Zhang v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0046

XIAO LONG ZHANG	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, McLEISH and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2024
DATE OF JUDGMENT:	19 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 137
JUDGMENT APPEALED FROM:	DPP v Zhang (Unreported, County Court of Victoria, 29 November 2023, Judge Gaynor)

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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to seek leave to appeal – Sexual assault – Consent and belief in consent in issue at trial – Complaint evidence – Whether complainant’s prior representation to boyfriend that applicant ‘touched’ her relevant to issue of lack of consent – Whether prior representation admissible as truth of complaint – Direction merely reflecting admissibility of evidence for both purposes – Counsel’s acquiescence in proposed direction complied with Jury Directions Act 2015 s 12 – Otherwise no substantial and compelling reason to give direction – Prior representation admissible to buttress credibility of complainant – Prior representation admissible in proof of the fact that the touching was without the complainant’s consent – No substantial miscarriage of justice in any event – Application for extension of time refused.

Jury Directions Act 2015 ss 12, 15, 16; Evidence Act 2008 ss 60, 66 discussed.

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Counsel
Applicant:		Mr D Dann KC with Ms G Connelly
Respondent:		Ms K Argiropoulos
Solicitors
Applicant:	Anthony Isaacs Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
McLEISH JA
BOYCE JA:

Introduction

On 2 November 2023, a jury empanelled in the County Court to try him found the applicant guilty of two charges of the sexual assault0F[1] of an adult female complainant, ‘YQH’.1F[2] The first charge alleged that the applicant had touched the complainant’s breast without her consent, and the second charge alleged that the applicant had touched the complainant’s vagina without her consent. Principal issues in the trial were whether YQH consented to sexual touching, and the applicant’s belief as to whether YQH was consenting.
[1]Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 40. The maximum penalty is 10 years’ imprisonment.
[2]On 29 November 2023, the trial judge sentenced the applicant to an aggregate sentence of six months’ imprisonment, coupled with a community correction order of 18 months’ duration.
The applicant now seeks an extension of time within which to file an application for leave to appeal against his conviction. If granted the extension of time, the applicant seeks leave to appeal against his conviction on a single ground, formulated as follows:
A substantial miscarriage of justice has occurred in circumstances where the Learned Trial Judge directed the jury that the Complainant’s statement ‘I was touched’ – could be used by the jury as evidence that:
(a) the accused man touched the Complainant’s vagina without her consent; and
(b) the accused man touched the Complainant on her breasts without her consent.
In our view, the extension of time should be refused. Given that the proposed ground of appeal against conviction must fail, it would be futile to extend time. Our reasons follow.

The alleged offending

YQH and the applicant first met at a bar in Crown Casino in early 2018.
On 26 September 2019, YQH went to the applicant’s office to discuss employment opportunities. She understood the applicant was involved in a wine importing business, and wanted the applicant to employ her. The applicant explained, however, that he did not have a position for her.
A few weeks later, on 14 October 2019, the applicant invited YQH to lunch. As a result, the following day, 15 October 2019, the complainant met the applicant (and three other males) for lunch at a restaurant in South Yarra, where both consumed a significant quantity of wine.
At approximately 3.00 pm, YQH left the restaurant and walked to the carpark where she had parked her boyfriend’s car. She could not exit the carpark, however, because she could not find the parking ticket. The applicant, who initially had accepted a lift from the complainant, then suggested that she have a rest. YQH, who was affected by alcohol, agreed.
The applicant contacted his driver, Ran Bi, and asked him to find a hotel so that the pair could have a rest. Mr Bi located an apartment at the Oaks Serviced Apartments complex in South Yarra. He then picked the pair up and drove them to the apartment complex. Mr Bi observed the complainant to be ‘really drunk’.
After paying for the apartment, Mr Bi returned to the car and both the applicant and the complainant got out. The applicant asked Mr Bi whether he had a condom. Mr Bi then retrieved a condom from the boot of the car. He gave the condom to the applicant after taking the pair up to the rented apartment on the fifth floor of the apartment complex.
Once inside the apartment, the applicant was seated next to YQH on a couch, and, according to the complainant, put his arm around her. The complainant’s evidence was that she pushed the applicant away and told him she wanted to be on her own. She also gave evidence that she then went into the bedroom and sat on the edge of the bed.
YQH gave evidence that the applicant then followed her into the bedroom; pushed her down onto the bed; lay on top of her; kissed her lips and face; pulled her pants down; touched her breast under her bra (charge 1); and touched the ‘external part of her genital area’ (charge 2). Her evidence was that she verbally and physically resisted the applicant throughout the incident, pushing him away, trying to get away from him and telling him to ‘stop’. Eventually, she bit the applicant on the lip, drawing blood. The applicant then said, ‘How could you do such a thing?’.
The complainant ultimately got off the bed and telephoned her boyfriend, Xin Jie Lin. Mr Lin picked the complainant up and took her to the Malvern Police Station, where she complained that the applicant had sexually assaulted her. On the way, YQH complained to Mr Lin that the applicant had ‘touched’ her.

The evidence bearing on consent and belief in consent

Somewhat curiously, the prosecutor did not directly elicit evidence from YQH that the applicant’s touching of her breast and vagina was without her consent.
YQH did, however, give a deal of evidence that bore on the issue of her lack of consent. Thus, her evidence included assertions that, after the applicant pushed her down onto the bed, he ‘was pressing [her] down and [she] was resisting’; she said to him, ‘Don’t do this. Stop, stop’; to resist him, she ‘wanted to push him away’ but could not; she ‘kept trying to get up’; the ‘whole time [she] was resisting’, but because he was heavy ‘there was no way for [her] to push him away’; ‘[she] kept telling him to stop doing this’, and warned him that she was ‘going to call the police if he keep [sic] doing this’; she ‘couldn’t get away from him’, no matter how much she resisted him; ‘the whole time she was trying to pull [her] pants back up, and [she] was trying to resist’; and he did not stop until she bit him on the lip. In light of this evidence, it is noteworthy that the applicant’s trial counsel did not at any point contend that there was a lack of evidence to prove the absence of the complainant’s ‘free agreement’ to the applicant’s touching of her breast and vagina.
In his defence, the applicant gave the following evidence concerning events in the apartment:2F[3]
[3]Emphasis added to this and passages following.
What happened to your driver?---My driver had a walk around the room. He said the amenities were fine and he said that he parked the car in a non-parking zone and he needed to move the car. And I greeted him and he gave me the condom and he left.
All right. After he left, where was [YQH] and where were you?---After he left, I was still sitting on the two-seater sofa.
…
Where was [YQH]?---At that time, [YQH] was also sitting on the sofa on my left-hand side. She was sitting next to me and she put her head on my shoulder and she put her hand on my leg.
How were you feeling?---I felt a strong feeling. I felt that, between us, there could be a relationship happening.
All right. What happened next? We sat on the sofa for quite a short period of time and then [YQH] said, ‘Mr Zhang, let’s move to the bedroom for some rest’.
Okay. What happened?---And then we moved to the bedroom.
And where – and what did she do and what did you do?---I remember that after entering the room – the bedroom, [YQH] was sitting on the side of the bed, close to the bathroom. Yes.
And where were – what did you do?---I sat beside her.
Did anybody take any clothes off?---No.
What happened?---We were sitting very close to each other. We were chatting and then there were some kisses and touches.
Could you tell me what the chatting was about?---I remember she told me that the relationship between she and her boyfriend wasn’t good and her boyfriend’s temper wasn’t good and they would had – they would have arguments and her boyfriend didn’t treat her child well. And she was talking about that she wanted a job so that she could be financially independent and she and her child can leave her boyfriend.
All right. What happened? Was there anything else? Did she say?---I can’t remember anything else. I think that’s what she told me. I can’t remember anything else.
Did she say anything about a job or working?---Yes. She did mention that.
In what sense?---She was saying whether there’s any possibly [sic] of a job offer so that she could become more financially independent and she could have enough income to look after herself and the child.
All right. Well, what happened in the bedroom?---While we were talking, there were some physical touches and then kisses.
All right. And what happened?---I remember that I touched her hair, I touched her face, and we kissed each other on the mouth, and then we lied [sic] down to the bed.
All right. What happened?---I remember that, while we were lying down, I was lying on the left, and she was lying on the right. My body was kind of leaning, and I had one hand in my pocket, and I was using my elbow to support my body.
…
Did you touch her breasts at any time?---Yes.
Could you tell us how?---So while we were lying at an angle, I kissed her ears, her neck, and we kissed each other’s mouth. And at first, I was touching her breast through the clothes, and then later on, I put my hands inside her bra.
Okay. Did she say anything when you were doing that?---I can’t remember.
Did you touch her anywhere else?---I touched her private part.
And how did you do that?---So I remember, I was touching her lower belly, the lower part of her abdomen, and I remember her pants were very tight, and when I was just about to put my hands into her pants, she suddenly said, ‘Wait, Mr Zhang, I thought maybe my boyfriend is calling me’, and I pulled my hands out right away.
Cross-examined by the prosecutor, the applicant gave the following evidence:
You went closer to her?---We were sitting close to each other.
She went to the bedroom?---Yes.
You followed her?---Yes.
You pushed her onto the bed?---No.
You got on top of her?---That didn’t … happen.
She told you, ‘Don’t do this. Stop. Stop’?---No.
She said if you keep doing this, she would call the police?---No.
She was trying to push you away?---No.
You put your hand under her top?---Yes, I did.
You touched her breasts underneath her bra?---Yes.
While you were doing this, she was trying to get up?---No.
She told you to stop?---No.
You didn’t stop?---She didn’t ask me to stop.
She warned you that she would call the police?---She didn’t say that.
You didn’t stop?---She didn’t say that. And, of course, I didn’t stop.
You kept trying to kiss her?---I had been kissing her the whole time.
She tried to move her face away from you?---No.
You pulled her pants down to around her thigh area?---No.
You touched her on her vagina, underneath her panties?---I did put my hands to [sic] her undies.
You touched her on the vagina?---Once I put my hands in, I pulled it out right away.
She told you to stop?---No.
But you didn’t stop?---This is what she said: she said, ‘Mr Zhang, wait a minute.’
She said she was going to call the police?---She didn’t say that.
You didn’t stop?---I did stop.
She told you her boyfriend was on the way?---She didn’t tell me that.
You didn’t stop?---I did stop.
She bit you on the lip?---No.
You said to her, ‘[YQH], how could you do this to me’? I didn’t say that.
In re-examination, the applicant gave evidence that the complainant had given him ‘very strong sex implication [sic]’, and he thought the two of them ‘would definitely have that kind of relationship’.

The complaint evidence

The prosecution adduced evidence of complaint from both the complainant and her boyfriend.
In her evidence-in-chief, YQH said she was picked up by Mr Lin at the carpark rather than the Oaks Apartments, because she ‘didn’t tell him that [she] went to an apartment’, and ‘only told him that [she] had lunch’. Her evidence continued:
[PROSECUTOR]: When you’re in the car with Mr Lin were you upset?---That’s correct, I was upset.
Were you crying?---Yeah, I – I was.
Did Mr Lin ask you what was wrong?---Yeah, he did.
Right. And what did you tell him? What did you tell Mr Lin when he asked you what was wrong?---At the beginning I didn’t want to tell him what happened. So, um, what I told him was that, ‘Oh, it was nothing and I had lunch and I had a few – I had a few to drink’.
And then did Mr Lin say anything further to you after you told him this?---So when we were driving on the road and I was telling him this and he was asking me that, ‘How could you have just have lunch and then be crying like this? And you definitely seem wrong, so what happened?’.
Yes. And what did you say to him what he asked you that?---He kept asking me these questions and then to (indistinct). I couldn’t – I – I gave up and then I just told him everything.
All right. To the best of your recollection, what was it that you told Mr Lin as you were driving home?---So I told him that, ah, ‘You have no idea what happened to me and you have no idea why I’m crying’. And, ‘Oh, you keep asking so many questions’, and I was – I was telling him, um, what happened to me in that apartment. And I also – I also told him that I was touched.
All right. What did you tell Mr Lin that happened to you in that apartment?---I told him that that Zhang guy, he took me to a serviced apartment and he offended me, he touching me, was trying to kiss me.
All right. And then from that point, did you and Mr Lin go to the Malvern police station?---We did.
All right. And how did the decision come about to go to the Malvern police station?---After he heard I said what happened, he said, ah, ‘Well, we must take this to the police and we – we have to do this right away’, and – but at the beginning I was iffy about going to the police but he was, like, he was suggesting strongly that we must see a police and tell them about this.
All right. Why were you iffy about going to the police?---Because this is a terrible thing that happened. And also I didn’t want my boyfriend to worry about me. And also I didn’t want to get blamed for what happened. And so that’s – really didn’t want him to be worried about me.
All right. And after Mr Lin told you that you needed to go to the police, what did you think after he told you you needed to do that?---Ah, there was nothing I could do.
When cross-examined by defence counsel, YQH also gave the following evidence concerning what she said to Mr Lin in the car:
[DEFENCE COUNSEL]: And when you got to the police station, you felt you had no choice but to go inside?---No, because on the way to the police station, we were talking in the car. He kept asking me questions, and I was just telling him to stop asking me questions because I got really worked up, and also, I was crying, and I said, ‘Stop asking’, and he said, ‘No, it’s okay. Just tell me. Just tell me’.
And you didn’t?---Yes. I – I did tell him after that because after I told him about a little bit of what happened, he said that, ‘Well, then we have to report this to the police’. I only told him about something happened that Zhang did to me that he was – he was being undecent [scil, indecent] towards me. That’s what I tell him, and then he said, ‘Well, then if this had happened, then you should go to the police’. I didn’t go into the details, and then we went to the police, and also, I had a meltdown on our way home.
Mr Lin gave the following evidence:
[PROSECUTOR]: All right. Can you tell the jury about that conversation, please?---So, um, at the time, because [YQH] had mentioned that someone had hidden the – the ticket – and then she was – and then – so I was asking her, ‘So who had been in the car?’ and also why – why would the – um, the – um, why – why would the ticket – ‘why you couldn’t find the ticket?’ So the questions I was asking at this point were different from the questions I was asking before. And [YQH] started talking to herself, and then she was saying something, like, um, ‘Why would this person, who looked like an uncle – and why would he did this – did this and that?’ And then – so I was – started to feel really strange, so I started to ask her more questions. And because I was driving at the time, it was not good for me to have this conversation with her. So I pulled over on the side, and then I asked her more questions about what happened and also, ‘Has anything happened to you?’ And then [YQH] told me that someone touched her and also – but she was – she said someone touched her, but she wouldn’t go into details. And then – so I asked that – I asked that, um, ‘If you don’t want to talk about, um, what happened to me, then I can take you to the police. You can talk to the police’. But she didn’t want to go to the police. And then I said – I was telling her that, ‘If you feel like you need to tell this to someone, then I – I can, um, take you to the police. You know, they might be able to help’.
...
Okay. And why did your tone of voice change before you pulled over?---Because she started to cry, um, severely.
Okay. When you say she started to cry severely, what do you mean by that?---Just cry.
... After seeing her crying, what did you tell her – or what did you say to her?---So at the beginning, I was trying to comfort her to calm her down. I was telling her to stop crying and then, you know, ‘Just tell me what happened’, but then she lost control herself, and so I suggested that we should go to the police.
All right. When you say she lost control, what do you mean by that?---Because she raised her voice, and, also, she was asking why I have so many questions. And she had had a bad day, and she was not happy about it. She didn’t want to talk about it. Why am I ‘still forcing her about these questions?’ She didn’t want to answer these questions. And then she started to have some physical movements, and then that’s when I feel like we need to go to the police. Something – ah, sorry, that’s when I started to feel like something bad must have happened.
All right. When you say ‘physical movements’, what do you mean by that?---So she was waving her hands, and, also, she was, um, twisting her body, and it just seemed like she was not comfortable.
Okay. And is that when you made the decision to pull over?---Ah, pretty much at the same time. Yes.
All right. And after you pulled over, did you continue to talk to [YQH] after that?---That’s right, because that’s when we started talking about going to the police. And then – so after, ah, I pulled over, I started to drive towards the police station.
All right. And what was it that she told you that made you think that you had to go to the police station?---Um, so first of all, um, she said someone came to the car and hit [scil, hid] the parking ticket, and she said someone touched her, and then she was crying, and she said someone that was like an uncle – but then why would that person do something? And then so I figured something bad must have happened, because [YQH] wasn’t say much about it, and then so when I put everything together, I felt like we should go to the police.
All right. And as she was talking about being touched and the person that was like an uncle, can you describe her emotional state as she was saying this?---So her emotional state seemed unstable. Her eyes were red. There were snots and also tears coming out of her, and she looked – she looked scary, because she looked his she – she was in a terrible mood.
Okay. When you suggested that you go to the police station, what was [YQH’s] response?---So at the beginning, she didn’t want to go, and then she started crying. And then after I talked to her – I tried to persuade her. After about five to 10 minutes – and then she – she agreed. ‘Okay. Let’s go to the police.’

The prosecution relied on complaint evidence only as going to consistency

Significantly, the prosecution did not rely on the complainant’s representation to Mr Lin that she had been ‘touched’ as proof of the truth of that representation. Rather, the prosecution relied on her complaint as showing the consistency of her account ‘of what she says happened to her’. The manner in which the prosecution relied on the representation is reflected in the following passage of the prosecutor’s final address:
[YQH] tells Mr Lin that someone had touched her. Someone like an uncle and so what we have now, ladies and gentlemen, is what I suggest is consistent accounts of what she says happened to her. Now, you might think, and you’ll hear a little bit more about this from Her Honour probably tomorrow, that when a person perhaps is relaying to different people what may have happened to them in the course of a sexual assault, it might not always be the same. They’ll say certain things to one person and different things to another. You might think that that’s entirely normal. But what you can see, particularly from what she says to Mr Lin and then again what she says to the police officer when she attends at the Malvern police station is there’s a consistency in what she says. She told Mr Lin that someone touched her, someone like an uncle …

Discussion between trial judge and counsel concerning jury directions

Section 12 of the Jury Directions Act 2015 (‘JDA’) requires prosecution and defence counsel to request that a trial judge give (or not give) particular directions with respect to the matters in issue in the trial (and the evidence in the trial relevant to the matters in issue).
By virtue of s 15 of the JDA, the trial judge must not give the jury a direction that has not been requested unless the provisions of s 16 are engaged. In turn, s 16(1) provides that the trial judge must give the jury a direction if the trial judge considers that there are ‘substantial and compelling reasons for doing so’ even though the direction has not been requested. Before he or she does so, however, s 16(2) requires the judge to inform prosecution and defence counsel that he or she is considering giving the direction, and invite submissions from them about the direction and whether there are substantial and compelling reasons for giving it.
In the present case, the discussion between trial counsel and judge contemplated by s 12 was sparing. It fell into two parts. The first part occurred shortly before the afternoon adjournment, when the applicant’s evidence was yet to be completed. In brief outline, the judge said she considered it appropriate to give directions on consent and belief in consent; and she asked counsel whether they wanted directions on the accused as a witness; good character; distress; intoxication; prior inconsistent statements; and delay in complaint. The prosecutor indicated he wanted such directions. When the judge mentioned motive to lie and a ‘direction on complaint’, defence counsel asked to consider the matter overnight. The prosecutor then added that the ‘only other one that comes to mind’ is giving a direction on the ‘differences’ in the ‘complainant’s accounts’.
The second part of the discussion concerning jury directions occurred after the final addresses of both counsel had been completed. During that part of the discussion the judge indicated to counsel that she ‘was going to give’ directions on several topics. One of those topics was ‘complaint evidence’, albeit that the judge gave no elaboration on what the content of the ‘complaint evidence’ direction would be, and neither counsel sought elaboration (defence counsel simply submitting that a direction on prior inconsistent statements should be given).

The judge’s charge

Notwithstanding that the prosecution had relied on the complaint evidence solely as bearing on the complainant’s credibility, in her charge the judge directed the jury that they could use the content of YQH’s complaint to Mr Lin for two purposes: both as ‘evidence in this case’ and ‘to assess her credibility’. The judge said:
Now, in this case you heard evidence that [YQH] complained to her boyfriend of being touched by an uncle figure and this is at some stage while they are driving home, not immediately but along the way because she said he kept asking the questions. Then he said, ‘I asked her more and she said “I was touched”’, so that is what is called the first complaint, and then that she is taken, at the insistence of her boyfriend, to the police station.
If you find that the complainant made this complaint in that way you can use that complaint in two ways: first, you can use the contents of what she said as evidence in this case. That is that the accused man touched her on the vagina and the breasts without her consent. It becomes evidence, if you like. And, secondly, you can use that complaint to assess her credibility. The fact that she made the complaint and the content of the complaint may show that her account of the events in question has been consistent.
In this case the prosecution submitted the fact that [YQH] complained about the alleged incident in the manner that she did makes it more likely she is telling the truth in court here. I do want to make it clear that when considering this evidence, and the fact that it can be used as actual evidence of what occurred, it is important to remember that, just because a person says something on more than one occasion, that does not mean that what she says is truthful or accurate.
A false or inaccurate statement does not become true and accurate by virtue of being repeated. In other words when you are assessing the complaint evidence you take into account that the information comes from the same person. It is not an eyewitness account, all right, but you can take it into account in assessing credibility.

The judge then summarised the arguments of counsel:
The prosecution says to you, well, yes, she is upset, her boyfriend notices this. He asks her a number of questions. The evidence of Mr Lin was that eventually she got to a point where she was very distressed, she was crying, and he stopped the car and he said, ‘Tell me what is going on’. And his evidence was he tried to speak more kindly to her and that is when she said, ‘I saw him as an uncle and I was touched’, and she would not tell him anymore.
So he said, ‘All right, we’re going to the police station’, and she did not want to go at first but they went. And while she was there, says the prosecution, she made the complaint to police. And the law says when looking at the circumstances of the way in which a complaint is made it can be used by a jury as evidence of consistency, making it more likely that what she says is true. The defence says to you, ‘Be careful here. This is a lady who’s had a bad day. Everything’s gone wrong’.
You know, she has gone along, she has wanted to get a job, she has wanted to get one on one with this man. There is a fiasco at the car park, that goes wrong. Things do not work out at the flat, her boyfriend is furious with her. He has come along, he is angry with her and then he is at her. And then she goes, ‘Oh, he touched me’. And he says, ‘Oh, is that right? Let’s go to the police station’. She says, ‘I don’t want to go’, and he says, ‘No, we should go’, and she goes. So says the defence, you cannot be satisfied that the complaint operates in that way.
No exception was taken to any of these directions. In particular — and significantly — the applicant’s counsel at trial did not impugn the judge’s directions on the use to which the jury could put the complaint evidence.

The submissions of the parties in this Court

In written submissions in support of the ground of appeal, senior counsel for the applicant submitted that the complaint evidence could ‘at most’ only legitimately be used by the jury as going to the complainant’s credibility and the consistency of her account.
Counsel for the applicant submitted that it was a ‘significant misdirection’ for the judge to instruct the jury that they could use the evidence of what the complainant said to Mr Lin as evidence that the applicant ‘touched her on the vagina and the breasts without her consent’. The applicant’s counsel submitted that YQH’s ‘non-specific’ complaint that she had been ‘touched’ could not legitimately be used by the jury as evidence that the applicant had touched her on the vagina without her consent.3F[4] Nor could a non-specific complaint that ‘someone had touched her’ be used as evidence that the applicant had touched the complainant’s breast without her consent. Counsel contended that such a non-specific complaint said nothing about where on the body the complainant was touched; the nature of the touching; or whether the touching was with or without the complainant’s consent.
[4]Counsel cited Watson v The Queen (2010) 204 A Crim R 30, 34–5 [11]–[20] (Nettle JA and Beach AJA, Redlich JA agreeing at [27]).
In oral submissions, senior counsel for the applicant submitted that the discussion between counsel and judge required by s 12 of the JDA was ‘threadbare’. He submitted that the prosecution had relied on the complaint evidence as showing the complainant’s ‘consistency’, and had not relied on the content of the alleged complaint as proof of what had been asserted. Importantly, neither the judge nor counsel had identified what the ‘asserted fact’ was that the complaint evidence might establish. Senior counsel contended that the complainant’s assertion to Mr Lin that she was ‘touched’ was incapable of being construed as an assertion that she was touched without her consent, whether on the breast or vagina.
The applicant’s counsel submitted that there was as a result a significant misdirection occasioning a substantial miscarriage of justice.4F[5] The fact that neither the prosecutor nor defence counsel took exception to the misdirection cannot alter the fact that the jury were misdirected and that a substantial miscarriage of justice has occurred.5F[6] In oral submission in reply, senior counsel contended that there was no substantial and compelling reason for giving the challenged direction. And absent the misdirection, counsel submitted, the applicant’s conviction was not inevitable.
[5]Counsel cited Awad v The Queen (2012) 275 CLR 421, 431–5 [24]–[40] (Kiefel CJ and Gleeson J), 444–5 [74]–[78] (Gordon and Edelman JJ).
[6]Counsel cited Seccull v The King (2022) 69 VR 454, 470–71 [51] (Priest AP).
In both oral and written submissions, counsel for the respondent submitted that no challenge was made to the admissibility of the complaint evidence by the applicant’s trial counsel. Once it was admitted, counsel submitted, the complaint evidence could be used in proof of both the existence of the asserted facts and to assess the complainant’s credibility. While the common law limited the use of complaint evidence to the jury’s assessment of the complainant’s credibility, on the basis that the complaint evidence was otherwise hearsay, ss 60 and 66 of the Evidence Act 2008 (‘the Act’) changed this position to allow complaint evidence to be used to prove the existence of an asserted fact (subject to statutory limitations). In oral submissions, counsel for the respondent submitted that the ‘asserted fact’ was that the applicant’s touching of YQH was ‘without consent’.
When ss 12, 15 and 16 of the JDA were raised in the course of the hearing — counsel at neither end of the Bar table had referred to these provisions in their written submissions6F[7] — counsel for the respondent submitted that the judge had flagged with counsel that she intended to give directions on ‘complaint’ evidence. Neither counsel demurred. Given that, since the promulgation of the Act, courts and lawyers have understood ‘complaint’ evidence to embrace both complaint as understood by the common law, and previous representations admitted under s 66 of that Act as evidence to prove an asserted fact, it is clear that the judge had put trial counsel on notice that she would direct the jury that evidence of complaint could be used in those two ways. By his silence, defence counsel must be taken as having agreed to that course.
[7]Counsel for the respondent had referred to s 12, but not ss 15 and 16. She had submitted that, in light of s 12, it was significant that ‘no request was made by the applicant’s trial Counsel to limit the relevance of the complainant evidence to the credibility of the complainant’.
The respondent’s counsel submitted that, in addition to directing the jury about the two ways the complaint evidence could be used, the trial judge gave the further directions of the kind described in ss 44B and 44C(2) of the JDA, notwithstanding that these further directions are not required to be given by those provisions, and they had not been requested by defence counsel. These further directions were favourable to the applicant.
Ultimately, the respondent’s counsel submitted that, when viewed in the context of the charge as a whole, the impugned directions appropriately instructed the jury as to the ways in which they could use the complaint evidence with respect to the critical issue, consent. In oral submissions counsel submitted that, in any event, the applicant’s conviction was inevitable.

Discussion

There was no dispute at trial that the applicant had touched the complainant’s breast and her vagina. The only disputed issues were consent,7F[8] and belief in consent.8F[9]
[8]See Crimes Act 1958, ss 36 and 36AA. See also JDA, pt 5 (div 1AA, 1 and 1A).
[9]See Crimes Act 1958, ss 36A. See also JDA, pt 5 (div 1AA, 1 and 1A).
In our view, there can be no doubt that the complaint evidence in the present case was admissible, and properly could be used by the jury to buttress the complainant’s credibility. Indeed, we did not take counsel for the applicant in this Court to challenge that this was so.
At common law, evidence of complaint with respect to a sexual offence was admissible if made shortly after the alleged offence. The evidence was not admissible as proof of the content of the complaint, but simply to buttress the complainant’s credibility, by demonstrating consistency with the account subsequently given in court by the complainant.9F[10] Hence, insofar as they permit evidence of a complaint to be admitted to prove the truth of the content of the complaint, ss 60 and 66 of the Act constitute a significant departure from the common law position.10F[11]
[10]R v Freeman [1980] VR 1, 4 (Starke, McInerney and Murphy JJ).
[11]In relation to child complainants, this departure was reflected, from 2006, in (now repealed) s 41D of the Evidence Act 1958 (now the Evidence (Miscellaneous Provisions) Act 1958). See Watson v The Queen (2010) 204 A Crim R 30.
It should be understood, however, that in order for a complaint to be admissible at common law, it was not necessary that the complaint contain precise details of the alleged conduct founding the relevant charge. So much was made clear by the Court of Criminal Appeal in Lazos.11F[12]
[12]R v Lazos (1992) 78 A Crim R 388 (Crockett, Marks and Coldrey JJ) (‘Lazos’).
In Lazos, the applicant was convicted of four counts of threatening to kill (counts 1, 2, 5 and 6), one count of indecent assault with aggravating circumstances (count 3), and one count of rape with aggravating circumstances (count 4). At trial, it was alleged that, shortly after 10.30 am on 24 January 1991, the applicant attacked the complaint, ‘V’, in the residence that she shared with her husband, ‘M’, and their three-year-old child, while her husband was at work. The prosecution case was that the applicant, armed with a knife, threatened to kill her daughter (who was present in the home) and her husband. He then had V touch his penis and he touched V’s breasts, before penetrating V’s mouth with his penis. The applicant then had V masturbate his penis to the point of ejaculation. He then made further threats to kill V’s husband and child.
When M arrived home shortly after midday, M observed his wife to be upset and crying. In response to his inquiry as to what had happened, she told him that she had been threatened with a knife (the first conversation). M then went back to work. Not long afterwards, at about lunchtime, V telephoned her mother-in-law, ‘Mrs L’. She told Mrs L that a man had produced a knife and threatened her. Mrs L then went immediately to V’s home, and observed V to be upset and crying. V also appeared to be frightened. She told Mrs L that someone had shown her a knife, threatened her and asked her to go into the bedroom, but she would not say anything more (the second conversation). M returned from work a little later, at about 3.00 pm, and questioned V further as to what had occurred. At that stage, V provided M with full details of the morning incident (the third conversation). The two then went to the police station to report the matter.
Seeking leave to appeal against conviction, the applicant contended that only the third conversation ‘could be construed as being of a sexual nature and it was an essential pre-requisite to admissibility that there be some sexual connotation to the complaint made’.12F[13] Rejecting those contentions, the Court observed that, in Saragozza,13F[14] the Full Court had left open the question of whether admissibility was dependent upon whether a complaint was capable of being viewed as of a sexual nature,14F[15] and said:15F[16]
The purpose of such a complaint is referred to in Freeman [1980] VR 1 as being to buttress the complainant’s credit as a witness by demonstrating consistency. The complaint of V was of conduct which formed an integral part of the commission of the sexual offence about which she deposed in evidence. To say that the complaint was capable of relating only to the threats themselves may be regarded as artificially isolating them from the sequence of events giving rise to the sexual offences.
These complaints were consistent with what was alleged to have occurred and viewed in the context of the totality of the alleged conduct were capable of buttressing V’s credit as a witness.
In these circumstances we are disposed to regard the evidence of the complaints relating to the threats with the knife as being admissible pursuant to the doctrine of recent complaint.
However, the matter does not end there. The complaints embodied in these earlier conversations must be seen in the context of the 3 pm conversation between M and V in which an assault of a sexual nature was clearly revealed. …
[13]Ibid 393–4.
[14]R v Saragozza [1984] VR 187, 198 (Starke, Kaye and Brooking JJ).
[15]Lazos, 394 (Crockett, Marks and Coldrey JJ).
[16]Ibid 394–5.
Although, as we have said, we did not understand the admissibility of YQH’s complaint at common law to have been the subject of any real challenge in this Court, we consider it to be plain that YQH’s complaint to Mr Lin was admissible at common law to buttress the credibility of her account that the applicant’s touching of her breast and vagina was without her consent. As was the case in Lazos, when viewed in its context, YQH’s complaint that she was ‘touched’ by the applicant, an uncle figure, clearly was admissible as bearing on the nature of the touching. When viewed in the setting in which it was made, it appears to us to be incontrovertible that her complaint to Mr Lin was consistent with the sexual nature of what YQH alleged had occurred. Indeed, we consider that, once it is accepted that the complainant made the utterances attributed to her, it would be artificial to view the complaint evidence in any other way. In our opinion, given the fact that the applicant had touched the complainant’s breast and vagina was not in issue — the only issues being consent and belief in consent — the context in which the complaint was made was capable of bearing on the consistency of YQH’s account that she did not consent to the touching.

Moreover, notwithstanding its hearsay nature, we also consider that the evidence of YQH’s complaint to Mr Lin was admissible in proof of the fact that the touching was without the complainant’s consent. That follows from ss 60 and 66 of the Act.
The ‘hearsay rule’ is set out in s 59(1) of the Act, which provides that evidence of a previous representation made by a person ‘is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’. By virtue of s 59(2), the fact reasonably supposed to be asserted by the previous representation is an asserted fact. Various exceptions to the hearsay rule are, however, contained in succeeding provisions of the Act.
One such exception, applying to a criminal proceeding, is found in s 66(2) of the Act, which is concerned with ‘first hand hearsay’. So far as relevant, s 66(2) provides that the hearsay rule does not apply to evidence of the previous representation that is given by the person who made the representation (or a person who saw, heard or otherwise perceived the representation being made) if the person who made the representation has been (or is to be) called to give evidence, and, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
Even without s 66(2), s 60(1) provides that the hearsay rule does not apply to evidence of a previous representation admitted because it is relevant for a purpose other than proof of an asserted fact. The fact that the complaint evidence in this case was admissible to buttress the credibility of the complainant’s account that the touching was without her consent therefore meant that the evidence could be used as evidence of the fact that the touching was without the complainant’s consent.
In light of the fact that one of the principal thrusts of the applicant’s case in this Court was that YQH’s complaint to Mr Lin was, because of its supposedly non-specific nature, inadmissible to prove an asserted fact, certain observations from Hermanus bear repeating:16F[17]
At common law, a complaint was admissible if it expressed a grievance or accusation of a sexual nature. It was led to buttress credibility by demonstrating consistency. To be admissible, however, it was not necessary that the complaint contain precise details of the conduct foundational of the charges.17F[18] Unlike complaint evidence at common law, however, where the principal touchstone of admissibility was the complaint having been made at the first reasonable opportunity, s 66 of the Evidence Act 2008 requires an ‘asserted fact’18F[19] to be fresh in the memory before a previous representation is admissible. Despite these differences — and, of course, subject to s 137 — there is no reason for concluding that a representation of an asserted fact that is fresh in the memory falls to be excluded because it does not precisely reflect the charged conduct. That said, there will be some circumstances where a previous representation is so vague or uncertain that any probative value is non-existent or slight, and, if slight, is outweighed by the danger of unfair prejudice. But that is not this case. ...
[17]Hermanus (a Pseudonym) v The Queen (2015) 49 VR 486, 513 [118] (Priest JA). (Citation as in original.)
[18]R v Lazos (1992) 78 A Crim R 388 (Crockett, Marks and Coldrey JJ).
[19]See Evidence Act 2008, s 59.
When asked during oral argument to identify the relevant ‘asserted fact’, counsel for the respondent submitted — notwithstanding that neither the judge nor trial counsel had considered the matter — that the fact asserted by the complainant’s previous representation to her boyfriend was that the applicant’s touching was ‘without [her] consent’. In our opinion, had a similar submission been made to the trial judge — assuming that the prosecution had in the first place sought to rely on the evidence in that manner — it would have been permissible for the judge to allow the prosecution to rely on the evidence in that way. It would also have been permissible for the judge to have given directions to the jury similar to those that she in fact did. We consider that, once it is accepted that YQH made the representation to Mr Lin that she was ‘touched’, the representation can bear no sensible meaning — given the context in which it was made — other than that she was ‘touched’ without consent. Indeed, in ordinary discourse, the expression ‘touched’ is not uncommonly used to convey the notion of non-consensual touching.
Further, we consider it to be significant that, when the judge had the ‘threadbare’ discussion with counsel under s 12 of the JDA concerning the directions that she contemplated giving, defence counsel did not — as he was bound by s 12 to do — ‘request that the trial judge … not give … to the jury particular directions in respect of’ the complaint evidence. In the circumstances, by his acquiescence in the course foreshadowed by the judge, counsel must be taken to have ‘requested’ those directions. Thus, insofar as defence counsel did not expressly request the judge to give the directions that she ultimately did concerning the use that could be made of the complaint evidence, we consider that there was still compliance with s 12.

As to that, we consider that the submission made by the respondent’s counsel that, once the judge indicated that she intended to give directions concerning ‘complaint’, defence counsel would have understood that the judge intended on giving directions as contemplated both by the common law and by ss 60 and 66 of the Act, must be accepted. Our opinion is fortified by the fact that, once experienced senior counsel for the defence heard the judge direct the jury that they could ‘use the contents of what [the complainant] said as evidence in this case’ — that is, that the applicant ‘touched her on the vagina and the breasts without her consent’ — he took no exception. We interpret counsel’s failure to take an exception to strongly indicate, first, that counsel was well aware in advance that that the direction would be given; and, secondly, that he was satisfied that the substance of the direction, once given, was proper. In particular, we regard counsel’s failure to challenge the direction as an indication that he was satisfied that YQH’s evidence that she was ‘touched’ legitimately could be used by the jury in the manner they were directed.
Prior to the enactment of s 276 of the Criminal Procedure Act 2009 (‘CPA’), this Court recognised that a failure to seek an explicit correction of a misdirection will not always preclude a finding on appeal that there has been a substantial miscarriage of justice. As Callaway JA observed in Clune, there was ‘no inflexible rule in Victoria that an exception must be taken at trial, nor is it permissible to formulate general rules fettering the discretion of this court on a criminal appeal to allow a new point to be raised or our duty to rectify a substantial miscarriage of justice’.19F[20] But as was also recognised, the failure of experienced defence counsel to take exception to erroneous directions in itself is an indication that
counsel did not regard the directions as other than adequate to convey to the jury the relevant law as it related to the evidence in the trial and the cases being made to the jury on that evidence. It is the obligation of counsel, if he or she thinks that a direction or omission to direct is significant in the context of the trial, to take exception and ask the judge to redirect.20F[21]
[20]See R v Clune (No 2) [1996] 1 VR 1, 6 (Callaway JA, Winneke P and Crockett AJA agreeing).
[21]R v Osland [1998] 2 VR 636, 651–2 (Winneke P, Hayne and Charles JJA).
Although the question whether there has been a substantial miscarriage of justice s 276(1)(b) and (c) of the CPA must now be approached in conformity with the guidance provided in Baini21F[22] and Awad,22F[23] the forensic conduct and decisions of counsel at trial must, in our view, remain relevant to an assessment of whether an asserted error or an irregularity in, or in relation to, a trial has resulted in a substantial miscarriage of justice.
[22]Baini v The Queen (2012) 246 CLR 469 (‘Baini’).
[23]Awad v The Queen (2022) 275 CLR 421 (‘Awad’).
For the foregoing reasons, we are not satisfied that, as the result of an error or an irregularity in, or in relation to, the trial, or for any other reason, there has been a substantial miscarriage of justice.
But even were we were satisfied that there had been a material failure to comply with the provisions of the JDA, we would still not be satisfied that such non-compliance resulted in a substantial miscarriage of justice.
If, for the sake of argument, one assumes that neither the prosecutor nor defence counsel requested ‘particular directions’ with respect to complaint in accordance with s 12 of the JDA — since, although the judge appears to have raised the possibility of giving a direction on complaint evidence, neither counsel made an express ‘request that the trial judge give, or not give, to the jury particular directions in respect of’ it — then ss 15 and 16 of the JDA were engaged. That being so, s 15 prevented the judge from giving a direction not ‘requested under section 12’ unless the provisions of s 16 were animated.
Importantly, s 16 provides that the trial judge can only give a direction if he or she ‘considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12’. In this case, it is clear that the trial judge did not make a distinct finding that she considered there to be substantial and compelling reasons for giving a direction (the mere fact that she gave the direction being incapable of being construed as a tacit indication that the judge turned her mind to the issue of whether there were substantial and compelling reasons for giving it).
Even had ss 12, 15 and 16 of the JDA been brought into play, however, so that the judge’s failure to comply with ss 15 and 16 constituted an error or irregularity in the trial, we still would not conclude that there had been a substantial miscarriage of justice.
In our view, the impugned directions simply reflected how — given the operation of ss 60 and 66 of the Act — the complaint evidence was apt at law to be utilised by the jury. Trial counsel must be taken to have understood this. That the judge gave directions consistent with this position could hardly be thought to give rise to a substantial miscarriage of justice despite any failure on the part of trial counsel to request a direction in accordance with the JDA.
Moreover, even if it be assumed that the judge erred in directing the jury that they could use YQH’s complaint to Mr Lin as evidence of the fact that she was touched in the manner alleged without her consent, it will be remembered that the judge gave balancing directions to the jury that she was not required by the JDA to give. Thus, she directed the jury, first, that although they could use the complaint as evidence of what occurred, ‘it is important to remember that, just because a person says something on more than one occasion, that does not mean that what she says is truthful or accurate’; and, secondly, that when they were assessing the complaint evidence, they must ‘take into account that the information comes from the same person’.
In the circumstances, beyond buttressing the complainant’s credibility, we consider that the complaint evidence — even if used in the manner contemplated by ss 60 and 66(2) of the Act — could have made no difference to the jury’s assessment of the prosecution case. In other words, even were it considered to have been an error or irregularity for the judge to have directed the jury in the manner that she did, we are satisfied that, in the particular circumstances of the trial, the error or irregularity could not have made — and did not make — a difference to the outcome of the trial.23F[24] The putative error or irregularity could not possibly have affected the result of the trial.24F[25]
[24]Baini, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[25]Ibid 481 [33]; see also Karam v The King [2023] VSCA 318 [216]–[226] (Beach, McLeish and Kennedy JJA).

Conclusion

In light of these conclusions, there would be no utility in granting the application for extension of time. It should be refused.

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[2024] VSCA 137

19 June 2024