Weston v The King
[2024] VSCA 184
•26 August 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0235 |
| NICHOLAS DAVID WESTON | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | PRIEST, McLEISH and WALKER JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 July 2024 |
| DATE OF JUDGMENT: | 26 August 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 184 |
| JUDGMENT APPEALED FROM: | [2020] VCC 583 (Judge Gucciardo) |
---
CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – Rape – New evidence associated with unrelated offending of Crown witness – Whether new evidence impugns credibility of Crown witness – Whether evidence fresh and compelling – Evidence fresh but not compelling.
CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – New evidence about complainant’s mother’s occupation and her comments about aspects of trial – Evidence about occupation not fresh – Evidence about comments fresh but not compelling.
CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – Evidence of recent sexual history – Evidence could have been adduced at trial – Evidence not fresh – Application for leave to bring second appeal refused.
CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second conviction appeal – Assertion of error of law on face of record – Submissions regarding use at trial of evidence of complainant’s blood alcohol concentration – Issue taken with summary of that evidence by sentencing judge and on first appeal – Evidence not fresh – Application for leave to bring second appeal refused.
Crimes Act 1958, s 38(1); Criminal Procedure Act 2009, ss 326A, 326C.
Roberts v The Queen (2020) 60 VR 431, applied.
---
Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr T Bourbon | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
MCLEISH JA
WALKER JA:
The applicant was tried in December 2019 on five charges of rape contrary to s 38(1) of the Crimes Act 1958. It was alleged that the rapes occurred on a single occasion on 26 November 2017 at the applicant’s apartment. The complainant, ‘K’, was staying in the apartment together with a friend ‘M’, having made a booking to do so on Airbnb.
On 12 December 2019, the applicant was convicted of four charges of rape. He was acquitted of a further charge of rape. On 8 May 2020, he was sentenced to a term of 8 years’ imprisonment, with a non-parole period of 5 years and 3 months.
The case against the applicant
The applicant has already appealed against his conviction. On 13 December 2021, this Court dismissed the appeal.[1] The reasons of T Forrest JA and Macaulay AJA, themselves drawing on the reasons of Kyrou JA who earlier refused an extension of time in which to seek leave to appeal,[2] succinctly summarised the offending:
[1]Parker (a pseudonym) v The Queen [2021] VSCA 348 [7] (Priest JA), [11], [83] (T Forrest JA and Macaulay AJA) (‘First Appeal Judgment’).
[2]Parker (a pseudonym) v The Queen [2021] VSCA 139 (‘Extension of Time Judgment’).
The applicant, who was 41 years of age at the time of the alleged offending, rented the second bedroom of his Elizabeth Street apartment on Airbnb. K and M, who were both aged 19 and visiting Melbourne from interstate, booked a four-day stay, arriving on Friday 24 November 2017.
On the first night of their stay, K and M socialised at the apartment with the applicant and a friend of the applicant’s, with a friend of K and M joining them at around 10:30 pm. The five drank some alcohol that K and M had purchased during the day, before K, M and their friend went out at 11:30 pm. The applicant told K to wake him when they returned. K and M did not do so when they returned to the apartment at around 4:00 am.
On the following night, Saturday 25 November, K and M again socialised and drank at the apartment with the applicant and a different friend of his. At some stage, K became ill due to excess alcohol consumption and went to lie on the bed she was sharing with M. At one stage she vomited into a bucket that the applicant had provided.
After K had gone into the bedroom, the applicant, his friend and M left the apartment for a bar. They did not stay long, the applicant’s friend leaving first, and the applicant and M returning to the apartment a short time after that, at around 11:00 pm. During their absence, K had vomited again, this time on the bed, and had passed out on the bed. M took a photograph of her in this condition at 11:07 pm, and then she and the applicant moved K to the couch in the living room while the bedding was changed. K vomited again while on the couch and a short time afterwards M went to bed and fell asleep. The applicant sat on the couch near K.
K’s next memory is of being in the bathroom on her knees with her head over the toilet bowl. She did not know how she had come to be there as she last recalled being in the kitchen. She did not recall going to bed, vomiting in the bed or in the bucket the applicant had provided, being moved by the applicant and M from the bed to the couch, or vomiting on the couch. The applicant was with her in the bathroom and was telling her to ‘be sick’ and to put her fingers down her throat. K told the applicant she did not want to throw up again and wanted to go to bed. The applicant repeatedly asked her if she wanted to sleep in his bed, and she repeatedly told him that she wanted to go to her bed. The applicant said, ‘I’ll take you to my bed’, picked her up by the waist, carried her into his bedroom and put her in his bed. K felt weak and disorientated. She saw the [applicant] leave the bedroom and then fell asleep.
K was unsure how long she had been asleep when she felt the applicant climbing over her to get into the bed and lie next to her. K was lying on her side with her back to the applicant. He tried to get her to lie on her back. K said ‘no’ and told the applicant that she felt sick.
The applicant removed K’s underwear. She repeatedly told him ‘no’, to leave her alone and not touch her. The applicant then began to lick her vagina. While this was happening K continued to say ‘no’ repeatedly. The applicant penetrated her vagina with his fingers (charge 1) and then with his penis (charge 2). K tried to push him away from her but lacked the strength. The applicant then began licking K’s vagina again and inserting his fingers into her vagina (charge 3).
The applicant climbed on top of K, placing his knees on her shoulders so that his penis was in her face. He asked her to suck his penis, which K refused to do. The applicant then penetrated her vagina with his penis again (charge 5).
K managed to lift her right leg and use it to push the applicant off her. She grabbed her underwear, ran out of the bedroom and into the other bedroom where M was sleeping. She roused M and told her that the applicant had raped her.[3]
[3]First Appeal Judgment [2021] VSCA 348 [13]–[21].
T Forrest JA and Macaulay AJA then summarised the applicant’s case at trial in the following terms:
The applicant’s case at trial was that the sexual activities between him and the complainant were consensual. In an extensive record of interview the applicant stated that K had volunteered to accompany him to his bed and that she was the one who had initiated the contact that led to sexual intercourse. He stated that he had asked K if she was comfortable with the sexual contact and that she had answered ‘yes’. He stated that she had subsequently asked him to stop and that he had done so immediately.
The applicant also pointed to a series of prior inconsistent statements said to have been made by the complainant on the night of the alleged rapes and later changed at trial. These inconsistencies were said to include:
a)In her statement to police K said that she woke M up and told her that she had been raped. At trial, K’s evidence was that she woke M, M asked her ‘what was going on’ and she then told M she had been raped.
b)K told a police officer on the night of the alleged rapes that the applicant had helped her when she was in the bathroom. At trial, her evidence was that she could not remember saying that.
c)K told a police officer on the night of the alleged rapes that the applicant had penetrated her anus and did not mention him penetrating her vagina. Later that night she told police that he had penetrated her both anally and vaginally.
d)K said at the committal hearing that she did not know if she had said to the applicant on the evening before the alleged rapes, ‘I’ll bust down your door and have my way with you’ or words to that effect. At trial she positively asserted that she did not say that.[4]
[4]Ibid [26]–[27].
First appeal
On 15 November 2020, the applicant sought leave to appeal against his convictions. His application required an extension of time. On 21 May 2021, Kyrou JA determined that the applicant’s grounds of appeal were not reasonably arguable.[5] Accordingly, he refused the extension of time.[6]
[5]Extension of Time Judgment [2021] VSCA 139 [66].
[6]Ibid.
The applicant then made an election under s 315(2) of the Criminal Procedure Act 2009 (‘CPA’) to have his application determined by a panel of two or more judges. A panel of three judges was convened. On the basis of a ground that was not agitated in the original application, the Court granted the extension of time and allowed the application for leave to appeal. The Court then dismissed the appeal.[7]
Extension of Time Judgment
[7]First Appeal Judgment [2021] VSCA 348 [83] (T Forrest JA and Macaulay AJA, Priest JA agreeing at [7]).
The proposed grounds of appeal advanced in the Extension of Time Judgment took issue with the trial judge’s directions to the jury. Three grounds were advanced.[8]
[8]Extension of Time Judgment [2021] VSCA 139 [2] (Kyrou JA).
The applicant’s first ground concerned a direction given by the trial judge to the jury that the complainant may have been an unreliable witness because of her intoxication.[9]
[9]Ibid [38].
The second ground of appeal contended that the trial judge’s charge failed to adequately articulate or particularise prior inconsistent statements said to have been made by K and M, or to relate the relevant law to the facts of the case.[10]
[10]Ibid [57].
The applicant’s third ground challenged the trial judge’s directions regarding the effect of K’s intoxication on the applicant’s belief as to consent.[11]
First Appeal Judgment
[11]Ibid [60].
When the matter was heard before an enlarged bench, the applicant abandoned grounds 2 and 3 of his application. He continued to press ground 1, and was also given leave to introduce a fourth ground.[12]
[12]First Appeal Judgment [2021] VSCA 348 [10]–[11].
T Forrest JA and Macaulay AJA agreed with Kyrou JA’s conclusions in respect of proposed ground 1.[13] Priest JA agreed with the other members of the Court.[14] The extension of time application was therefore refused in respect of ground 1.[15]
[13]Ibid [33].
[14]Ibid [1].
[15]Ibid [83] (T Forrest JA and Macaulay AJA, Priest JA agreeing at [1]).
The applicant’s fourth ground contended that the trial judge, in charging the jury, fell into error by enlarging the prosecution case in respect of the issues of K’s consent and the applicant’s reasonable belief in that consent.[16]
[16]Ibid [38].
The Court granted the extension of time and leave to appeal in respect of ground 4, but dismissed the appeal.[17]
[17]Ibid [83]. Priest JA agreed with the orders of T Forrest JA and Macaulay AJA at [7].
Second application for leave to appeal
The applicant now seeks to bring a second appeal against his conviction, pursuant to s 326A of the CPA. By that section, a person convicted of an indictable offence who has exhausted their right to appeal against conviction (as the applicant has) may appeal to this Court against that conviction if this Court gives leave to appeal.
The provision for a second or subsequent appeal is not simply an opportunity for a person who has been unsuccessful in seeking to appeal against their conviction to have a second attempt. A second or subsequent appeal is an exceptional proceeding, because leave to bring such an appeal is tightly restricted by the statute. The Court may only grant leave if it is satisfied that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’: s 326C(1). It is therefore not determinative that the proposed appeal may have reasonable prospects of success, for example. The gateway to a grant of leave to bring a second or subsequent appeal is much narrower.[18]
[18]Zhong v The King [2023] VSCA 35 [13] (Kyrou, McLeish and Kennedy JJA); Bembo v The King [2023] VSCA 68 [25] (Beach, McLeish and Kennedy JJA).
The terms ‘fresh’ and ‘compelling’ are defined in s 326C(3), in the following terms:
In this section, evidence relating to an offence of which a person is convicted is—
(a) fresh if—
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) either—
(A) it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B) it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
In respect of the requirement that the evidence founding leave to appeal under s 326C(1) be ‘fresh’, this Court said in Roberts v The Queen:[19]
Fourth, the notion of fresh evidence as against new evidence reflects an underlying concept commonly applied by intermediate appellate courts in this country. In Mickelberg v The Queen, Toohey and Gaudron JJ said:
The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available.[20]
[19](2020) 60 VR 431 (‘Roberts’).
[20]Ibid 441 [43] (Osborn, T Forrest JJA and Taylor AJA), quoting Mickelberg v The Queen (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ) (citations otherwise omitted).
In respect of the requirement that the fresh evidence be ‘compelling’, the Court said:
Seventh, the words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen, the High Court observed (of the equivalent South Australian provision):
Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.
Eighth, when compared with the South Australian statute, the Victorian statute raises as a further alternative to the final component of ‘compelling’ evidence, that which would have eliminated or substantially weakened the prosecution case if it had been presented at trial.[21]
[21]Roberts (2020) 60 VR 431, 441–2 [46]–[47] (Osborn, T Forrest JJA and Taylor AJA), quoting Van Beelen v The Queen (2017) 262 CLR 565, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ) (citations otherwise omitted) (‘Van Beelen’).
As the Court in Roberts went on to point out, jurisdiction under s 326C(1) ‘is further conditioned upon the appellate court’s satisfaction that it is in the interests of justice that the fresh evidence be considered on appeal’.[22] The concept of the ‘interests of justice’ in this context is not to be conflated with the ultimate issue of a substantial miscarriage of justice.[23]
[22]Roberts (2020) 60 VR 431, 442 [48] (Osborn, T Forrest JJA and Taylor AJA).
[23]Ibid 443 [51], citing Van Beelen (2017) 262 CLR 565, 578 [31] (Bell, Gageler, Keane, Nettle and Edelman JJ).
Proposed grounds of appeal
The applicant seeks leave to bring a second appeal on the following grounds:
1.A substantial miscarriage of justice exists on the basis of 2018 ‘fresh and compelling evidence’ capable of demonstrating that the Crown benefited from the false credibility of a witness (amounting to perjury).
2.A substantial miscarriage of justice exists on the basis of ‘fresh and compelling evidence’ capable of demonstrating an evidential basis for the complainant to have had a motive to lie.
3.A substantial miscarriage of justice exists on the basis of the absence of forensic evidence regarding the complainant’s recent sexual history at trial.
Although not advanced as a specific ground of appeal, the applicant also made submissions about evidence that was given at trial about K’s blood alcohol content on the night of the alleged offending.[24] He claimed that remarks made by the sentencing judge, by Kyrou JA in the Extension of Time Judgment and by this Court in the First Appeal Judgment constituted an error of law on the face of the record. Bearing in mind that the applicant was not represented by a lawyer, it is appropriate to treat those submissions as a fourth proposed ground of appeal, which may be formulated as follows:
4.A substantial miscarriage of justice occurred by reason of the manner in which expert evidence of the complainant’s blood alcohol content was presented at trial and/or summarised by the sentencing judge and the Court of Appeal after the trial.
[24]Throughout his submissions, the applicant also impugns the conduct of certain lawyers who assisted him at trial and during his first appeal. See, eg, [30] below.
It is convenient to set out the applicant’s arguments in respect of these grounds before addressing the question whether there is ‘fresh and compelling evidence’ which in the interests of justice should be considered by way of an appeal on each ground.
Proposed ground 1 — false credibility of a witness
The essence of the first proposed ground is that the applicant alleges that material that has come to light since the trial shows that a Crown witness, Aran Spottiswood, gave false evidence and that his credibility was therefore undermined.
At trial, Mr Spottiswood gave evidence that on the Friday night he was at the applicant’s apartment for about two or three hours with K, M and a male friend of the applicant. When he, K and M left at around 1.00 am, he said that the applicant was ‘very insistent’ on K and M waking him up once they returned to the apartment, but that they politely said that they did not intend to do so. M also gave evidence that the applicant had been ‘very insistent on us waking him up when we got home … to continue drinking and partying’. Mr Spottiswood said he did not observe any flirting between the applicant and K and M. Nor did he hear K tell the applicant that she was going to ‘bust [his] door down to have my way with [him]’.
The applicant’s record of interview was in evidence. Relevantly for present purposes, he was not asked about interactions between himself and K on the Friday night. K said in cross-examination, however, that she denied having told the applicant before leaving his apartment on the Friday night that she would ‘bust his bedroom door down’ to ‘have her way’ with him when she returned. She denied flirting with the applicant at all. M also denied that K had made the comment about the door.
Mr Spottiswood’s credit was attacked at trial. In particular, evidence was led of the fact that he had pleaded guilty the previous month to child sex offences and child abuse material offences. He said he had ‘made unforgivable decisions’ and that he ‘fully accept[ed]’ the charges. He had pleaded guilty, among other things, to three counts of sexual penetration of a child under 16, when he was aged 25 and the child in question was 14 years old.
In support of proposed ground 1, the applicant pointed to the judge’s sentencing remarks when Mr Spottiswood came to be sentenced, and in particular her view (based on expert reports) that he clearly demonstrated difficulty in accepting responsibility for his offending and was ‘dangerously un-insightful’ about his ‘latent devious tendencies’.[25] It was submitted that this showed that Mr Spottiswood had lied when he gave evidence that he fully accepted the charges.
[25]DPP v Howell [2020] VCC 1328 [32], [43] (Judge Gaynor).
In addition, the applicant pointed to a submission made on Mr Spottiswood’s behalf at the plea hearing to the effect that he gave evidence for the prosecution at the applicant’s trial. Counsel on the plea submitted that the fact that Mr Spottiswood had given such evidence might cause Mr Spottiswood ‘extra difficulty in custody’.[26] The applicant submitted that it could be inferred from this that Mr Spottiswood had been given some kind of inducement to give evidence, which would entitle him to a reduction in the sentence soon to be passed upon him.
[26]Ibid [31].
The applicant filed an affidavit affirmed on 1 November 2023 which, among other things, recounted his version of the events of the Friday night and his instructions to his legal representatives in relation to that matter. In a second affidavit, affirmed on 1 May 2024, the applicant asserted negligence on the part of his former counsel in various respects, both at trial and on appeal (not raising fresh evidence or additional grounds beyond the matters now under consideration).
It may be accepted that the sentencing remarks in the case of Mr Spottiswood, made eight months after the trial, constitute ‘fresh’ evidence and that the judge’s assessment, and the expert reports upon which it was based, could not, with reasonable diligence, have been adduced at the trial.
The 1 November 2023 affidavit, however, is not ‘fresh’, in so far as it recounts the evidence the applicant would have given at trial about the events of the Friday night. He could, of course, have given evidence had he chosen to do so. Nothing in his account of his recollections relies on anything that was not known to the applicant at the time of the trial.
The evidence of matters arising from the sentencing of Mr Spottiswood is far from ‘compelling’. The jury is unlikely to have had a favourable impression of Mr Spottiswood in any event. At its highest, the fresh evidence that he had difficulty accepting responsibility for his child sexual offending could be said to have cast doubt on his evidence that he ‘fully accepted’ the charges. But that evidence was correct, in that he did plead guilty to those charges and thereby took responsibility for his offending. The lack of insight into that offending which was subsequently revealed was not fundamentally inconsistent with Mr Spottiswood’s evidence that he fully accepted the charges.
More importantly, the credit of Mr Spottiswood was peripheral at best to the issues in the trial. His evidence concerned a conversation and some conduct the night before the offending. His evidence was supported by that of K and M, and there was no evidence to the contrary.[27] The fresh evidence falls well short of meeting the ‘compelling’ threshold. It is not ‘substantial’ because it is not of real significance or importance to the issue of Mr Spottiswood’s credit. It is not ‘highly probative’ in the context of the issues in dispute in the trial, and it would not have weakened the prosecution case if it had been presented at trial.
[27]The applicant’s friend made a statement which supported the applicant’s account but he was not asked about that matter when he gave evidence at trial.
There is no evidence at all that Mr Spottiswood was offered an inducement to give evidence at the applicant’s trial. The sentencing remarks reveal only that he had given such evidence, and that it was submitted that this would expose him to danger in prison. Even if it were thought possible that Mr Spottiswood expected a benefit from giving evidence at the applicant’s trial, this could have been asked about in his cross-examination at that trial. It was not.
We add that the applicant filed a further affidavit after judgment in this matter was reserved, purportedly pursuant to leave given by the Court for the applicant to file short written submissions in reply. That affidavit deposed to a newspaper article published after the hearing which reported on a finding of dishonesty against Mr Spottiswood in unrelated proceedings. Accepting for the sake of argument that this was ‘fresh’ evidence, it went no further than impugning the credit of Mr Spottiswood. It was not compelling, for the reasons given above.
Leave to bring a second appeal on the first proposed ground must be refused.
Proposed ground 2 — complainant’s motive to lie
The second proposed ground asserts that K had a motive to lie by virtue of her mother having previously held a senior role in a sexual assault support organisation. The reasoning behind this contention is obscure, but it runs along the lines that, in light of her mother’s role as an advocate for those who have experienced sexual assault, K had no choice, once she had made allegations to her mother against the applicant, other than to persist in those allegations. It was also suggested that K’s mother would have been in a position to coach K in what needed to be said to sustain a sexual assault allegation.
These potential arguments are far from compelling. The suggested ‘motive to lie’ is difficult to understand, since it relates only to a supposed motive not to retract allegations already made (both to M and to K’s mother). But in any event, the applicant states in his affidavit that the former role of K’s mother became known to him in 2017 and he had expected defence counsel to advance the point at trial. This material could have been adduced at trial and is therefore not ‘fresh’.
The applicant next relied on an extract from a book entitled ‘Witness’, of which he became aware in January 2024, in which K’s mother is recorded as making specific criticisms of defence counsel at the applicant’s trial. This material is ‘fresh’ in the sense that it could not have been adduced at the trial. But it, too, is in no way compelling. The complainant’s mother’s negative impression of defence counsel has nothing to do with the issues in dispute at the trial. It is not of real significance or importance to the issue of K’s consent, in respect of which it is sought to be relied upon, and is therefore not ‘substantial’.
The evidence under this ground, in so far as it is fresh, therefore fails to meet the ‘compelling’ requirement as defined in s 326C(3)(b). In addition to not being ‘substantial’, it is not highly probative in the context of the issues in dispute at the trial, and it would not have substantially weakened the prosecution case if it had been presented at trial.
The applicant’s complaint that the complainant’s motive to lie based on her mother’s occupation was not raised by his counsel at trial could have been raised at the first appeal. We see no basis for doubting that the decision not to run the point at trial was a legitimate forensic decision. It is not in the interests of justice to allow that matter to be the subject of a second appeal.
Proposed ground 3 — complainant’s recent sexual history
Under proposed ground 3, the applicant contended that evidence of K’s recent sexual history ought to have been put before the jury. His argument concerns evidence of genital injuries which was led from Dr Vicky Kim. She conducted a genital examination of K about nine hours after the alleged offending. She identified injuries to K’s vagina as having been caused by blunt trauma. Such injuries could be expected to heal fairly quickly. Dr Kim said that genital injuries can occur during consensual or non-consensual sexual activities, but visible signs of injury are not common.
The applicant submitted that evidence should have been adduced at trial that K had told Dr Kim, as recorded in her notes, that she had sexual intercourse with another person in the preceding week. The applicant also referred in his first affidavit to an alleged conversation, between him, K, M and another person the day before the offending, in which K spoke of having had sexual intercourse in a spa in the previous week. Dr Kim’s notes had been provided to the applicant prior to the trial and the applicant said in his affidavit that the ‘spa pool incident, and the abrasions observed by Dr Kim’ were the subject of ‘significant pre-trial discussion’. He said that defence counsel should have raised these matters with Dr Kim as alternative explanations for the genital injuries she identified.
The applicant’s case that this evidence is ‘fresh’ relies on the prohibition on admitting evidence of sexual activity of a complainant, without leave of the court, in s 342 of the CPA. He submitted that this prohibition meant that the evidence was not, and could not with reasonable diligence have been, adduced at trial, meaning that it falls within the definition of ‘fresh’ evidence in s 326C(3). He further relied on s 326C(4), which states that evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial. He suggested that s 326C(4) has a clarifying effect that, in this case, tends to support his argument under proposed ground 3.
There is nothing ‘fresh’ about this evidence, because it was available to the applicant to be led at trial. The applicant’s submission misconceives the meaning of ‘adduce’ in s 326C(3). Consistently with the scheme of the Evidence Act 2008, adducing evidence is different to admitting evidence. Chapter 2 of the Evidence Act (entitled ‘Adducing evidence’) addresses the ways in which evidence can be adduced, in the sense of being placed before the court: principally by witnesses and documents but also by views and potentially other means. Chapter 3 (entitled ‘Admissibility of evidence’) concerns the question whether evidence that has been so adduced is admissible. Obviously, the two aspects of bringing evidence before a court are not functionally separate, and questions of admissibility may be decided before evidence is permitted to be adduced. But the concepts are distinct.
When s 326C(3) refers to adducing evidence, it is concerned with the availability of evidence, not its admissibility. That is clear from s 326C(4), which confirms that evidence may be fresh even though it would have been inadmissible at the trial, had it been adduced. The provision uses the terms differently, and the definition of ‘fresh’ evidence turns on the adducing of evidence rather than its admissibility.
If anything, s 326C(4) tells against the applicant’s argument in this case. It shows that, even if s 342 of the CPA would have rendered the sexual history evidence inadmissible (assuming leave under s 349 to admit it or allow cross-examination would have been refused), that evidence could still, for the purposes of a second appeal, be ‘fresh’ if it could not, with reasonable diligence, have been adduced. Conversely, it may be shown not to be ‘fresh’, if it could have been so adduced (again assuming the operation of the obstacle to admissibility in s 342).
The evidence relied on by the applicant in respect of this ground could have been adduced at the trial and is therefore not fresh.
In any event, the evidence is not ‘compelling’. In particular, it is not ‘substantial’ as s 326C(3)(b)(ii) requires; it is not of real significance or importance to the issue of consent. That is because Dr Kim gave evidence that genital injuries of the kind she identified heal fairly quickly, and she was not able, in any event, to draw any conclusions as to whether the injuries resulted from consensual or non-consensual intercourse. It was not in issue that the applicant had, at least briefly, penetrated K’s vagina with his penis. Dr Kim’s evidence did not directly address the applicant’s account, so she did not say whether the injuries were more consistent with the brief consensual intercourse he described or the more prolonged, non-consensual, intercourse alleged by K. The ‘fresh’ evidence would therefore not have borne on that issue at all either.
For the same reasons, the evidence is not highly probative in the context of the issues in dispute at the trial, and it would not have substantially weakened the prosecution case if it had been presented at trial: s 326C(3)(b)(iii).
Leave under this ground must also be refused.
Proposed ground 4 — complainant’s blood alcohol content
The final matter, which the applicant characterised as an error on the record rather than a specific ground, concerned the way in which expert evidence of K’s blood alcohol content was presented to the jury. That description of the issue indicates immediately that this is not an argument based on fresh evidence.
In short, the argument (as best we understood it) was that the range of possible blood alcohol concentrations put in evidence by the expert, Dr Gaya, effectively overstated the level of intoxication of K at the time of the sexual activity between her and the applicant.
Dr Gaya extrapolated from a blood alcohol content of 0.047 grams of alcohol per 100 millilitres of blood taken at 9.30 am on the morning after the alleged offending, to conclude that at 2.00 am on that day the concentration would have been between 0.122 and 0.197, and at midnight it would have been between 0.142 and 0.237. She said that, taking both ranges together, the lowest possible value was 0.122 and the highest was 0.237.
The level of K’s intoxication was a significant matter in the trial, going both to her ability to consent and to the applicant’s reasonable belief, or otherwise, in her consent. A higher blood alcohol concentration around the time of the sexual activity supported the Crown case, and vice versa.
The time of the offending on the Crown case was shortly before 2.00 am, based on evidence including a triple zero call and a text message K sent to a relative. As the applicant submitted, if the sexual activity took place close to 2.00 am, then a ‘composite’ blood alcohol range of 0.122 to 0.237 per cent was less accurate than a range of 0.122 to 0.197 per cent. But that submission turns on the evidence Dr Gaya gave at trial, not on anything that could be described as ‘fresh’. The broader range was also relied upon by defence counsel in his closing address at trial, and the applicant submitted that that was an error by his counsel. But that does not make the evidence ‘fresh’; to the contrary, it emphasises that the point the applicant now seeks to make was available at the trial, although his counsel did not make the point.
The applicant relied upon the fact that the larger, misleading range, was adopted by the judge when sentencing, by Kyrou JA and by this Court in summarising the facts,[28] all of which occurred after the trial. But none of those things serve to make this fresh evidence.
[28]Extension of Time Judgment [2021] VSCA 139 [22]; First Appeal Judgment [2021] VSCA 348 [24] (T Forrest JA and Macaulay AJA).
In any event, we can detect no miscarriage of justice in the point now advanced by the applicant. The jury was given a range of blood alcohol concentrations for 2.00 am, as well as over the two hour period. Dr Gaya also gave evidence about the likely effects on a person of varying ranges of blood alcohol concentrations. We do not accept that anything could have turned on whether the jury thought that K’s blood alcohol concentration at 2.00 am was up to 0.237 grams per 100 millilitres, or 0.197 grams.
Conclusion
Leave to bring a second appeal from the applicant’s convictions must be refused.
---
0
9
1