohol and/or acted flirtatiously’ in circumstances where the defence was [that] there was a reasonable belief in consent (in relation to charges 1 and 3).
GROUND 2: The trial miscarried as a result of a juror(s), observing the accused having a significant and adverse reaction to the conduct of the trial outside the court room and:
(a) The learned trial judge’s direction was not capable of curing the prejudice to the accused in the circumstances.
(b) No discharge of the jury was sought by either counsel, nor a discharge on the Judge’s own motion was made in circumstances where there was a high degree of need.
At the hearing of the application the applicant sought leave to amend the first ground in the following manner:
A substantial miscarriage of justice was occasioned by erroneous directions on the element of reasonable belief in consent.
Particulars
(a)Directing the jury to ‘consider whether the accused took steps to find out whether the complainant was consenting or might not be consenting and if so the nature of those steps’ in circumstances where such direction had not been sought by the prosecution and had been objected to by the defence; and
(b)Directing the jury that ‘it should not be assumed that a reasonable belief in consent can be formed just because a person drank alcohol or acted flirtatiously’ in circumstances where
a. The crown case was one of affirmative non-consent; and
b.The defence did not rely on generalised assumptions about consent; and
c.The direction, in the terms given, addressed what the jury should believe about consent rather than its assessment of the nature of the accused’s subjective belief.
Despite the lateness of the proposed amendment and the absence of prior notice to the Court and to the respondent,[1] we have determined that granting leave to amend ground 1 is in the interests of justice.
[1]As a result the respondent was afforded time to make written submissions with respect to the proposed amended ground after the conclusion of the oral hearing.
For the reasons that follow, leave to appeal against conviction should be refused.

The offending alleged

In view of the proposed grounds of appeal it is not necessary to canvass the evidence in the trial in any detail. The following suffices.
The offending was alleged to have occurred in January 2020. The complainant, then aged 16 years, and the applicant, then aged 20 years, were previously unknown to each other.
On 21 January 2020 the complainant arranged to have a sleepover at her grandmother’s apartment with five female school friends. The complainant’s grandmother was away and the apartment was otherwise vacant. The mother of the complainant gave her permission for the sleepover to occur so long as it featured neither alcohol nor boys.
Despite these stipulations, both alcohol and boys did feature.
The evidence led at trial established that the complainant became intoxicated. There was some variance in the evidence as to the degree of that intoxication.[2]
[2]It was not an issue in the trial that the complainant was so affected by alcohol as to be incapable of consenting to any of the sexual acts alleged. See Crimes Act1958, s 36AA(1)(g).
As to the interactions between the applicant and complainant prior to the offences alleged, the complainant specifically denied sitting on the applicant’s knee. The weight of the evidence, however, tended to show that the complainant had been flirtatious with the applicant, including by sitting on his knee. Indeed the prosecutor addressed the jury on the basis that the better view of the evidence was that she had done so. There was also some evidence that the complainant had kissed the applicant on his lips, although she maintained that she had only done so on his neck.
At some point during the evening the complainant went into the bedroom to obtain a skirt. She then went into the bathroom to change. Her evidence was that she had difficulty fastening the buttons of the skirt because she was drunk and wearing false nails. She called out to one of her friends for assistance. The applicant then entered the bathroom.
The complainant asked the applicant to help do up her skirt. He closed the door and pushed her with some force down onto the toilet. The applicant then grabbed the back of the complainant’s head and put his penis into her mouth (charge 1). The complainant’s evidence was that she gave no observable indication that she did not consent. Her evidence was that she complied out of fear, thinking that she would be able to leave the bathroom when it was over. The applicant then picked up the complainant and bent her over so that her head was in the sink. He penetrated her anus with his penis for about 20 seconds despite her verbal protestation. The complainant’s evidence was that she was crying and saying ‘please stop, I don’t want to do this’ (charge 2). The applicant then penetrated the complainant’s vagina (charge 3). The complainant was menstruating and had a tampon in her vagina. The penetration caused the tampon to be ‘pushed up’ which caused the complainant pain.

Proposed ground 1 – Direction on reasonable belief in consent

Jury Directions Act 2015[3] discussion

[3]‘JDA’.

At the conclusion of the evidence the parties discussed the matters in issue in the trial with the judge.[4] One of those matters was the third element of the offence of rape, namely reasonable belief in consent.
[4]As is required under the JDA, Pt 3.
The judge referred to the Criminal Charge Book standard direction on that element. The terms of that direction instruct the jury that the prosecution has the onus to prove beyond reasonable doubt that, at the time of the sexual penetration, the accused had no reasonable belief in consent. This direction further instructs that there are three ways in which the prosecution may prove this and only one of the three ways need be established. The three ways are:
(a)The accused believed that the complainant was not consenting,
(b)The accused gave no thought as to whether the complainant was consenting, or
(c)Even if the accused may have believed that the complainant was consenting, that belief was not reasonable in the circumstances.
The Criminal Charge Book then tells the judge to summarise the arguments of the parties on these issues.
The judge expressed his understanding that the prosecutor wanted him to incorporate a JDA-sourced direction as to drunkenness and flirtatiousness.
This was a reference to s 47I of the JDA. This section concerns a direction on general assumptions not informing a reasonable belief in consent.[5] That direction is to the effect that:
(a)a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and
(b)if a belief in consent is based on a combination of matters including a general assumption of that kind, then, to the extent that it is based on that general assumption, it is not a reasonable belief.
[5]There was some argument at the hearing of the application as to whether s 47I of the JDA was applicable to the applicant’s trial. This is considered further below.
The foot of s 47I gives an example of a general assumption as an assumption that a person who gets drunk and flirts with another person consents to a sexual act with that other person.
Returning to the discussion, the prosecutor said that he had raised the issue of drunkenness (It later became apparent that the prosecutor was referring to the applicant’s drunkenness and a s 47(3)(b) JDA direction while the judge was referring to the complainant’s intoxication). The prosecutor said that after discussion with defence counsel he did not persist with it (that is, the request for the s 47(3)(b) direction). That was because the evidence at the trial was that everybody was drinking including both the applicant and complainant.
The judge then clarified his understanding that evidence of flirtation and drunkenness on the part of the complainant was being used by defence counsel to go to the issue of the complainant’s credit.
Defence counsel confirmed that the judge had understood the issue correctly.
The prosecutor then said that he had been at cross-purposes with the judge. He said that he had originally thought to seek a direction that the accused’s intoxication was not relevant to the reasonableness or otherwise of his belief in consent, but did not press the matter because there was no specific evidence that he was intoxicated, as opposed to merely having been drinking alcohol.
The prosecutor then stated he was seeking another direction in relation to intoxication, and briefly mentioned s 47I before the judge attempted to clarify the direction requested. The judge asked the prosecutor if the direction he sought was that referred to in s 47C(1)(d), namely the direction in s 47G(1)(c) as to irrelevant conduct in relation to the second element. That direction informs the jury that it should not be assumed that a person consented to sexual activity just because the person drank alcohol.[6] The judge queried whether this direction was still appropriate in a situation such as this one, where defence counsel was relying upon the complainant’s intoxication as relevant only to the issue of her credit. The prosecutor said the ‘short answer’ was yes, as a matter of ‘safety’.
[6]Relevantly, s 47G(e) defines that a person ‘acted flirtatiously’ as ‘irrelevant conduct’.
The judge said that his concern, notwithstanding the assumption that defence counsel would argue the complainant’s drunkenness and flirtatiousness were relevant to her credit alone, was ‘the view that the jury themselves might take’. Specifically, the potential for the jury to form the view that the complainant’s drunkenness and flirtation was a ‘welcome invitation’ for sexual conduct.
The prosecutor then submitted that the direction should be given.
Addressing defence counsel, the judge said he understood the defence position that the issues of the complainant’s drunkenness and flirtatiousness were relevant only to her credit (that is, her evidence about those issues was at variance with the weight of the rest of the evidence on those issues) and were not relied upon by the applicant as informing his reasonable belief in consent. The judge continued:
My great concern though is a jury, talking out the back, is, well, look, she’s very flirtatious. She was dancing around him. She had a lot to drink. You know, he’s what – he was 20 at the time, all that type of thing. That’s the risk, I think, unless I say something.
Defence counsel then said ‘well, perhaps if Your Honour makes it clear to them, as indeed I will, that that is precisely not what I am saying …’
The judge said that it was a ‘two-edged thing’ and that he would think about it overnight.
Defence counsel then addressed the standard charge on the element of reasonable belief in consent. He said the only evidence of the applicant’s reasonable belief in consent being relied upon was evidence of what happened in the bathroom. The primary argument to the jury would be that the quality of the complainant’s evidence was ‘so deficient’ that true facts could not be determined. It could never be found that the complainant was crying and making noise given the absence of anyone in the small flat giving evidence of hearing that. It followed that the prosecution could not prove the charges beyond reasonable doubt.
Defence counsel submitted that in the context of the trial there was no need to make reference to steps taken by the applicant to determine whether the complainant was consenting. This was because there was an absence of evidence as to whether steps were taken or not and any such reference would invite a factual compromise. When the judge stated that the prosecution would argue the absence of steps taken by the applicant was relevant to his belief in consent, defence counsel said such argument would reverse the onus. Defence counsel said this argument would give rise to the risk that the jury would find failure to take steps meant the applicant’s belief was not reasonable, even if they did not accept the complainant’s evidence as to her protestations in the bathroom.
The judge said he would think about that.

The judge’s charge

The judge provided the jury with a document setting out the elements of the three charges. The judge said that the prosecution was required to prove each element beyond reasonable doubt with respect to each charge before explaining those elements as they related to each charge.
When addressing the second element the judge gave a s 47G direction in the following terms.
The law directs that it should not be assumed that a person consented to a sexual act, just because the person in this case the complainant consumed alcohol and/or acted flirtatiously. That is not evidence of consent.
When the judge turned to the third element of reasonable belief in consent he correctly told the jury that the onus fell on the prosecution to prove beyond reasonable doubt that, at the time of the sexual penetration then under consideration, the accused did not reasonably believe that the complainant was consenting. The judge, again correctly, then delineated the three ways in which the prosecution could do so.
In relation to the third of those ways the judge continued as follows
Belief will be reasonable if there are reasonable grounds for a person in the position of the accused to hold that belief. You must consider all of the circumstances when dealing around the (indistinct) of the event, this rape, when deciding whether a belief in consent was reasonable or not.
In looking at the evidence, you should consider whether the accused took any steps to find out whether the complainant was consenting or might not be consenting, and if so the nature of those steps. Again the law directs that it should not be assumed that a reasonable belief about consent can be formed just because the person drank alcohol and/or acted flirtatiously.
It is important to remember that it is for the prosecution to prove beyond reasonable doubt at the time of the sexual penetration, whether it be Charge 1, 2 or 3, that the accused did not reasonably believe the complainant was consenting. If you are not so satisfied in relation to one or more charges, you must find the accused not guilty in relation to that charge. (Emphasis added)
It is the italicised sentences that are in issue in proposed ground 1.
No exception was taken to that portion of the charge during the trial.
Later in his charge the judge summarised defence counsel’s arguments on the evidence contradicting the complainant’s denials of flirting and being intoxicated. The judge continued:
I should quickly add that counsel for the accused did not refer to this evidence in respect of consent or reasonable belief in consent but submitted to you that [the complainant’s] denials in the face of that evidence, particularly (indistinct words) that she sat on the knee of the accused gives rise to issues of her credibility and reliability, which makes it particularly important to consider whether the complainant’s account of what occurred in the bathroom is an honest and reliable account.
That is important, ladies and gentlemen. As I said, the critical issue in this case is very much the concern [as] to whether or not the complainant gave an honest and reliable account of what occurred.
After reminding the jury as to the burden and standard of proof, the judge continued:
It boils down reasonably sharply, ladies and gentlemen, do you accept what the complainant said about what occurred in the bathroom, bearing in mind several things. [Namely] [h]er inconsistencies in relation to her evidence [and s]econdly, the improbability of what she said occurred[;] for argument sake, the way the neck was pushed down or the way the face was pushed down [into] the sink, and no one hearing any noise in a relatively small flat. So those types of events during the time of the alleged rapes and indeed the improbability of certain events, like the anal sex and (indistinct) anal penetration.
Perhaps more particularly her denials as to things that you may find on the evidence were the facts, that she may have been keen on the accused prior to the alleged rapes. She may have been flirtatious. She may have sat on the knee of the accused. Indeed evidence such as[,] for argument sake, it is only her evidence as to [when she] went to the bedroom, she went to the bedroom secondly. Where the evidence of many others was that the accused was first there and she followed.

Applicant’s contentions

The reformulation of proposed ground 1 meant that the applicant’s submissions at the oral hearing differed markedly from those in his written case.
As to proposed ground 1(a), the applicant submitted it was important to understand the issues before the jury. The prosecution case with respect to charges 2 and 3 was that the complainant’s evidence of affirmative, emphatic non-consent to the penetrations should be believed. The defence case was that the complainant should not be believed and that if she was not then ‘there was nothing left’. The complainant was the only source of evidence for what occurred in the bathroom. If she was not believed then that created an evidentiary void not only as to what had happened in the bathroom but also as to the accused’s state of mind.
The applicant submits, as argued by defence counsel to the judge, that in those circumstances it was both unnecessary and dangerous to make any reference to ‘steps taken’ by the applicant to ascertain whether or not the complainant was consenting. If the jury accepted the complainant’s evidence, there was verbal non-consent. If the jury rejected the complainant’s evidence then there was no evidence from which to determine whether or not steps were taken by the applicant. That risked a compromise verdict in which the burden of proof had been reversed. That is, the jury could have rejected the complainant’s evidence of emphatic verbal non-consent but reasoned that the applicant could not have had a reasonable belief in consent because there was no evidence that he took any steps to ascertain whether the complainant was consenting. The applicant argued that if there was no evidence from which the jury could make a finding about his subjective belief, he had to be acquitted.
As to proposed ground 1(b), the applicant argues that the error alleged occurred in the context of the error alleged under proposed ground 1(a). It is put that the vice in the impugned direction is that it focused upon what the jury should believe about consent rather than upon the applicant’s actual subjective belief. If the jury rejected the complainant’s evidence of emphatic verbal non-consent then there was no direct evidence of the applicant’s subjective belief in consent. The direction given by the judge was as to the jury’s own general assumptions rather than the applicant’s connotative state of reasonable belief and a general assumption on his part.
The applicant further submitted that this error was compounded by the s 47G direction given earlier with respect to the second element of consent, as extracted in paragraph [36] above.
With respect to the third element of reasonable belief in consent, it is submitted that the judge should have distinguished between a general assumption as to what constitutes consent and whether, if the applicant had a belief in consent, that belief was based solely on that general assumption. The applicant submits that the jury should have been directed in the following terms.
If you find he had a belief in consent, then in the context of this case you’ve heard evidence of flirting, and I said something to you earlier about that’s not evidence of element 2. I need to say to you, that if [you] think that was one of the circumstances that led to a belief in consent then I direct you that a belief in consent based solely on a general assumption about flirting and alcohol is not a reasonable belief.

Respondent’s contentions

With respect to proposed ground 1(a), the respondent submits that s 36A of the Crimes Act 1958 as to ‘reasonable belief in consent’ applied to the trial. The judge used the words from s 36A(2). It is argued that the effect of the provision is to focus on the evidence adduced in a trial that might form the basis for any reasonable belief in consent. It has two limbs which operate in tandem. These are first, the whole of the circumstances and, secondly, any steps taken to find out whether the other person consents.
It is submitted that the use by the judge of the phrase ‘took any steps to find out whether the complainant was consenting’ did not reverse the onus. The prosecution did not argue that the applicant had called no evidence as to the steps he had taken to ascertain whether the complainant was consenting.
The respondent further submits that it is of significance that defence counsel did not revisit the discussion with the judge prior to the charge nor take exception to that portion of it.
As to proposed ground 1(b), the respondent submits that s 47C(1), concerning directions by a trial judge on consent and reasonable belief in consent, is expressed in mandatory terms. Section 47C(f) refers to the giving of ‘a direction on general assumptions not informing a reasonable belief in consent (described in s 47I)’.
A s 47I direction was given by the judge in terms closely following the words of the section. The respondent argues that the effect of s 47I is to dispel a ‘rape myth’ about a complainant who is drunk and/or has acted flirtatiously with an accused. The giving of the direction is not dependent on counsel for an accused explicitly relying upon generalised assumptions about the circumstances in which people consent to a sexual act. It is submitted that, in this case, the prominence in the evidence as to the complainant’s intoxication and flirtatiousness with the applicant meant the direction was necessary.
The respondent further submits that it is immaterial that the prosecution case was one of verbal emphatic non-consent. The prosecution was still required to prove the third element. Even though defence counsel made use of the evidence concerning the intoxication of and flirtatious behaviour by the complainant as relevant only to her credit, the s 47I direction was necessary to guard against the risk that the jury might nonetheless erroneously use general assumptions when considering that element.

Discussion and analysis

Proposed ground 1(a)

Section 36A of the Crimes Act, as in operation in 2020, was, relevantly, in the following terms:
(1)Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.
(2)Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents … to the act.
The section is directed towards the reasonableness or otherwise of a belief held by a person that another person consents to sexual activity. The two limbs of this section are interdependent. The quality of reasonableness is to be determined by the circumstances which include any steps taken by that person to ascertain whether the other person is consenting. It follows that both the absence of steps as well as the character of any steps is relevant to the assessment of reasonableness of a belief in consent as part of the ‘circumstances’ of the case.[7]
[7]The section has since been amended as part of the ‘affirmative consent’ reforms. In particular s 36A(2) now states that A’s belief that B consents to an act is not reasonable if, within a reasonable time before or at the time the act takes place, A does not say or do anything to find out whether B consents to the act.
In this case that meant reasonable belief in consent on the part of the applicant was a matter to be determined by the jury from all of the circumstances in the case, including whether any steps were taken by him to find out if the complainant consented. The judge directed the jury accordingly.
The complainant gave evidence that she gave no outward sign of non-consent with respect to charge 1 but was emphatic in her verbal non-consent with respect to charges 2 and 3. Throughout she described the applicant’s conduct in terms inconsistent with a conclusion that he took any steps to find out whether she was consenting to any of the charged acts. It is to be recalled that defence counsel told the judge that the only evidence of the applicant’s reasonable belief in consent relied on was the evidence of what happened in the bathroom. Those were the ‘circumstances’ in which the applicant’s subjective belief fell to be assessed.
In particular, the complainant said that after the applicant entered the bathroom he pushed her onto the toilet seat, pulled down his jeans and pulled out his penis from his boxer shorts. The complainant said that he grabbed the back of her head and forcefully pulled it down so that his erect penis entered her mouth. That lasted for about a minute before the applicant picked her up and turned her so that her head was bent over the sink. At that point she said ‘please stop, I don’t want to do this, please stop’. The applicant had one hand on her head and the other around her waist. She was crying. The applicant then pulled down her underwear and put his penis in her anus. It was painful and she was still crying. His penis ‘went back and forth’ for about 20 seconds before he removed it. While the complainant was still bent over the sink he then put his penis in her vagina. She said ‘ow’ because the tampon she was wearing was ‘pushed up’. The complainant said that when he let go of her neck, she ‘fell to the ground’. She was crying ‘a lot more than before’.
The jury was required to consider all three elements with respect to each of the three charges. The defence to each of the charges was different. The applicant denied the anal penetration in charge 2 occurred. He accepted that the penetrations subject to charges 1 and 3 occurred but argued each had done so with consent and reasonable belief in consent.
The applicant was acquitted of charge 1. The differential verdicts are explicable only on the basis that the jury were not satisfied that the prosecution had proved that the applicant did not have a reasonable belief in consent with respect to the first oral penetration at a time when the complainant was neither crying nor saying ‘no’. The quality of her evidence as to her own actions and those of the applicant with respect to all three charges was otherwise identical. The jury must have accepted the complainant’s evidence of the anal penetration. Her evidence of manifest verbal non-consent following the oral penetration was relevant to both the second and third elements of rape of charges 2 and 3. The complainant’s evidence could not be quarantined as relevant only to the issue of consent. It was evidence both of non-consent and was also part of the circumstances, along with her description of the applicant’s actions, to be used by the jury to ascertain whether the applicant had any belief in consent and, if so, whether it was reasonable. The verdict meant that the jury accepted the complainant’s evidence that she verbalised non-consent as she was crying and the applicant was behaving in a manner inconsistent with the taking of any steps to ascertain if she was consenting.
Importantly, the prosecutor did not expressly or implicitly suggest that if the jury rejected the complainant’s evidence as to verbal non-consent then the applicant nonetheless did not have a reasonable belief in consent because he took no steps to ascertain whether or not she was consenting. Further, the judge correctly and repeatedly directed the jury as to the burden and standard of proof.
The direction given was orthodox and explained to the jury the meaning of reasonable belief in consent drawn from the interdependent limbs of s 36A of the Crimes Act. It did not reverse the onus of proof, nor invite a compromise verdict. If the jury rejected the complainant’s evidence as not credible then there was no ‘evidentiary void’ on the third element. Such rejection would have necessarily meant that the jury was not satisfied on element 2 and, therefore, on element 3.

Proposed ground 1(b)

As a preliminary matter, we note that at the hearing of the application an issue was raised as to whether s 47I of the JDA was applicable to the trial or whether the previous s 47(3)(c) applied.
Section 47I is in the following terms:
47I Direction on general assumptions not informing a reasonable belief in consent
For the purposes of this Division, a direction on general assumptions not informing a reasonable belief in consent is a direction that informs the jury that—
(a)a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and
(b)if a belief in consent is based on a combination of matters including a general assumption of that kind, then, to the extent that it is based on that general assumption, it is not a reasonable belief.
Examples
Each of the following is an example of a general assumption of the kind referred to in this section—
(a)a general assumption that a person who gets drunk and flirts with another person consents to a sexual act with that other person;
(b)a general assumption that a person who dresses in a way that is considered sexually provocative, and who visits another person's home, consents to a sexual act with that other person.
It is a direction that must be given pursuant to s 47C(f) by a trial judge if the judge considers there are good reasons to do so.
The former s 47(3)(c) was in the following terms
…
(3)For the purposes of subsection (2), the prosecution or defence counsel may request that the trial judge—…
(c)direct the jury that—
(i)a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and
(ii)a belief in consent based on a combination of matters including such a general assumption is not a reasonable belief to the extent that it is based on such an assumption; …
As is apparent, the two sections are in near identical terms. The former s 47(3)(c) lacked the examples of general assumptions that now appear at the foot of s 47I.
It is unnecessary to detail the history of legislative amendments here. A review of the relevant commencement dates of the amending legislation indicates that for a short period, including the time at which the applicant’s trial occurred, both the former s 47(3)(c) and s 47I were on foot. In any event, the differences between the two sections are without relevance. The direction under both sections is designed to make clear that stereotyping opinions about sexual behaviour are not to be taken into account when assessing the reasonableness of a belief in consent. There will be ‘good reasons’[8] to give the direction whenever the possibility of a general assumption about the circumstances in which people consent to a sexual act arises in a trial.
[8]JDA, s 47C(1).
Turning now to the merits of proposed ground 1(b), in this case the applicant, in essence, complains that the direction given by the judge conflated a direction about a general assumption concerning intoxication and/or flirtatiousness as relevant to consent (element 2) with whether any part of the applicant’s belief in consent was based on that general assumption and, therefore, not reasonable (element 3).
In the trial the evidence suggested that the complainant was both intoxicated and had behaved flirtatiously with the applicant prior to the offending alleged. The judge was clearly cognizant of the importance of general assumptions about intoxication and flirtatiousness as to both consent and reasonable belief in consent in light of this evidence. The judge was correct to guard against the intrusion of false assumptions about the sexual behaviour of a drunk 16 year old girl alone with a 20 year old young man to whom she had previously displayed partiality in the jury’s consideration of elements 2 and 3.
The judge addressed the elements of the charges seriatim and correctly distinguished the respective arguments for each element across the three charges. He did so with the aid of a document that clearly delineated the elements. When he reached element 2 the judge said, correctly, that the law is that drunkenness and/or flirtatious behaviour by a complainant is not evidence of consent. Shortly thereafter the judge turned to element 3. He prefaced everything that followed by explaining:
The third element relates to the accused’s state of mind about the complainant’s consent. The prosecution again must prove beyond reasonable doubt that at the time of the sexual penetration, the accused[,] whether it be in relation to charge 1, charge 2 or charge 3, did not reasonable(sic) believe that the complainant was consenting.
The impugned sentences in the judge’s charge extracted at [38] above must be understood in that context. Having already told the jury when giving directions about element 2 that the complainant’s consumption of alcohol and flirtatious behaviour towards the applicant did not equate with her consent to sexual activity with him, the judge directed the focus of the jury to the applicant’s state of mind. The judge then directed the jury to consider all of the circumstances and whether the applicant took any steps and, if so, the nature of those steps, to find out whether the complainant was consenting. The judge then gave the s 47I direction. The judge did not use the precise words of s 47I. He was not required to do so.[9] The judge did say that ‘it should not be assumed that reasonable belief about consent can be formed just because the person drank alcohol and/or acted flirtatiously’. In the context of the trial and the charge as a whole, the jury could have been in no doubt that in this direction:
(a)the ‘reasonable belief’ referred to the belief, if any, held by the applicant that the complainant was consenting,
(b)‘the person’ who drank alcohol and/or acted flirtatiously was the complainant, and
(c)‘just because’ meant the only reason founding the belief.
[9]JDA, s 6.
There was no error in the charge. Contrary to the submission by the applicant, it could not have been understood by the jury to have been directed to the element of consent (element 2). It was clearly directed to the element 3, that is the reasonableness of the applicant’s belief in consent.

Conclusion on ground 1

Ground 1 cannot succeed.

Proposed Ground 2 – behaviour of applicant outside the courtroom

Factual background

The jury empanelled in the trial of the applicant was the third jury to consider the charges. The juries in the first two trials were both discharged without verdict.
On 9 August 2023 – the third day of the applicant’s trial – the jury concluded watching the audio visual recording of the evidence of the complainant. At 11:33 am they were sent to the jury room for a 20-minute break. In their absence, there was a lengthy discussion between the judge and counsel as to the order in which the recorded evidence of other witnesses (which was drawn from both the first and second trials) would be played and the potential unfairness to the applicant if the order was altered.
The following exchange then occurred.
PROSECUTOR And I think Your Honour deserves a cup of tea.
HIS HONOUR The only thing I’ve learnt so far ladies and gentlemen and I have teenage sons, I sort of missed having daughters but sometimes I’m not sure whether I missed a lot. All right. Let’s get the jury in.
At that point, the judge’s associate said something indistinct and the judge asked if everything was alright. The prosecutor asked if the accused needed a break. The accused himself said ‘I need a break. I need a break.’ As the time was 12:17 pm it was discussed that the lunch break could be taken and court resumed at 1:30 pm. The judge asked his associate to go to the jury and ask if an early lunch was satisfactory and, if so, to let the jurors go for the lunch break. The judge instructed his associate not to tell them why lunch was to be early.

As the associate did so, the judge said ‘I perhaps should not have made that remark about teenage daughters, but I withdraw it.’ The judge then asked the applicant’s mother – Karla Hart, then in the courtroom – if there was anything particularly wrong with the applicant or he was just upset. Ms Hart said that it had been many, many years and the judge probably read the report.
That was a reference to the effect the previous inconclusive trials had had upon the applicant and also to the report of Richard Taylor, a clinical psychologist dated 10 July 2021. That report said that the applicant had been ‘enmeshed within the structure and process of the legal system which he experienced as negatively predisposed towards him’ since 2020. It further said that the applicant was experiencing ‘enhanced mental health disability, anxiety and insecurity’ and was in a state of ‘deep existential malaise’.
When the associate came back, the judge told counsel that lunch would be taken early. Defence counsel said that he would approach the applicant. The judge said that he could go straight away.
Of that incident in the courtroom the judge later said:
Look, to be quite frank, I watched him. He deteriorated as they say before my very eyes. He just went down very quickly.
When court resumed at 1:33 pm the applicant was not in court. Defence counsel made an application that the matter be adjourned to the following morning without the jury being brought into the court to avoid the noticeable absence of the applicant. That application was not opposed by the prosecution. The judge instructed his tipstaff to release the jury for the day after informing them that a legal matter was being discussed.
What had happened in the interim is revealed by four sources: what defence counsel and the prosecutor each told the judge upon court reconvening at 1:33 pm and what each of Karla Hart and Gail Faith Lister deposed in affidavits affirmed for the purposes of this application. As already noted, Ms Hart is the applicant’s mother. Ms Lister is a family friend.
Defence counsel told the judge that shortly after the matter was stood down for lunch the applicant began to behave in a ‘concerning’ way. Counsel said that he did not doubt that the incident would have been heard throughout the entire foyer and first and second floors of the County Court. In answer to the judge’s question defence counsel said that the applicant was then with his mother at his accommodation and was still very upset and distraught.
Counsel then said:
Most unfortunately after about 20 minutes or thereabouts of the situation persisting with tears and my client clearly distressed outside, we were encouraged by security staff understandably to leave the court building. … I believe that was the best option because I was concerned that my client’s behaviour … could see him for instance arrested.
The judge asked if the accused was being ‘persistently assertive’ in addition to yelling and making noise. Counsel said that he was not but that counsel ‘was very concerned about the possibility that an interaction with security staff could lead to that’. Counsel explained that the applicant does not react positively to confrontation when distressed. Counsel also said that the applicant suffers from recurring panic attacks and ‘really struggles to moderate his behaviour’.
Counsel continued
... what I could get from him is that he was concerned that what happened between my learned friend and I in terms of that issue about the calling of witnesses up, he was concerned that that might result in the matter being adjourned again. That’s as best I can tell what caused his concern if you like.
The judge then asked if there was any potential that anyone on the jury would have seen the applicant’s actions outside of court. Counsel replied that it was ‘worse than that’ and explained that a particular juror had seen some of the incident as the applicant went out of the revolving door of the County Court building. At the time the applicant was visibly distressed. His mother supported him by his left arm and counsel by his right arm. In that formation they walked down the stairs (towards the William Street footpath) and turned right. The juror was approaching them from about 100 metres away. Counsel said that the juror undoubtedly recognised both himself and the applicant and observed the latter in a visibly distressed state. Counsel said his ‘recollection is that [the applicant] was making large gestures with his arms, covering his face and saying various things about the process’.
The prosecutor told the judge that he was in the foyer downstairs and heard yelling coming from the direction of the courtroom. (The trial was being held in courtroom 1.8 on the first floor of the County Court building.)[10]
[10]At the hearing of the application counsel for the applicant submitted that the trial was heard in a courtroom on the third floor of the County Court in Melbourne. Records of the County Court indicate that the courtroom was in fact located on level 1. As the trial judge assumed that all jurors had in some way witnessed or been informed about the applicant’s conduct and that the part of the incident that occurred inside the building could have been heard on the lower levels, this discrepancy is immaterial.
Ms Hart, in an affidavit affirmed 16 February 2024, said that she and defence counsel were trying to get the applicant to calm down outside the courtroom, but he could not do so. She described him as ‘really upset and angry, saying things like “why does he want to put me in jail”, “I didn’t do this”, “why am I going through this?”, “I’m tired of this, why do they get to change their statements, it’s all lies” etc’. Ms Hart said that defence counsel told the applicant several times that the jury might hear him but the applicant was ‘not taking anything in’. As they went outside, defence counsel told security officers that he was handling the situation.
Ms Hart said that after they went outside the group was headed to the chambers of defence counsel. They turned right out of the revolving door. The applicant was ‘still crying, he was moving his arms around, really emotional and distressed, angry, frustrated’. Ms Hart said that she saw a juror walking towards them. The juror was with another person, but Ms Hart did not focus upon the face of that person. The juror saw the applicant upset and defence counsel and herself trying to help him.
Ms Lister, in an affidavit affirmed 16 February 2024, said that defence counsel and Ms Hart, on each side of the applicant, attempted to calm him but it had the opposite effect. She said that the applicant shouted and cried loudly in the foyer and was jerky in his movements. She described him as swinging his arms around, lashing out with his hands and arms, jumpy and constantly moving in ‘unpredictable and unpatterned’ movements. He was flailing his body and ‘taking up a lot of space’. Ms Lister said that the applicant called out loudly as to how unfair the process was. The loud shouting was incoherent due to his sobbing and heavy breathing.
Ms Hart said that defence counsel and Ms Hart tried to get the applicant out of the building as his behaviour was attracting attention, including from the security guards. She said that once they were outside the building one of the jurors walked past as the applicant was ‘screaming out and crying and swinging his arms pacing in small jumpy steps’ with defence counsel and his mother trying to calm him.
Returning to the discussion in court, defence counsel told the judge that he had spoken to the applicant about the encounter with the juror after they reached his chambers and had also spoken to others. He did not have any instructions with respect to an application to discharge the jury and said that a direction from the judge would be needed immediately upon resumption of court in the morning. Counsel said that he would discuss that with the prosecutor overnight and would produce a draft direction to the effect that ‘a criminal trial is a stressful process and this trial in particular has lasted longer than usual’.
The judge said that the situation would need to be addressed ‘one way or the other’. The judge said that he was concerned that ‘even now’ in the jury room the juror concerned was discussing her observations with the other jurors. The judge continued
... you can imagine comments being made by that and they could go from one extreme to the other. You know, as taking the view I suppose, and I’ve not no idea, but the risk is it could go, ‘oh he’s finally getting his just desserts, he’s clearly upset’ or the other extreme, ‘well he’s gone through this, and you know, (indistinct) of the complainant and he has to go through all this. I don’t blame him, he’s very upset’.
Defence counsel said that it was for that reason that there needed to be neutrality in the direction given.
Turning to the prosecutor the judge said:
I think I have to work on the assumption, do I not, that at least one and I dare say given human nature, now probably all the jury would be – have some idea that the accused was not in a good state if I could put it that way.
The prosecutor agreed. He also said that he agreed with defence counsel that there needed to be a ‘very forceful but neutral direction’ in relation to stress upon an accused person. The judge remarked that he would be surprised if the jury had not noticed some things about the applicant’s demeanour in court throughout the trial. The judge himself had observed him display a ‘hung dog look’ and move about during the evidence.
Overnight the prosecutor and defence counsel drafted a proposed direction. The judge delivered the agreed direction to the jury upon them entering the courtroom at 10:44 am. It was in the following terms.
Good morning ladies and gentlemen. First let me apologise yet again for yesterday afternoon. The parties and I were discussing a variety of matters, some of which will be raised now and as I’ve said to you earlier, I’m the judge of the law and indeed when there’s a dispute I have to hear what either side says and make some sort of ruling and that’s been some time doing that yesterday.
But what I want to do now is to give you a direction and it is important as any direction is and please abide by what I say by taking it on board and I’ll read this because it’s important that I get it word for word.
A criminal trial is a stressful and often emotional process for all involved, including of course an accused. This case is no exception. Indeed, the length of the case and the fact there has been a previous trial that was unable to conclude probably means that this case has been more stressful and emotional than many others. I say this because some of you may have noticed that at times in court the accused has shown emotions and on occasions some signs of distress. This may continue and it is not unusual in a trial such as this. Some of you may have seen or heard that the accused was visibly distressed outside of court yesterday.
Although that’s common, there are occasions when jurors observe an accused person outside of court in a distressed state. Now, importantly, I direct you that the emotional response of the accused to the trial process, including to any evidence called during the trial and any signs of distress or the like on the part of the accused are that (sic) inside court or outside court is first and foremost not evidence and, as such, must be disregarded by you. Must be disregarded by you. And secondly, and perhaps more fundamentally, no rational inference could ever be drawn from the emotional state of an accused person inside or outside the court.
It would be impossible to rationally conclude the reason for the emotions or the distress. That sort of thinking would amount to speculation. You must not speculate. The emotional state of an accused person inside or outside court could never logically support either the prosecution case or the defence case. In this case, I direct you, you must disregard any observations of this kind and again direct you that you must only decide this trial on the evidence and only the evidence as I’ve said many times. And finally, ladies and gentlemen, I said this earlier in the opening remarks to you and it’s important to say it again.
Further, there is no room in your deliberations for any consideration of any sympathy or any bias for or against any party in these proceedings. You are to assess the evidence rationally without bias or sympathy for any party. So, bear that in mind ladies and gentlemen.

Applicant’s contentions

The applicant contends that nothing short of the discharge of the jury was capable of curing the prejudice to him arising from the jury’s knowledge of his ‘distressed and aggressive’ behaviour outside of the courtroom. The applicant characterises that behaviour as an irregularity in the trial. It is put that, notwithstanding the direction given, this Court cannot be satisfied that the irregularity did not affect the verdict and that the jury would have come to the same conclusion had the irregularity not occurred.[11]
[11]Maric v R (1978) 20 ALR 513 (‘Maric’).
That contention is made by analogy with authority concerning a jury being made aware of an accused’s bad character by the inadvertent revelation of prior convictions.
Several matters are argued in support of that contention.
First, the nature of the irregularity. It is argued that the applicant’s behaviour was not limited to his emotional distress near the revolving door of the County Court known to have been observed by one juror. It was prolonged conduct, lasting some 20 minutes inside the building. It involved loud shouting, agitation, anger and distress as well as physical gesticulation. It could be heard throughout the first two levels of the building. It attracted the attention of security staff.
Secondly, and relatedly, the judge failed to make any enquiry of any juror as to whether the part of the incident that occurred within the County Court building – and which lasted some 20 minutes – had been observed by a juror and was thereby known to the jury or a subset of it.
Thirdly, the applicant’s conduct was serious in the context of the contested issues. The complainant’s evidence was that she had been scared of the applicant and he had been physically forceful with her. The prosecutor in his closing address emphasised the difference between the naïve and drunk 16 year old complainant and the older, larger, adult, male applicant. The applicant’s dysregulated, angry and aggressive behaviour during the incident, if known to the jury, presented a risk, it is argued, that the jury would form a highly prejudicial view that he was unable to control himself, was an angry and aggressive person or was physically intimidating or confronting.
Fourthly, the irregularity occurred early in the trial, on the morning of the third day. This favoured a discharge of the jury despite the ‘understandable concern’, particularly by defence counsel, that the applicant would then face a fourth trial and further delay – the prospect of which caused him considerable stress.
In the event that this Court is of the view that the prejudice occasioned by the irregularity was capable of amelioration by judicial direction, the applicant further contends that the direction in fact given was deficient. It is argued that the direction referred only to ‘emotional distress’ and not to an accused person being angry and shouting. The direction did not address the potential that a juror or jurors had been frightened by the applicant’s behaviour.

Respondent’s contentions

The respondent contends that any prejudice arising from the applicant’s distressed behaviour in and near the County Court building was capable of being ameliorated by judicial direction and, further, was so ameliorated by the terms of the direction in fact given.
The following matters were argued to support that contention.
First, the applicant’s behaviour was an ‘incident’ and not an ‘irregularity in the trial’. The respondent argues that the incident was not analogous with the situation where an accused’s bad character is inadvertently revealed to a jury. In any event, the applicant received a good character direction that specifically stated that he had no prior convictions for any type of sexual offending or violence related offending.
Secondly, the nature of the incident itself. Although it involved yelling and physical gesticulation, defence counsel disavowed to the judge that the applicant was behaving in an overtly aggressive way inside the building. His concern to escort the applicant outside was to avoid a potential confrontation with security officers. The incident, both inside and out, was a display of emotion. Any risk that the jury would reason that the applicant’s state of upset and distress at the trial made it more likely that he engaged in the alleged acts of rape at a party is negligible.
Thirdly, it would not have been appropriate for the judge to conduct an enquiry with the juror who had observed the incident outside the revolving door. The judge, in effect, ‘assumed the worst’ in so far as he assumed that the entire jury would be aware of it. It is merely speculative to assume that any juror heard or observed the applicant’s behaviour inside the building. Even if a juror had, the comprehensive direction given must have been understood by the jury to cover the entire incident.
Fourthly, the very experienced defence counsel was clearly alive to the issue of a possible discharge of the jury. After overnight reflection, counsel sought not a discharge but a specifically worded direction. The prosecutor joined in that submission. It was given in the terms sought. The judge told the jury that the direction given was ‘[a]s important as any direction is’ and instructed the jury to ‘tak[e] it on board’. There is no reason to assume that the jury did not do so, particularly as the applicant was acquitted on charge 1.
Fifthly, the incident occurred on day three of the trial. It was another nine days until the jury delivered its verdicts, being the twelfth day of the trial. A significant period had elapsed between the incident and the jury’s deliberation. Again, the acquittal on charge 1 indicates that the jury did not reason that he was guilty of charges 2 and 3 because of an assumption based on his behaviour during the incident that he was an angry or aggressive person.

Discussion and analysis

We turn first to the nature of the legal enquiry raised by this proposed ground.
(1)The legal test
The applicant accepts that the forensic choice of his trial counsel to seek a direction concerning his out of court behaviour, rather than a discharge of the jury, is a hurdle in his application. Nonetheless the question for this Court is whether the failure of the judge to discharge the jury gave rise to a substantial miscarriage of justice.[12]
[12]Percival v The Queen [2015] VSCA 2000 [64] (Redlich, Weinberg and Osborn JJA) citing Maric.
The applicant placed heavy reliance upon the decision of this Court in R v Halliday.[13] In that case the appellant’s prior convictions were inadvertently placed before the jury when copies of the presentment given to the jury during the prosecutor’s final address had a second presentment attached. The offending material was retrieved but had been seen by at least one juror.
[13](2009) 23 VR 419 (Buchanan, Ashley and Weinberg JJA); [2009] VSCA 195 (‘Halliday’).
The Court in Halliday quoted the observation of Toohey, Gaudron, Gummow and Kirby JJ in Crofts v R[14] that:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends on the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of judicial direction designed to overcome its apprehended impact.[15]
[14](1996) 186 CLR 427 (Dawson, Toohey, Gaudron, Gummow and Kirby JJ); [1996] HCA 22 (‘Crofts’).
[15]Crofts, 440 cited in Halliday, [68].

The Court held that there was no inflexible rule requiring a jury to be discharged whenever evidence of bad character is inadvertently placed before a jury. The question for the trial judge is whether, in all the circumstances, there is a high degree of necessity for the jury to be discharged. Those circumstances include how consequential or otherwise the bad character evidence is in the context of the trial.[16] Citing Maric, the Court in Halliday said the test for determining whether wrongful admission of evidence has led to a miscarriage of justice was whether the Court
… could be satisfied that the irregularity had not affected the verdict, and that the jury would certainly have come to the same conclusion had that irregularity not occurred.[17]
[16]Halliday, [60], [65].
[17]Ibid, [66].
We do not accept that the inadvertent revelation of an accused’s bad character through dissemination to the jury of his or her prior convictions is factually analogous with a juror witnessing an accused in a dysregulated emotional state outside the courtroom.
The revelation of prior convictions is clearly an irregularity in the trial process. That an accused has, on previous occasions, been found guilty by a court of criminal behaviour is conclusive evidence of bad character. It is likely to have a powerful effect on a jury and may, depending on the nature of the prior convictions and the issues in the trial, undermine the fairness of the trial. The temptation of impermissible tendency reasoning is very real.
An accused’s emotional or angry behaviour in the precinct of a court is not wrongfully admitted evidence and is conclusive of nothing. While such an incident is distressing and unfortunate, it is not accurate to describe it as an irregularity in the trial. Depending on its nature and what was observed by a juror or jurors, or otherwise known to the jury, the behaviour might or might not provoke an opinion about the accused. Further, such opinion, if it existed, would not necessarily be adverse to the accused. It might be one of concern or perhaps even pity. In any event, it would not operate on the jury in the same manner as proven prior criminal behaviour. Accordingly, impermissible tendency reasoning is much less likely to arise.
That said, we do accept that in this case it is necessary to examine whether the jury’s knowledge about the applicant’s out of court behaviour was so adverse to the fairness of the trial that the failure to discharge the jury occasioned a substantial miscarriage of justice. As explained in Halliday, that depends upon an analysis of the nature of the incident (and here the state of the jury’s knowledge of it) and the connection between the incident and the issues in the trial. It further depends upon whether the direction given was sufficient to guard against any unfairness such as to permit the conclusion that the incident did not affect the verdict.
(2)The nature of the incident
It is beyond doubt that for an extended period of time the applicant was in a state of extreme distress. He was crying, breathing heavily, yelling, making comments about the court process and moving his arms and body around unpredictably. The noise occasioned could be heard throughout the foyer of the County Court building and at least on the first two floors. That behaviour persisted for some 20 minutes inside the building. It was sufficient to attract the attention of the security staff. The same behaviour continued once defence counsel and Ms Hart, together with Ms Lister, escorted the applicant outside. There it persisted long enough for a juror to have walked towards it over the course of about 100 metres.
While the whole incident was undoubtedly a ‘scene’ that would have attracted the attention of anyone in the vicinity, it is significant that only Ms Hart described the applicant as being ‘angry’ and did so as part of a suite of connected adjectives – ‘upset and angry’ and ‘really emotional, distressed, angry, frustrated’. Indeed defence counsel disavowed that the applicant had been ‘persistently assertive’. That the applicant’s behaviour attracted the attention of – but not intervention by – the security staff lends credence to that observation. Indeed defence counsel told the judge that he had been concerned to avoid interaction with security staff to prevent assertive behaviour by the applicant if confronted. It is also significant that an analysis of the four sources describing the incident shows the applicant’s behaviour inside the building was the same as that on the footpath outside. That is, he was crying, yelling, moving his arms and body and covering his face.
Accordingly while the incident involved quite extreme emotional dysregulation, it is incorrect to assume that the applicant’s manifest upset, distress and agitation during the incident was an unmistakable overt display of anger or aggression. That is not to deny that anyone witnessing it would be startled or distressed by it.
(3)The jury’s knowledge of the incident
It is clear that a single juror observed the applicant’s behaviour outside the building on the William Street footpath. That juror did so over the time it took her to walk about 100 metres. The juror walked in company with another person. Neither defence counsel nor the applicant’s mother said they recognised the other person to be a juror. In any event the judge proceeded on the basis that the juror who witnessed the incident outside would have told the rest of the jury of her observations.
The applicant submits that the judge should have made an enquiry as to whether any (other) juror witnessed the incident for the time that it occurred inside the County Court building. While undoubtedly a trial judge has the power to question a juror ‘in order to ensure that the judge properly understands any situation that has arisen that raises the spectre of possible bias’,[18] it was not necessary to do so in this instance.
[18]I v Western Australia (2006) 165 A Crim R 420, [16] (Steytler P); [2006] WASCA 204; Damien Aubrey Platt v The Queen (2018) 58 VR 593 (Tate, Whelan and Niall JJA); [2018] VSCA 276.
As explained above, the nature of the applicant’s behaviour outside the building was not markedly different from that inside it. And, although it took some 20 minutes for defence counsel, Ms Hart and Ms Lister to escort the applicant outside, it is merely speculative that a juror would have observed or heard the applicant for such an extended period. Any juror who did not leave the building for lunch at 12:30 pm would have remained in the sound proof jury room. Any juror who did leave the building for lunch at 12:30 or thereafter would have done so via a dedicated, non-public lift and would only have been in the foyer for the period it took to walk the short distance between the reception desk and the revolving door on the ground floor of the County Court. Even assuming such a journey was slowed by a juror hearing or seeing the applicant’s distress, that juror would have seen and/or heard what the juror outside the court building saw and/or heard. Further, as we have said, the judge was prepared to ‘assume the worst’. That is, the judge assumed that the entire jury would know what the juror saw on the William Street footpath. In all the circumstances of the case it was immaterial whether that knowledge was also based on further direct observation of the same type of behaviour by different juror (for whatever period within the 20 minutes) as well as the reportage of the single juror.
(4)Connection between the incident and the issues in the trial
The applicant’s argument that there was a risk that the jury would form the view he was unable to control himself, was an angry and aggressive person or was physically intimidating or confronting from his behaviour during the incident is largely dependent upon the characterisation of that behaviour as angry and aggressive behaviour. For the reasons that we have explained, that characterisation cannot be accepted. While his behaviour during the incident was dysregulated and emotional, it was not belligerent.
Even assuming that the jury formed any view adverse to the applicant arising from the incident, the jury were given a specific direction about it (considered further below). The jury was also told that the applicant was of good character and, specifically, he did not have any prior convictions for sexual or violent offences. Further, the prosecutor’s arguments concerning the difference between the naïve and drunk 16 year old complainant and the older, larger, adult, male applicant applied with equal force to each of the three charges on the indictment. That the jury acquitted the applicant of charge 1 illustrates that it did not allow any view about him formed from the incident (and retained despite the direction) to foreclose rational analysis of the evidence.
(5)The direction
Defence counsel in the trial was cognizant not only of the applicant’s welfare but also the possibility of a jury discharge. He made a considered overnight decision that the situation could be adequately dealt with by judicial direction. Counsel did so as an eye witness to the applicant’s behaviour and the encounter with the juror on the footpath. Counsel did so on the assumption that the entire jury knew the nature of the applicant’s behaviour.
Our justice system assumes that juries obey instructions given to them by trial judges.[19] As we have said, to the extent that any prejudice was likely to arise from the incident, the acquittal on charge 1 indicates that the direction given had the desired effect.
[19]Gilbert v R (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J, McHugh J at 426 [32]); [2000] HCA 15; Wedi v The Queen [2020] VSCA 86 (Priest, T Forrest and Weinberg JJA); DPP v Pearson (a pseudonym) (2021) 293 A Crim R 179 (Priest, T Forrest and Walker JJA); [2021] VSCA 336; Payne v The King [2024] VSCA 273 (McLeish, Kaye and T Forrest JJA).
We do not accept the applicant’s submission that the terms of the direction given were deficient. As we have explained, the terms ‘emotional distress’ and ‘signs of distress or the like’ used by the judge were sufficient to describe the behaviour. They were, as requested and drafted by both counsel, neutral. Even if it is speculated that the juror or jurors thought the applicant was angry, there would have been no doubt in the jury’s mind that the direction applied to all of the behaviour displayed by the accused outside court on the third day of the trial. Further, the judge told the jury that such behaviour was not evidence and that the reason for ‘the emotions or the distress’ could never be rationally determined. That part of the direction would have been readily understood as a matter of common human experience. The judge also emphasised the importance of the direction. The content of the direction given was not only sufficient in all the circumstances, it was exemplary.
Finally, as the respondent argued, the impact of the incident already ameliorated by the direction was further ameliorated by the effluxion of time. The jury heard evidence for a further seven days before hearing counsel’s addresses and the judge’s charge, which included, as we have said, a good character direction.

Conclusion on proposed ground 2

The applicant’s behaviour during the incident was not such as to give rise to any unfairness in the context of the issues in the trial. Assuming the whole jury knew of the nature of that behaviour, neither counsel nor the judge steeped in the atmosphere of the trial considered it necessary to discharge the jury. It was not. Any risk of prejudice to the applicant arising from his behaviour was ameliorated by clear the terms of the comprehensive direction given.
Proposed ground 2 cannot succeed.

Conclusion

Leave to appeal will be refused.
---

[2025] VSCA 102

15 May 2025