BOCHKOV, Vladimir v Regina [2009] NSWCCA 166 | Case summary

Court of Criminal Appeal (NSW)|2009-05-29|Before: Giles JA, Buddin J, Harrison J

CITATION: BOCHKOV, Vladimir v Regina [2009] NSWCCA 166

JUDGMENT OF: Giles JA at 1; Buddin J at 127; Harrison J at 128

CATCHWORDS: Criminal law - sexual intercourse without consent - whether Crown could present case on basis of absence of consent in fact, alternatively consent under mistaken belief as to identity of other person - whether required alternatively framed counts in indictment - whether recklessness was part of Crown case - consideration of direction as to recklessness - accused's knowledge of absence of consent an element in offence - honest belief in consent negatives knowledge in fact - but recklessness another way of establishing knowledge as the element.

Banditt v The Queen [2005] HC 80; (2005) 224 CLR 262; Director of Public Prosecutions v Morgan (1996) AC 182; CASES CITED : R v Henning (CCA, 11 May 1990, unreported); R v Isaacs (1997) 47 NSWLR 374; R v Kitchener (1993) 29 NSWLR 696; R v Tolmie (1995) 37 NSWLR 660.

PARTIES: Vladimir Bochkov - Appellant The Crown - Respondent

COUNSEL: G Nicholson QC - Applicant D M L Woodburne SC - Respondent/Crown

SOLICITORS: William Whitby Lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT DATE OF DECISION: 15 December 2008 (sentence)

IN THE COURT OF CRIMINAL APPEAL CA 2008/6373 DC 08/11/0359

GILES JA BUDDIN J HARRISON J

Wednesday 8 July 2009 Vladimir BOCHKOV v REGINA Judgment 1 GILES JA: The appellant stood trial before Solomon DCJ and a jury on three counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. He was found guilty on all counts, and was sentenced to a term of imprisonment. 2 This is an appeal against conviction, on the ground - "The verdicts of guilty on each count ought to be set aside as there was a miscarriage of justice arising from:

(i) The conduct of the trial by the Trial Advocate relying upon alternate and inconsistent bases of criminal responsibility concerning absence of consent, mistaken consent and vitiation of consent and recklessness;

(ii) Directions given by his Honour concerning consent and vitiation of consent and knowledge;

(iii) The late election by the prosecution to rely on recklessness and Section 61R(1) of the Crimes Act, 1900;

(iv) Directions given by the Trial Judge concerning recklessness and Section 61R(1) of the Crimes Act, 1900;

(v) Directions given by the Trial Judge concerning vitiation of consent under Section 61R(2) of the Crimes Act, 1900;

(vi) Directions given by the trial judge concerning the defence of honest and reasonable mistake as to consent;

(vii) By the conduct of the prosecution in introducing opinion and hearsay evidence concerning the ability of the appellant to comprehend and express himself in the English language;

(viii) Tactical considerations in and consequences of the framing of the Crown case."

Evidence in the Crown case 3 Evidence in the Crown case was given by the complainant, and by each of the men Robert, Alex and Igor next mentioned. Evidence was also given by a police officer who responded to the complaint and a police officer involved in its investigation, and by a doctor who examined the complainant. In what follows I focus on evidence particularly relevant to the ground of appeal. 4 The complainant lived in a studio apartment. She had a boyfriend, Robert. One afternoon they met by arrangement at a café. The complainant was introduced by a mutual friend of Robert, Igor, to the appellant and another man, Alex. 5 That evening the complainant and the four men met again at a café close to the apartment. Alcohol was consumed. The complainant and Robert left the café and went to the apartment, where they had consensual sexual intercourse. When they left the apartment to return to the café they found the three other men outside the apartment block. The three men were speaking in Russian, and appeared to have been arguing. The complainant was concerned that the neighbours would be disturbed, and suggested that they all return to the apartment. 6 They did so, at about 9.30 pm. The complainant and the appellant had some wine. The complainant gave evidence that about three times the appellant pulled her into the bathroom and shut the door, and said that he liked her and "I want a woman like you". She said that each time she told him that she was not interested in him, but was interested in Robert and they were together. When the appellant spoke to the complainant, he spoke in English. 7 At about midnight the men were talking about going out, but the complainant wanted to go to bed because she had to work the next day. Robert, Alex and Igor all left. The appellant remained, and the complainant told him that he had to go. He said that he did not want to go. 8 Then Robert returned with a DVD, saying that he had changed his mind and asking if he could stay and watch it. The complainant agreed, and said that the appellant could also stay and watch it. 9 The apartment had no chairs, and they sat on the bed to watch the DVD. The complainant lay facing the wall with her back to Robert, who sat behind her. The appellant was on the end of the bed with some pillows behind him. The complainant fell asleep. 10 The complainant woke up with someone's arms around her. She was still lying facing the wall. She assumed that it was Robert. 11 According to the complainant, she was still wearing her dress but her underpants had been pulled down. An arm around her moved down and a finger was put in her vagina. She pushed the person away and said, "No, I don't feel like this". The person tried again, and she said no again. This went on for about five minutes. The complainant said that she "froze" from shock, thinking that it was Robert and not understanding why he was doing what he was doing. 12 The person tried to put his penis into her vagina, from behind as she continued to lie facing the wall, with partial success. The complainant did not recall how long this went on, but it felt like about ten minutes. She said no loudly and sternly and the person said yes in a soft voice with a Russian accent, about five or six times. The complainant did not think the voice was of someone other than Robert. 13 The person stopped, and the complainant "dozed off for a couple of seconds". She then became aware that the person had moved to the bottom of the bed and was performing oral sex, putting his tongue in her vagina. Again she went into shock, and she said it felt as if this went on for about five minutes. 14 The complainant tried to kick the person off, and at that point realised that it was not Robert, but the appellant. She pushed the appellant away and screamed at him to leave. At that point Robert came back into the apartment, having earlier left to meet someone, and the complainant told Robert that the appellant had sexually assaulted her. The appellant told Robert in English that nothing had happened. There were more exchanges, in Russian, between the two men. 15 The complainant called the police, and eventually the appellant left. The record of the OOO call included - "[The complainant] I have this guy that was in my room fucking touching me, trying to rape me. This friend of my, my boyfiend, who I thought was my boyfriend, he was in my room, in my bed touching me. … [The complainant] He will not leave my flat, because he says he's left his shoes here. I don't give a fuck I just want him gone. Just, he was fucking touching, trying to touch me, he was trying to have sex with me and he won't leave. … [The complainant] Get out, do you understand, the police are on their way. I thought it was my boyfriend was just forcing me, you know, and then I turned around and realised it wasn't even him. 000 Operator Do you know who this guy is? Do you know him? [The complainant] No. he's a friend of my boyfriend. I just met him tonight. 000 Operator Has he forced you into sex? [The complainant] No, but he was touching me. He was, he was going down on me and he was touching me. He was trying to have sex with me. 000 Operator OK. [The complainant] He was trying to have sex with me and I kept saying no but he kept going." 16 The police attended at the apartment. The complainant was taken to a hospital, and then the police station. The evidence of the attending police officer included that the complainant said that she "thought it was Robert until I turned around". The notes of the examining doctor included - "Lying in bed with the boyfriend. Another male person was also present. Went to sleep. Remembers next that someone had his arms around her, thought it was her boyfriend. Began to touch her about the vaginal area, there was an attempt at penile penetration and thought it was rough. At that stage did not want penile penetration even though she did not realise that it was not her boyfriend. Stated that she did not want penile penetration to the other person. Still tried to have penile penetration. She pushed him away, did not realise that it was not her boyfriend. Was persistent but she kept pushing him away. She wrapped the blankets around her. He then began to have oral sex with her. She was lying on her side while he licked her vagina with his tongue. She pushed him away and he tried penile penetration again, pushed him away again. Realised that it was not her boyfriend. Got up, pushed him out of bed, began yelling. Then her boyfriend entered the room." 17 The evidence of the investigating police officer included evidence in relation to the appellant's use of English. I will say more of this when dealing with para (vii) of the ground of appeal. 18 In cross-examination the complainant agreed that the appellant was shorter and stockier than Robert, and that at the time Robert was clean shaven and the appellant had some facial hair. Robert spoke fairly good English but with an accent that was between mild and strong. The appellant spoke English with a strong accent and when he spoke to his friends he spoke in Russian. In cross-examination of Robert it was elicited that at some time he had told the appellant that the complainant was not his girlfriend. I will later briefly refer to some further cross-examination of the complainant.

The appellant's evidence 19 Again I focus on evidence particularly relevant to the ground of appeal. 20 The appellant gave evidence through a Russian interpreter. He did not deny the sexual intercourse, although he said that the order was finger in vagina, oral sex and penis in vagina, all with the complainant lying facing the wall. In relation to each count he said that he believed that the complainant consented to what he did, and that he did not at any time think that she did not want him to do what he did. 21 The appellant said that when they were all at the apartment he and the complainant went once into the bathroom, because he asked her something and she showed him something but he could not recall what it was that she showed him. He said that while he was in the bathroom he paid the complainant a compliment, trying to say that she was a pleasant, nice looking girl and he wished he had a girl like her and saying in English "I want a woman like you". 22 They were watching a DVD, lying on the bed, when someone rang Robert on his mobile phone and Robert left. The appellant moved closer to the complainant and lay on his side and embraced her. He began to caress her, moving his arm on her belly and her breast. He was sure that the complainant was not asleep, and she took his arm or hand and moved it to her leg, to near the hip area. 23 The appellant said that he put his hand into the complainant's underpants and tried to insert his finger into her vagina. He was exciting the complainant, and her breathing became heavier. He removed the underpants, and the complainant moved herself up a little bit. He moved down the bed and began licking the complainant's vagina and then inserted his penis from behind. He heard sounds, somebody came in and he stopped. The complainant pushed him away. At no time did the complainant ever say the words, "No, I don't feel like it", nor did she push him away or elbow him. 24 According to the appellant, he knew that the complainant was not Robert's girlfriend because Robert had said so. If he had known that the complainant was Robert's girlfriend, he would not have had sexual intercourse with her. 25 Again, I will later briefly refer to some cross-examination of the appellant.

Legislation 26 Section 61I of the Crimes Act provides - " Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years." 27 At the time particular provision was made as to absence of consent by s 61R, since repealed. Similar provision is now made by s 61HA of the Crimes Act. 28 Section 61R relevantly provided - " 61R Consent

(1) For the purposes of sections 61I, 61J and 61JA, a person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

(2) For the purposes of sections 61I, 61J and 61JA and without limiting the grounds on which it may be established that consent to sexual intercourse is vitiated: (a) person who consents to sexual intercourse with another person: (i) under a mistaken belief as to the identity of the other person, or

(ii) under a mistaken belief that the other person is married to the person, is to be taken not to consent to the sexual intercourse, and (a1) …

(b) a person who knows that another person consents to sexual intercourse under a mistaken belief referred to in paragraph (a) or (a1) is to be taken to know that the other person does not consent to the sexual intercourse, and

(d) a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse." 29 A short analysis at this point will be of assistance in considering the ground of appeal. 30 Under s 61I it was for the Crown to prove two matters in relation to consent: that the complainant did not consent, and that the appellant knew that the complainant did not consent. 31 It would be proved that the complainant did not consent -

(ii) through the pathway of "taken not to consent" in s 61R(2)(a), if the complainant consented under a mistaken belief as to the identity of the other person. 32 That the complainant did not consent was in part an artificial construct, encompassing consent under a mistaken belief by virtue of "a deeming provision which extends what might be the limited denotation of the phrase 'does not consent' in s 61I": Banditt v The Queen [2005] HC 80; (2005) 224 CLR 262 at [31] per Gummow, Hayne and Heydon JJ. Proof that the appellant knew that the complainant did not consent then depended on the basis on which absence of consent was proved. 33 If the complainant in fact did not consent, it would be proved that the appellant knew that the complainant did not consent -

(i) if the appellant knew that the complainant in fact did not consent; or

(ii) through the pathway of "taken to know" in s 61R(1), if the appellant was reckless as to whether the complainant consented. 34 If the complainant consented under a mistaken belief as to the identity of the other person, it would be proved that the appellant knew that the complainant did not consent, through the pathway of "taken to know" in s 61R(2)(b), if he knew that the complainant consented under a mistaken belief.

The Charges 35 The three counts of sexual intercourse without consent were based on the digital penetration, the penile penetration and the oral sex respectively. 36 Each of the counts in the indictment was in the same terms, namely, that the appellant - "On 4 November 2007 at Bondi in the State of New South Wales did have sexual intercourse with [the complainant] without the consent of [the complainant], knowing she was not consenting." 37 The appellant's legal advisers requested particulars. The particulars provided were - "Count 1: it is alleged the accused did have sexual intercourse with [the complainant] at the place referred to in the indictment by putting his finger in her vagina. [See paragraph 19 page 3- statement of [the complainant] dated 4 November 2007] - the Crown relies on non consent by [the complainant] in two ways (A) under s 61R(2)(a) under a mistaken belief as to the identity of the person (B) [the complainant] pushing the accused away and saying "No I don't feel like it" and using her elbow to push the [accused] away. Count 2: it is alleged the accused did have sexual intercourse with [the complainant] at the place referred to in the indictment by putting his penis in her vagina [See paragraph 20 page 4 - statement of [the complainant] dated 4 November 2007] - the Crown relies on non consent by [the complainant] in two ways (A) under s 61R(2)(a) under a mistaken belief as to the identity of the person (B) [the complainant] pushing the accused away and saying "No" in a loud voice. Count 3: it is alleged the accused did have sexual intercourse with [the complainant] at the place referred to in the indictment by licking her vagina [See paragraph 21 page 4 - statement of [the complainant] dated 4 November 2007] - the Crown relies on non consent by [the complainant] in two ways (A) under s 61R(2)(a) under a mistaken belief as to the identity of the person (B) [the complainant] pushing the accused away." 38 These particulars were concerned with absence of consent. They proposed, in reverse order to the analysis above, that the complainant consented under a mistaken belief as to the identity of the other person, and that the complainant in fact did not consent. At the trial and on appeal these were sometimes referred to as the first scenario and the second scenario, and I will adopt that convenient shorthand. 39 The particulars said nothing about the Crown's case in relation to the appellant's knowledge that the complainant did not consent.

The ground of appeal - other than paras (vii) and (viii) 40 The paragraphs for present consideration were a mixture of the conduct of the trial and the trial judge's directions. The appellant dealt with them together "as they are linked by consent, and knowledge and the provisions of Sections 61R(1) and (2) of the Crimes Act 1900". 41 It is necessary to say something of the course of the trial and identify the directions of which the appellant complained, with particular reference to the two matters of absence of consent and the appellant's knowledge that the complainant did not consent. A significant issue on appeal was how recklessness was dealt with as the basis for knowledge that the complainant in fact did not consent, and I will emphasise some references to recklessness. 42 The Trial Advocate opened in relation to these matters - "So in relation to the next element of the Crown has to prove - without the consent of [the complainant]. The Crown will prove that by calling her, giving evidence about what happened on that night. A further element the Crown has to prove is the accused either knew or was reckless as to lack of consent . The Crown will say it would have been perfectly evident of what happened on this night, that she was not consenting and the accused would have known that. So in relation to consent I will just say this at this stage, that also at the time had certain definitions under the New South Wales Crimes Act. I will say this at this stage, a person who consents to sexual intercourse with another under the mistaken belief as to the identity of the other person is to be taken not to consent to sexual intercourse. As I said, she believed that what was going on was her boyfriend. And also just in relation to consent, a person who does not offer actual physical resistance to sexual intercourse is not by reason only of that fact to be regarded as consenting to sexual intercourse. As you have heard from what I said, and I expect to hear from [the complainant], she will tell you exactly who she believed it was and what happened. Despite even that, she was still saying no, and he was saying yes and he still went through with it." (emphasis added) 43 Perhaps this could have been better expressed. It sufficiently indicated a Crown case of absence of consent because the complainant consented under the mistaken belief that the other person was Robert, but also a case that in fact she did not consent because she was saying no. It clearly enough foreshadowed a Crown case which included that the appellant was reckless as to lack of consent. Counsel for the appellant did not voice any complaint about the opening. 44 Counsel for the appellant also opened. After saying that there was no issue about the sexual intercourse because the appellant agreed that it took place, he relevantly said - "What is in issue are the two elements that the Crown just referred to you [sic] - the element of consent, [the complainant's] consent, as well Mr Bochkov knowing that [the complainant] did not consent. And the defence case is this. The Crown has to prove beyond reasonable doubt that [the complainant] did not consent to sexual intercourse, and the defence case is that she did consent to sexual intercourse, and her consent was apparent from the actions that took place during the time of the sexual intercourse. The Crown has raised this issue of mistake, and the defence case is that [the complainant] did know who she was having sexual intercourse with. There was no mistaken belief on her behalf as to whom she was having sexual intercourse with, and that's the second element of these offences. The third element, which is also in issue, is whether the Crown can prove beyond reasonable doubt that Vladimir Bochkov did not know that [the complainant] was consenting, and the defence case is by the actions that [the complainant] took part in it was clear to Vladimir Bochkov that she was consenting to the sexual intercourse. The defence case in this matter is that [the complainant] consented to sexual intercourse. After it had happened she regretted what took place and that is where the complaint came from. So that gives you some outline of what the issues are in this case." 45 On the defence case, then, it was contended that the complainant was not under a mistaken belief and that she consented, and that her conduct was such as to indicate to the appellant that she in fact consented. As to the appellant's knowledge that the complainant did not consent, the defence opening was apt to take issue with all of the three bases of knowledge that she did not in fact consent, recklessness as to lack of consent, and knowledge that she consented under a mistaken belief. 46 Consistently with the defence opening, it was put to the complainant in cross-examination that at the time she understood that the only person who could have been present was the appellant, with which she disagreed. She disagreed also that she assisted the person by the movements of her body. It was put that she knew that it was the appellant, again meeting disagreement. 47 The cross-examination of the appellant included putting that he wanted to have sex with the complainant, and that he was pretending to be Robert and wanted her to believe that he was Robert. It was put that he did not ask the complainant if she wanted to have sex, and he replied that he "never asked her about anything" and that "it was clear from the very beginning. If a girl does not offer any resistance as I was caressing her and cuddling her, it is all clear". The appellant agreed that at no time did he "say it was you". This cross-examination was material to the appellant's knowledge that the complainant was under the mistaken belief that he was Robert, but also to recklessness as to lack of consent. 48 After the evidence concluded the trial judge held a discussion with the legal representatives. The effect of the discussion was as follows. His Honour obtained agreement that s 61R(2) of the Crimes Act, which by that time had been repealed, was in effect on the date of the offences charged against the appellant. Referring to a direction in the Bench Book prepared by the Judicial Commission, the direction concerning s 61R(2)(b) knowledge, he elicited that the Trial Advocate would be putting to the jury that there were "two scenarios". One was consent under a mistaken belief (s 61R(2)(a)), as to which the Trial Advocate said he would be putting to the jury that a person who knew that consent was under a mistaken belief was taken to know that there was not consent (s 61R(2)(b)). The second was that, if the jury was not satisfied that the complainant was under a mistaken belief, the jury could still convict on the basis of evidence on which they could find that she did not consent and the appellant must have known that she did not consent. Counsel for the appellant agreed that there were the two scenarios. 49 As the transcript reads the discussion was rather elliptical, and so I have described its effect. In relation to the second scenario and knowledge that the complainant did not consent, it was in terms that the appellant "must have known", not that he was reckless as to whether the complainant was consenting or not. The trial judge did, however, refer in relation to the second scenario to "the usual directions in relation to sexual intercourse", which could include knowledge through recklessness. 50 The judge asked that "the matters of law" be "run past" him before they were put to the jury. There was a short adjournment. Upon resumption, and it seems so that matters of law could be run past him, the trial judge asked the Trial Advocate what he was going to say. 51 The effect of the explanation, which included adoption of a number of contributions from his Honour, was that the Trial Advocate would submit to the jury that the appellant could be found guilty in two separate ways. The first was that the complainant was acting under a mistaken belief as to the identity of the other person, believing it was Robert, and that that was taken to be absence of consent, and that a person knowing that consent was under a mistaken belief was taken to know that there was no consent. The other was - "HIS HONOUR: … there is another scenario and that is the words and actions of the complainant in relation to each of the three counts. And as to knowledge, his knowledge which flows from the words and actions of the … TRIAL ADVOCATE: I'll say directly in the first two counts she said 'no', and the last count he would have known because she said no in relation to the first two counts". 52 Recklessness as a means of proof of knowledge of absence of consent was not specifically mentioned, and "would have known" in the Trial Advocate's response suggests actual knowledge. However, this also was elliptical. 53 Counsel for the appellant said that he had no objection to "that approach", provided that it was for the Crown to prove beyond reasonable doubt that the complainant was mistaken as to identity and it was not for the appellant "to identify himself in relation to s 61R in relation to mistaken identity". 54 In his address to the jury the Trial Advocate said, in relation to absence of consent and knowledge of absence of consent - "In relation to the issue of consent, the Crown also has to prove, apart from the fact that the accused had sexual intercourse with [the complainant], it was without the consent of [the complainant]. The Crown relies on two ways the Crown says you can find the accused guilty. The first one is that the consent she gave, and I will just take you to something his Honour will raise with you later, a person who has sexual intercourse with another person without the consent of the other person and was reckless as to whether the other person consents to the sexual intercourse is taken to know that the other person does not consent to the sexual intercourse . A person who consents to have sexual intercourse with another person under a mistaken belief as to the identity of the other person is to be taken to not to consent to the sexual intercourse. So in relation to that, if you accept that on this occasion [the complainant] believed it was Robert and went along with it under the mistaken belief that it was him and she in fact did give consent that is taken not to be consent because she believed it was Robert. And a person who knows that another consents to sexual intercourse under a mistaken belief is to be taken to know that the other person does not consent to the sexual intercourse. So when I take you to how the Crown says that was proved, which I will do shortly, in relation to what [the complainant] says you will accept beyond a reasonable doubt that the accused did know that she was not consenting. So that's the first way the Crown says that you can find the accused guilty. The second one is relying once again on the first element, sexual intercourse, no issue there the Crown says, without the consent of [the complainant]. The Crown says if you rely on what [the complainant] says - and I will take you to this in more detail, but she said no on more than one occasion, she said no after he put his finger in her vagina. She said no after he put his penis into her vagina and a t that stage she ways he said, 'yes, yes, yes', when she said 'no, no, no', so that, the Crown says, is without the consent of [the complainant], and the accused would have known that because she said that to him. She said she said it in a loud voice. He said he didn't hear it. The next element the Crown has to prove the accused either knew or was reckless to lack of consent . Once again the Crown says, relying on count 1 and 2, she said no. Count 3, because she had already said no, then the accused licked her vagina. So he would have known that she wasn't consenting to count 3 on the indictment." (emphasis added) 55 In the first of these paragraphs the Trial Advocate used the words of s 61R(1) in the third sentence, with a minor change. He gave the effect of s 61R(2)(b), largely using its words, in the fourth sentence. As will be seen, it was later said that he was reading from s s 61R. It is rather odd that, in the part of the address apparently intended to put to the jury absence of consent under the first scenario, there was reference to knowledge of the accused through recklessness as to consent, but recklessness was plainly flagged. 56 Recklessness was again referred to in the fourth paragraph, appropriately in relation to the appellant's knowledge of absence of consent. It was not clearly related to the second scenario, but when taken together with the prior reference to recklessness the Trial Advocate was maintaining a case of recklessness in the face of the complainant saying no, as well as actual knowledge through the complainant saying no. 57 Later in his address the Trial Advocate said - "Just getting back to whether the accused would have known she wasn't consenting in relation to count 2, as I said in relation to count 1 she had already said no. She was facing away from him, she said she said no. Count 2, she said no in a loud voice. The accused, she said, she recognised it was a Russian voice because it was fairly low saying, "Yes, yes, yes", and [the complainant] said, "No, no, no", and the accused, as we know, did put his fingers into her vagina. We know then from [the complainant] that shortly after that she dozed off and then she felt someone licking her vagina and once again there is no dispute that the accused admits he did do that. the Crown says bearing in mind what she said earlier the accused would have known she wasn't consenting because she had said no in relation to count 2, no in relation to count 1." 58 Counsel for the appellant took no objection to the Trial Advocate's address. 59 In his own address to the jury, counsel for the appellant described the defence case as - " … that [the complainant] knew who she was having sexual intercourse with - that was with Vladimir Bochkov. There was no mistake by [the complainant] as to who she was having sexual intercourse with, and there could have been no mistake in relation to who she was having sexual intercourse with. [The complainant] consented to the sexual intercourse, and she indicated her consent by her actions at the time of the sexual intercourse, and it was after Robert Seleznev arrived that [the complainant] changed her mind and then took a number of further steps." 60 Counsel identified as the elements to be proved by the Crown, beyond reasonable doubt, that the sexual intercourse took place without the consent of the complainant and that the appellant knew that the complainant did not consent. As to absence of consent, counsel said that the Crown relied on two alternative means to prove lack of consent. The first was that the complainant must have been under a mistaken belief as to the identity of the other person, thinking it was Robert whereas it was the appellant. The second was that her actions indicated that there was no consent. He addressed on the facts as to each of these, to the effect that they had not been made out. He turned to whether the appellant knew that the complainant was not consenting. He addressed on the facts, to the effect of inviting the jury to find that the complainant did not say no or that she did not wish to have intercourse and that her actions were actions which indicated to the appellant that she wished the sexual contact to continue. He submitted to the jury that the Crown had not proved beyond reasonable doubt that the appellant knew that the complainant was not consenting. He further addressed on the facts, at some length, and invited the jury to "have real concern about the evidence of" the complainant. 61 At a break during his address counsel for the appellant provided to the trial judge directions he wished to be given, to all but one of which the Trial Advocate agreed. The materials before us did not disclose what they were. It was not suggested that they were material to the ground of appeal. 62 After the addresses concluded his Honour told the legal representatives some of the directions he proposed to give, it appears in large part reading from a written draft. They included the directions in fact given to which I later refer. Neither the Trial Advocate not counsel for the appellant sought to raise anything. 63 The summing-up was quite lengthy; as I have indicated, it relevantly followed the foreshadowed directions. 64 As to absence of consent, the trial judge said - "The Crown in respect of each count relies on two alternative positions regarding consent. I will now deal with the first position of the Crown. The first is that you find beyond reasonable doubt, one, that the complainant consented to the sexual intercourse with the accused; two, under the mistaken belief as to the identity of the accused, that is, she believed the accused to be Robert Seleznev. In respect of each the Crown asks you to draw the inference - and I refer you back to my direction about inference - of mistaken identity of Robert Seleznev on the following evidence, one, that Robert Seleznev was the complainant's boyfriend with whom she had sex that night. 2, the evidence that the complainant fell asleep in her bed and when she fell asleep she was next to Robert Seleznev who was watching television and that when Robert Seleznev left the bed the sexual activity by the accused began. The accused on the other hand submits that the complainant did not consent to the sexual intercourse with him under the mistaken belief as to his identity. In this regard the accused submits that the complainant consented to the sexual activity. Further, the accused first says that you cannot draw the inference that the Crown asks you to draw from the evidence, and further, the accused relies on the evidence as to the difference as to the size, built, accent and facial [sic] between himself and Robert Seleznev. The accused submits that the complainant did not have a mistaken belief. I direct you that if you make the finding in respect of any count that the complainant consented to sexual intercourse with the accused under the mistaken belief as to the identity of the accused, that is, that she believed him to be Robert Seleznev, that in respect of that count, in law, the complainant is taken not to have consented to the sexual intercourse. The second and alternative position of the Crown, regarding the complainant not consenting to the sexual intercourse is this; in respect of count 1, the Crown asks you to infer from the following evidence that the complainant did not consent. One that the complainant when she felt a finger in her vagina pushed the finger aside and said "No, I don't feel like this". The activity continued and the complainant froze. In respect of count 2, the Crown asks you to draw from the following evidence that the complainant did not consent, that the complainant when she felt the person's penis in the opening of her vagina, said "No", about five or six times, and then she froze. In respect of count three the Crown asks you to draw the inference from the following evidence that the complainant did not consent, one, that the complainant went into shock when she felt a person put his tongue in her vagina, and then after what felt like five minutes she tried to kick that person off her. The accused denies in respect of the first count that the complainant pushed his finger away. The accused denies as to the second count that the complainant said "no". The accused denies in respect of the third count that the complainant tried to kick him off her. Now the Crown must prove beyond reasonable doubt in respect of each count that the complainant did not consent. If the Crown has failed to do so in respect of any count, then the accused is to be found not guilty of the charge contained in that count." 65 The trial judge then turned to "the third element which is that the accused knew that the complainant was not consenting". His Honour said - "Now the Crown in respect of each count relies on two alternative positions regarding the accused's knowledge. The first position of the Crown applies to any count in which you have found, beyond reasonable doubt, that the complainant did not consent to the sexual intercourse because of a mistaken belief that she was having sexual intercourse with Robert Seleznev. Here the Crown relies on the law that if the accused knew that the complainant consented to the sexual intercourse under a mistaken belief as to the identity of the accused, then the accused is taken in law to know that the complainant did not consent to the sexual intercourse. If that be the case, then the accused would be found guilty of the offence. In respect of this element, the Crown asks you to draw the inference, and I remind you of the direction I gave you regarding inferences, that the accused knew the complainant consented to sexual intercourse because of her mistaken belief as to his identity from the following evidence: 1. that the accused saw the complainant and Robert Seleznev together as a couple during the evening of 3 and 4 November 2007. 2. that the accused saw the complainant lay on the bed in the apartment next to Robert Seleznev and saw Robert Seleznev hug the complainant. 3. the complainant was asleep and remained asleep when Robert Seleznev left the apartment in the early hours of 4 November 2007. The accused on the other hand submits that he did not know that the complainant had sexual intercourse with him because of a mistaken belief that it was Robert Seleznev having sexual intercourse with her. In this regard the accused firstly says that you cannot draw the inferences the Crown asks you to draw from the evidence, and secondly, the accused relies on the evidence of the differences as to size, build, accent and facial hair between himself and Robert Seleznev, and submits that the complainant knew she was having sexual intercourse with him, and not Robert Seleznev. Further, the accused submits that Robert Seleznev was not the boyfriend of the complainant when he had sex with her. The second position of the Crown applies to any count in which you find that the complainant did not consent to sexual intercourse, having regard to her words and actions expressed to the accused. The Crown must prove the accused knew that the complainant did not consent. The test is a subjective test and not an objective test. You might ask yourself how, in the absence of an admission by the accused, the Crown can prove that the accused was aware that the complainant did not consent. I remind you of my directions regarding inferences, the Crown asks you to infer from other facts, which it sets out to prove that the accused must have known and that he did know that the complainant did not consent. In respect of count 1, the Crown relies on the following evidence for you to draw the inference that the accused knew that the complainant did not consent; one, evidence that the complainant pushed the finger which was inside her vagina aside and said "No I don't feel like this". The accused denies that the complainant said these words. In respect of count 2, the Crown relies on the following evidence for you to draw the inference that the accused knew tht the complainant did not consent. The evidence that when the complainant felt the person's penis at the opening of her vagina, the complainant said to the person five or six times, "No". the accused denies that the complainant said those words. In respect of count 3, the Crown relies on the following evidence for you to draw the inference that the accused knew that the complainant did not consent. The evidence that when the complainant felt a person putting his tongue in her vagina, she froze, and later tried to kick him off her. Further, in respect of this count, the Crown relies on the complainant's earlier words uttered, when digital and penile penetration occurred. The accused denies that the complainant tried to kick him off her. Further, the accused denies that the complainant used the words she said she used at the time of the digital and penile penetration of her. Now in a situation where the complainant does not in fact consent the accused's state of mind at the time of the act of intercourse might be, yes, he knew that the complainant was not consenting, and that is a guilty state of mind. If the Crown has satisfied you beyond a reasonable doubt that this was the accused's state of mind at the time of the acts of intercourse in respect of the counts then the third element of the charge has been made out. On the other hand, the accused's state of mind might be that he honestly though wrongly, believed that the complainant was consenting to the intercourse, this is not a guilty state of mind. It is for the Crown to prove that at the time of intercourse the accused did not honestly believe that the complainant was consenting then you would have to say the third element is not made out and return a verdict of not guilty of that particular charge." 66 The summing-up raised for consideration in relation to the second scenario "that the accused must have known and that he did know that the complainant did not consent". There was no reference to recklessness. However, it will be noted that in the last of these paragraphs the trial judge gave the usual direction that if the appellant honestly but wrongly believed that she consented, the element of knowledge that she did not consent was not made out. I will refer to this later in these reasons. 67 The trial judge summed up at some length in relation to the facts, and summarised the submissions of the legal representatives. In doing so he described the Crown case as that the appellant "knew the complainant was not consenting 1. because he knew the complainant was having sexual intercourse with him because of the mistaken belief and 2. that he knew that she was not consenting by virtue of her words and actions". In summarising the submissions of counsel for the appellant he attributed to counsel that the complainant knew she was having sexual intercourse with the appellant because of her actions but changed her mind when Robert arrived, and as to mistaken identity that for reasons counsel gave the complainant would have known that it was not Robert having sexual intercourse with her. In that summary he also attributed to counsel that "as to the Crown's alternative position, that the complainant indicated her lack of consent to the accused", the complainant's actions indicated that she wished to have sexual intercourse and the appellant's evidence that he did not hear the word "no" should be accepted. 68 When asked, at the conclusion of the summing-up, neither the Trial Advocate nor counsel for the appellant raised any matters. 69 The jury retired. Thereafter a note was received from the jury in the terms - "1. Please can we have the transcript of your summary with particular focus on each of the elements the Crown needs to prove.

The Crown mentioned 'Reckless lack of consent". Can you please clarify if this is law and if so clarify in more detail.

Can we please have these responses in written format." 70 There was discussion between the trial judge and the legal representatives. Only the discussion concerning "reckless lack of consent" need be described. 71 The trial judge observed that he did not hear the Trial Advocate "say those words". The Trial Advocate said that he had taken the jury to s 61R and read it out in his address. This was not entirely correct. I have set out above the relevant parts of the address, and in the sentence I have emphasised recklessness as to consent was relied on using the words of s 61R(1). 72 The Trial Advocate said that he should have asked the judge to give a direction on recklessness, but had not done so because the Bench Book said that such a direction is generally not required where the accused maintains that at all times the complainant, to his or her knowledge, consented. Attention was then directed to the proviso in the Bench Book that a direction on recklessness may nevertheless be appropriate if the circumstances of the case are such that, despite rejecting the accused's version, a question of recklessness is still open to be considered on the Crown case. The Trial Advocate submitted that the direction should be given because - "In relation to this case in my submission your Honour should give the direction because in this case all the accused in evidence said as to why he believed she was consenting was because she 'moved slightly' or 'moved a bit'. And he didn't give any other explanation apart from the fact she moved throughout - he said what she doing to [sic] - she moved at various times. So in my submission it is a direction that your Honour should give in this particular case." 73 Counsel for the appellant submitted to the contrary - "Your Honour I respectfully submit that this is not an appropriate matter for a direction on recklessness. It was my understanding that recklessness was not part of the Crown case. There was some mention to it but the facts of this matter really don't bear upon recklessness. There doesn't appear to be a matter relying on recklessness your Honour there was a version given by the complainant and a version given by Mr Bochkov. And as your Honour has noted from the Bench Book a direction on recklessness is generally not required where the accused maintains at all times the complainant to his knowledge consented, and that is the accused's case." 74 The trial judge said that he "didn't focus on [the Trial Advocate's] reading of s 61R", and that if he had done so he might have summed up quite differently or "may have asked you not to say it". After referring to R v Kitchener (1993) 29 NSWLR 696, he said that "having regard to the fact that the Crown raised s 61R I should give the jury a direction in relation to recklessness". 75 The trial judge explained to the legal representatives what he proposed to say. Both were content with it. The jury returned to court. 76 The following directions were given - "The concept of recklessness is relevant to the third element of each count. That is that the Crown must prove beyond a reasonable doubt, that the accused knew the complainant was not consenting. So I repeat the concept of recklessness is only relevant to the third element, which the Crown must prove, and that is they must prove beyond a reasonable doubt that the accused knew that the complainant was not consenting to the sexual intercourse. The Crown referred to recklessness in his addresses to you. The concept of recklessness in this case only applies to the second position of the Crown, where in any count you find that the complainant did not consent to sexual intercourse, having regard to her words and actions. [The] concept of recklessness does not apply to the Crown's first position. So if you are satisfied beyond reasonable doubt that the accused knew that the complainant consented to the sexual intercourse under a mistaken belief as to the identity of the accused, because in those circumstances the law is that the accused is taken to know that the complainant did not consent to the sexual intercourse . So you only consider the concept of reckless if the Crown has not satisfied you of its first position, that the accused knew that the complainant consented to the sexual intercourse, under a mistaken belief as to the identity of the accused because in those circumstances, the law is that the accused has taken, no [sic: is taken to know] the complainant did not consent. So that means in any count where you find that the complainant did not consent to sexual intercourse, having regards to her words and actions, then and only then does the concept of recklessness arise and I am going to give you a direction as to how you deal with that. Between the two positions on the one hand, the knowledge of the accused that the complainant did not consent and on the other hand a mistaken belief that the complainant did consent. There lies a third possibility . That is where the accused is reckless, something I will explain to you in a moment, as to whether the complainant is consenting or not. If the Crown has in your opinion established beyond a reasonable doubt, that the accused had sexual intercourse with the complainant, without her consent and the accused was reckless as to whether the complainant consented to the sexual intercourse, then it is the law that the accused would be taken to know, that the complainant did not consent to sexual intercourse. I will repeat that. If the Crown has in your opinion established beyond a reasonable doubt, that the accused had sexual intercourse with the complainant, without her consent and the accused was reckless as to whether the complainant consented to the sexual intercourse, then it is the law that the accused would be taken to know, that the complainant did not consent to sexual intercourse. In order to establish that the accused was acting recklessly the Crown must prove beyond reasonable doubt, either one, that the accused state of mind was such that he simply failed to consider whether or not the complainant was consenting at all and just went ahead with the act of sexual intercourse even though the risk that the complainant was not consenting would have been obvious to someone, with the accused's mental capacity if they had turned her or her mind to it. So it is the subjective test. Or two, the accused's state of mind was such that the realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not. Again, this is wholly a subjective test. Content with that direction Mr Crown? TRIAL ADVOCATE: Yes your Honour. HIS HONOUR: Content with that direction Mr Fernandez? FERNANDEZ: Yes I am your Honour. HIS HONOUR: So I am going to stress something to you. That the concept of recklessness as I have described it to you, does not apply to the Crown's first position. So if you are satisfied beyond a reasonable doubt, the accused knew that the complainant consented to the sexual intercourse under a mistaken belief as to the identity of the accused, of course in those circumstances, the law is that the accused is taken to know that the complainant did not consent to the sexual intercourse . The concept of recklessness only applies to the Crown's second position and that is where [on] any count you find that the complainant did not consent to sexual intercourse having regard to her words and actions. Does that make sense to you?" (bold and underlining added) 77 His Honour then repeated his directions in relation to the elements of the offence, including the Crown's alternative positions regarding consent and alternative positions regarding the appellant's knowledge. In that connection he said - "I now turn to the third element and that is that the Crown must prove beyond a reasonable doubt, that the accused knew that the complainant was not consenting. The Crown in respect of each count relies on two alternative positions regarding the accused's knowledge. The first position of the Crown applies to any count in which you have found beyond a reasonable doubt, that the complainant did not consent to the sexual intercourse because of a mistaken belief she was having sexual intercourse with Robert Seleznev. Such a position, the Crown relies on the law, that is the accused knew that the complainant consented to the sexual intercourse under a mistaken belief as to the identity of the accused, then the accused is taken to know that the complainant did not consent to the sexual intercourse. Now in respect of the Crown's first position regarding this element, that is, that the accused knew that the complainant did not consent to the sexual intercourse. The Crown asks you to draw the inference that the accused knew that the complainant consented to the sexual intercourse because of her mistaken belief as to his identity from the evidence. … " 78 After dealing with the appellant knowing that the complainant in fact did not consent, he said - "I am now going to interpose the direction regarding recklessness. The concept of recklessness only applies to the second position of the Crown, where in any count you find that the complainant did not consent to sexual intercourse, having regard to her words and actions. The concept of recklessness does not apply to the Crown's first position, so if you are satisfied beyond a reasonable doubt that the accused knew the complainant consented to the sexual intercourse under a mistaken belief as to the identity of the accused, of course in those circumstances the law is that the accused is then taken to know that the complainant did not consent to the sexual intercourse, beyond reasonable doubt, having regard to her words and actions, then the following direction applies regarding recklessness. I repeat the direction regarding recklessness only applies as to the element where the Crown must satisfy you that the accused knew that the complainant did not consent to the sexual intercourse. Between the two situations I have explained to you, being on the one hand the knowledge of the accused that the complainant did not consent; on the other hand an honest though mistaken belief that the complainant did consent, there lies a third possibility, and that is where the accused is reckless , something I will explain to you in a moment as to whether the complainant consents or not. If the Crown has, in your opinion, established beyond reasonable doubt that the accused had sexual intercourse with the complainant without her consent, as evidenced by her words and actions, and the accused was reckless as to whether the complainant consented as to the sexual intercourse, then it is the law that the accused be taken to know that the complainant did not consent to the sexual intercourse. To establish the accused acting recklessly, the Crown must prove beyond a reasonable doubt either that the accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk of the complainant not consenting, it would have been obvious with the accused's mental capacity had he turned his mind to it, and I do stress that the test is wholly subjective, that is, the accused's state of mind; or (2) the accused's state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not. Again, this is wholly a subjective test." (underlining added) 79 I have emphasised the particular passages of which the appellant complained. 80 The trial judge asked the legal representatives whether they were content with the directions. The Trial Advocate said that he was. From the absence of any request for correction, counsel for the appellant was also content. 81 In due course the jury returned with verdicts of guilty on all three counts. 82 I now go to the appellant's submissions under the paragraphs of the ground of appeal presently under consideration. The overall submission was that there was a miscarriage of justice because of an unnecessarily complicated and confused trial and positive misdirections caused by a late shift by the Crown seeking to rely on recklessness. There were more particular submissions. 83 First, it was submitted that there was not a proper basis for a Crown case on the first scenario, and that the appellant was disadvantaged by the confusion that this brought into the trial. It was said that the complainant did not give evidence that she consented, but rather on her evidence she did not consent. She pushed the person away and said she did not feel like it, she said no again, she said no loudly and sternly, and eventually tried to kick the person off. A Crown case on the first scenario, it was submitted, was not open. 84 I do not accept the submission. Counsel for the appellant at trial can not have perceived that a Crown case on the first scenario was not open. He recognised it and responded to it, including by the cross-examination of the complainant putting that at the time she understood the only person who could have been present was the appellant - that is, that she was not mistaken as to the person's identity. He was right to do so. While the complainant gave the evidence of resisting and saying no, she thought that the person was Robert. She had previously had consensual intercourse with Robert. While the periods were imprecise, the acts of the person went on over some time without decisive rejection by the complainant. In the circumstances, a jury could have found that she was consenting to sex with Robert despite her protestations, in which case mistaken belief was a prominent issue. In my opinion, it was open to the Crown to rely on the first scenario. 85 Then it was submitted that, if the alternative scenarios were to be relied on, there should have been alternatively framed counts in the indictment. It was said that the appellant was disadvantaged because, in the absence of separate counts for sexual intercourse without consent and sexual intercourse with consent under a mistaken belief, the minds of the members of the jury might not meet on an element of the offence. 86 This also can not have been seen as a difficulty by counsel for the appellant at trial, who took no objection to the framing of the indictment. The appellant was unable to provide authority to support the submission. I do not accept it. The relevant element in the offence expressed in s 61I is that the sexual intercourse is had without the consent of the complainant. Absence of consent may be proved by proof that the complainant in fact did not consent, or by reason of s 61R(2)(a) by proof that the complainant consented under a mistaken belief as to the identity of the other person. These were means of proof, not elements of the offence, and the indictment was validly framed. Appropriately, the alternative scenarios were then matters of particulars. 87 Authority is in fact against the submission. The members of the jury did not have to arrive at absence of consent by the same route, see for example R v Isaacs (1997) 47 NSWLR 374 at 377-80 in which the Court (Gleeson CJ, Mason P, Hunt CJ at CL and Simpson and Hidden JJ) accepted that members of a jury could arrive at a verdict of manslaughter, which could be on the ground of provocation, diminished responsibility or manslaughter by unlawful and dangerous act, on different grounds. See also R v Klamo [2008] VSCA 75; (2008) 18 VR 644, where Maxwell P at [75] took up from R v Walsh (2002) 131 A Crim R 299 the "two distinct types of case", one where there were alternative legal bases of guilt depending substantially on the same facts and the other where different discrete acts could prove an essential ingredient of the crime charged; unanimity on the basis of guilt is not required in the first case, into which the present case falls. Indeed, it may be that an indictment formed as suggested would give rise to problems of its own, such as duplicity or inconsistency of verdicts; it is not necessary to decide whether that is so. 88 The appellant then submitted that the Crown altered its position to rely on recklessness after the summing-up had been completed. In the written submissions it was said that the Crown "had not sought from beginning to last during the trial to advance a platform of recklessness as a basis for criminal responsibility"; that it was evident that recklessness was not part of the Crown case from the reliance on the alternative scenarios which "did not include recklessness"; that there was no cross-examination of the appellant by the Crown Prosecutor to raise recklessness as an issue; that "the problem arose because of the irrelevant reading of s 61R(1) to the jury during the Crown Prosecutor's address"; and that the late reliance on recklessness led to confusing and erroneous further directions to the jury. In oral submissions it was accepted that recklessness was "read out briefly during the opening and it was read out consistent with the statute in the closing", but it was said that recklessness had not been an issue because "it was not a case of recklessness but of two specific bases of alternative liability". 89 I will come to the directions to the jury, but the submission is otherwise ill-founded. From the particulars, reliance on the second scenario was known. That the appellant knew that the complainant in fact did not consent would be proved if the appellant was reckless as to whether she consented. The particulars did not exclude reliance on recklessness. The Trial Advocate's opening included reliance on recklessness as to lack of consent. On the evidence there was a basis for recklessness, see [94] later in these reasons. The Trial Advocate's reliance on recklessness in his address to the jury, although perhaps not well expressed, was maintenance of an aspect of the Crown case which had always been present. 90 In particular, it is not correct that reliance on the alternative scenarios excluded recklessness. The alternative scenarios went to absence of consent, not to the appellant's knowledge of absence of consent. Consistently with them, knowledge of absence of consent in the second scenario could be established through recklessness. The submissions erroneously failed to distinguish between the two elements of absence of consent and knowledge of absence of consent. 91 The trial judge did not take up recklessness as to consent in the directions proposed prior to the summing-up, and the Trial Advocate did not remind his Honour of that aspect of the Crown case. The jury was attentive, however, and asked for clarification. If it was appropriate to give a direction as to recklessness, and a correct direction was given, I do not think there was an irregularity bringing or contributing to a miscarriage of justice. Giving a direction as to recklessness then met an issue before the jury, to which the jury was alive, and no confusion or prejudice to the appellant was caused because the direction was supplementary to the previous summing-up. 92 Other than by the submission that the Crown case had not "advanc[ed] a platform of recklessness as a basis for criminal responsibility", which was not correct, the appellant did not clearly argue that recklessness was not open to be considered on the Crown case. In my opinion, it was open to be considered. 93 The defence case was that the complainant in fact consented, and to his knowledge; within it could be that he honestly but wrongly believed that the complainant was consenting. The jury was directed accordingly. Contrary to the statement in the Bench Book, R v Kitchener at 700 does not say that in those circumstances a direction on recklessness is generally not required. The proviso correctly states that a direction may be appropriate. 94 Recklessness may be found in failure to advert at all to consent or non-consent: R v Henning (CCA, 11 May 1990, unreported); R v Tolmie (1995) 37 NSWLR 660. It includes indifference as to whether or not there is consent and awareness of the possibility of absence of consent and proceeding anyway: Banditt v The Queen at [16], [38]. The complainant was asleep, and the appellant took the place Robert had formerly occupied. He did not say anything or ask her anything. He explained that "[I]f a girl does not offer any resistance as I was caressing her and cuddling her, it is all clear". On the Crown case the complainant said no. If this did not in the circumstances provide knowledge that she did not consent, it was a basis for recklessness: as was said by Carruthers J in R v Kitchener at 703, with the agreement of Kirby P and Smart J, "at times the line between knowledge and recklessness in that regard may be a fine one indeed". In R v Henning the Court (Gleeson CJ and Campbell and Mathews JJ) said that "in the normal course of events recklessness will become a relevant issue only when there is a possibility of ambiguity in the signals of consent or non-consent emanating from the complainant or arising from the circumstances", contrasting that with where the signals were "unambiguous and all one way". The circumstances in the present case were not those of unambiguous non-consent. 95 A finding that the appellant knew that the complainant did not consent could be made on the basis of positive knowledge that she did not consent, or on the basis of recklessness as to whether or not she consented. It was appropriate to give a direction as to recklessness. Even if such a direction had strictly been unnecessary, there would be no miscarriage of justice in giving a correct direction: R v Kitchener at 697 per Kirby P, 703 per Carruthers J; R v Henning. 96 That brings me to the directions. 97 I have put in bold three passages in the directions which the appellant submitted were in error. It was submitted - " … that the law is not that the accused is taken to know that the complainant did not consent because she had a mistaken belief as to the identity of the accused. Rather, Section 61R(2) simply provides that the consent given is vitiated". 98 According to the submission, s 61I required the element of knowledge to be established, and vitiation of actual consent did not establish the element of knowledge. At another point it was submitted that "[i]t is not the position that the effect of Section 61R(2)(a)(i) has the effect [sic] that the law is that the Appellant has to be taken to know the complainant did not consent". 99 The trial judge was dealing with the first scenario, that the complainant consented under a mistaken belief as to the identity of the appellant. It may be noted that he had given the same direction in the initial summing-up, see the first paragraph in the second extract from the summing up set out earlier in these reasons. Section 61R(2) is relevant to the first scenario, but the submission is founded on an incomplete regard to it. The words "without limiting …" in the chapeau to s 61R(2) refer to vitiation, and s 61R(2)(a) could be said to provide for vitiation of actual consent. But s 61R(2)(b) then deals with the separate matter of knowledge. Again the appellant's submissions failed to distinguish between the two elements of the offence. The trial judge correctly directed the jury in accordance with s 61R(2)(b). 100 I have underlined two passages in the directions. The appellant submitted that the second of them was in error; although the appellant did not take issue with the first passage, it was a repetition of the first. The submission was not entirely clear, and was put in different ways. It was submitted that the effect of the passage was to put recklessness as an alternative to the defence of honest and reasonable mistake as to consent; that "the position of the Defence as to honest and reasonable mistake has become substituted for the first scenario relied upon by the Crown"; that this "invited the jury to find recklessness as an alternative to the defence raised"; and that "the concept of recklessness was presented as a mid-way position between one scenario relied upon by the Crown and the Defence raised of honest mistake, a compromise". 101 The direction in this respect followed the direction suggested in the Bench Book. It could nonetheless be erroneous. But it was not. 102 The basis for the submission appears to be that the appellant was raising a defence of honest and reasonable mistake. That is not correct. 103 At common law honest and reasonable mistake of fact "will be a ground of exculpation in cases in which actual knowledge is not required as an element of an offence": He Kaw Teh v The Queen (1985) 157 CLR 523 per Gibbs CJ. That is not this case. The relevant element of the offence was that the appellant knew that the complainant did not consent. 104 The trial judge directed the jury that a state of mind of actual knowledge that she did not consent was a guilty state of mind and made out that element. As I have earlier noted, he also directed the jury that a state of mind of honest though wrong belief that the complainant consented was not a guilty state of mind and did not make out the element. The element is subjective. Honest though wrong belief was not a defence; it meant that the Crown had not proved that the appellant knew that the complainant did not consent. And the belief did not have to be on reasonable grounds: Director of Public Prosecutions v Morgan (1976) AC 182, which also emphasised that mistake may negative an element of the offence and if so should not be spoken of as a defence. 105 So far as concerned with whether the appellant held an honest though wrong belief that the complainant consented, the submission also failed to recognise the relationship between that position and recklessness as to whether she consented. There would be knowledge of absence of consent if the appellant knew that the complainant in fact did not consent, or if he was reckless as to whether the complainant consented. Within the first of these, the jury was directed that, if the appellant held an honest though mistaken belief that she consented, knowledge of absence of consent could not be found. There was indeed another possibility, namely, that the appellant was not in a positive state of knowledge of absence of consent or belief that she was consenting, but was indifferent to whether she consented or was aware of the possibility of absence of consent and proceeded anyway: that is, was reckless as to her consent. I would prefer not to describe recklessness as lying between knowledge and an honest though mistaken belief. Rather, it is outside the issue of positive knowledge of the complainant's consent, and if it must be placed spatially, it is a parallel possibility. But that description does not in my view suggest a compromise position. 106 On the evidence it was appropriate, and the jury could be directed as to recklessness as the pathway to knowledge of absence of consent provided by s 61R(1) of the Act, as well as being directed about positive knowledge of absence of consent. The direction did not substitute honest and reasonable mistake for the first scenario, whatever that may mean. The trial judge was dealing with the second scenario, and with recklessness within that scenario, and there was no question of substitution. Nor did the direction present recklessness as a midway position inviting compromise. 107 It is necessary to consider the appellant's overall submission of an unnecessarily complicated and confused trial. Part of that submission appears to have been that the evidence did not permit the jury to find beyond reasonable doubt that the appellant knew that the complainant consented under a mistaken belief as to his identity. That is not easily brought within the ground of appeal, and should have been the subject of a separate ground, but in any event I consider that it is without substance. The course of the trial was not ideal, but in my opinion it did not approach disadvantage to the appellant giving rise to a miscarriage of justice.

The ground of appeal - para (vii) 108 The evidence of the investigating police officer included that, after the appellant was arrested - "During the drive to Waverley Police Station I was having a conversation with Constable Tindale when I heard Bochkov say 'You know it's remarkable how quick the insurance is in this country. I lost my mobile phone one day and a couple of days later they paid me the insurance money. In my home country this would take weeks, maybe months'. This comment was off topic and surprising. It was in stark contrast to the English communication abilities Bochkov was displaying upon arrest at York Street, Sydney. Constable Tindale said 'Mate appears that you can communicate quite well when you want to, is there any reason for that?' Bochkov said 'I don't understand what you're saying'." 109 This was part of a statement of the police officer read by him as evidence, with the concurrence of counsel for the appellant. The reference to a stark contrast should be explained. Earlier in the statement the police officer said that when first approached at the time of his arrest the appellant conversed in "fairly good albeit slightly broken English" and with a thick Russian accent, but that when the appellant was told that he was going to be arrested he claimed not to understand and ceased conversing in English. The statement did include some further communications with the appellant in English before and after his arrest. 110 Counsel for the appellant must have known that the evidence about the insurance payment would be read, and did not object to it. The cross-examination of the police officer on the point was brief. He agreed that the appellant "has a very limited English vocabulary" and that when in the police vehicle his English was limited, and - "Q. He never used the word 'remarkable' did he? A. He did. Q. He was telling you in very limited English about problems he was having with his mobile phone. Correct? A. He was talking about problems he had with his mobile phone insurance." 111 The appellant's submissions were not entirely clear. It did not seem to be submitted that the evidence was inadmissible, and para (vii) in the ground of appeal was not in terms of inadmissibility. However, it complained of "the conduct of the Prosecution in introducing opinion and hearsay evidence … ". 112 The evidence was not hearsay evidence. Its relevance was not that the mobile phone had been lost and the insurance money paid with remarkable speed, but that the appellant had a facility in English. That had some relevance to other evidence of the appellant's use of English, and more particularly to his understanding of the complainant saying that she did not feel like it and no and, as matters turned out, to his explanation for saying "I want a woman like you". There was not so much opinion evidence as comment, in the police officer's observation that what the appellant said was off topic and surprising and in contrast with the English communication abilities the appellant was displaying upon his arrest. The comment, however, was unremarkable, and properly open to the Trial Advocate in putting the Crown case to the jury. It can readily be seen that counsel for the appellant therefore took the forensic decision not to object. 113 The appellant's facility in English was an issue at the trial. The complainant, Robert and Igor all gave evidence of the appellant's use of English. The appellant was cross-examined to the effect that he had reasonable capacity in English and pretended after he was arrested that he could not speak English. The appellant agreed that he "did say the first phrase regarding my telephone, but the rest of it was quite different because I don't have such command of English". 114 The thrust of the appellant's submissions was that the evidence suggested that the appellant "was a person of deceit or dishonesty", which I take to be referring to the contrast with the police officer's evidence that the appellant came to claim not to understand and ceased conversing in English. It was said that there was ineffectual cross-examination and the defence case did not include independent evidence of the appellant's limited capacity in the English language, and that this contributed to the miscarriage of justice. It was said that there was "an attack upon the honesty of the Appellant in a way which was not made relevant to an issue at the trial, but reflected poorly upon the Appellant in terms of credit"; however, the submissions otherwise appeared to accept relevance. 115 In my view there was relevance, whatever the consequences for the appellant's credit. Whether or not on discretionary grounds the evidence might have been rejected does not arise. The appellant appeared to retreat from this paragraph of the ground of appeal, saying in the written submissions that it was "conceded that Rule 4 could well be invoked concerning the issue and that alone this issue would not be of great significance". It was said that "in the context of the nature of the trial received by the Appellant, the attention of the Court is drawn to this issue". In my opinion, whether independently or as a makeweight in the ground of appeal, the complaint in para (vii) should not be upheld.

The ground of appeal - para (viii) 116 The appellant submitted that, in presenting a case of the two scenarios, the Crown "was motivated by desired tactical advantage, not by inferences properly open on the evidence of the complainant", and was seeking unfair tactical advantage in having its case go to the jury notwithstanding that the complainant was not believed in her evidence that she did not consent. The unfairness was exacerbated, it was said, by the introduction of recklessness although that had not been part of the Crown case. It was submitted that there was a miscarriage of justice through "the conduct of the Crown … by seeking unfair advantage over the Defence". 117 This was a strong submission of impropriety, not lessened by a purported qualification in oral submissions that the Crown's conduct was "either design or accident". It is sufficient answer that, for the reasons I have given, in my opinion it was open to the Crown to present a case of the two scenarios and recklessness was properly part of the Crown case. It is unnecessary to explore tactical advantage as occasion for miscarriage of justice. 118 There was no unfair tactical advantage, and it is appropriate expressly to reject any suggestion of impropriety on the part of the Crown.

Evidence on appeal 119 The appellant sought to read affidavits of Lester Fernandez and Alexander Harmstorf, respectively counsel and solicitor for the appellant at the trial. Other than the letter providing particulars, which was an annexure to Mr Fernandez's affidavit, the Court rejected the affidavits with reasons to be given later. 120 The affidavits dealt with three matters. 121 First, Mr Fernandez deposed that he took every objection he saw appropriate and did not refrain from taking an objection for tactical reasons. This was not relevant to the appeal. 122 Secondly, both affidavits expressed and explained the beliefs of the deponents that recklessness was not part of the Crown case. The appellant accepted that the subjective states of mind were irrelevant. Inconsistently with that acceptance, he submitted that the affidavits in this respect went to the decisions made by the appellant's counsel and solicitor in preparing the conduct of the trial. The ground of appeal did not call for investigation of why decisions were made. This also was not relevant to the appeal. 123 The affidavit of Mr Harmstorf proffered evidence to the effect that the appellant's capacity in the English language was poor. The appellant accepted that it was not fresh evidence. He did not advance a basis for its admission other than that "[i]t was material that was available [at the trial] and wasn't called". 124 In fact, only in part was the material available at the trial. Mr Harmstorf said that in acting for the appellant he was aware that the appellant's English was very limited, and formed the view that the appellant could not understand what he said to him and frequently called his mother by telephone to translate. The remaining material was technically fresh evidence, being a post-trial TAFE record stating that the appellant "failed to complete our most elementary English language course" and a post-trial note in records of the Department of Corrective Services that the appellant "can speak very little/no English". 125 This evidence was of unhelpful generality. The occasion for evidence material to the appellant's use of English, as the evidence at the trial revealed it, was the trial itself, when it could be properly addressed. In my opinion, the significance of the material is not such that it should be admitted as further or fresh evidence.

Order 126 I propose that the appeal be dismissed. 127 BUDDIN J: I agree with Giles JA. 128 HARRISON J: I agree with Giles JA. **********

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BOCHKOV, Vladimir v Regina

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