1. A substantial miscarriage of justice has occurred due to the jury being permitted to reason that the complainant did not consent to the sexual activity by reason of her intoxication, in circumstances where, ultimately, the Crown case was not that the complainant was so affected by alcohol as to be incapable of consenting. 2. A substantial miscarriage of justice has occurred by reason of defence counsel misunderstanding the Crown case and thereby failing to adduce evidence from the applicant in relation to the complainant's consumption of alcohol and level of intoxication. 3. A combination or aggregation of defects has resulted in a substantial miscarriage of justice.

1. The applicant was 18 years old at the time of the offending. He is now 25 years old.
2. The complainant, Ms Jackson, was also then 18. She and the applicant had previously been in a boyfriend/girlfriend relationship for some months, had an occasional sexual relationship thereafter and remained on friendly terms. Ms Jackson and Mr Smith (then aged 20) knew of each other through the applicant but were not otherwise acquainted.
3. On 11 February 2017, the applicant, Mr Smith and Ms Jackson attended a gathering at a friend's house in Benalla. The group of about 10 had recently finished Year 12. They spent the afternoon consuming alcohol. The complainant drank four or five cans of vodka mixed drinks and a quarter or half of a bottle of 'Passion Pop' wine. The group travelled in a maxi taxi to Wangaratta later that night, arriving just after 11:00 pm. The applicant brought a half full cask of wine and consumed some whilst in the taxi. The complainant consumed some of the remaining Passion Pop.
4. The group headed to the Grand Central Hotel. The applicant wanted to smuggle the cask wine into the venue to avoid paying for drinks. The complainant helped him by placing the bladder between them and cuddling the applicant as they walked into the hotel. The applicant, the complainant and Mr Smith then went across the road to the Albion Hotel, where they each consumed between two and five shots of a mixed drink. The three then returned to the Grand Central Hotel.
5. The applicant did not want to get rid of the cask wine and suggested finishing it at a private location outside the hotel. The complainant told the applicant and Mr Smith that she knew of a secluded location and led them to a laneway a few hundred metres away. She said she had previously had sex with another young man there. The three took turns drinking from the bladder.
6. There were conflicting accounts provided by the complainant and the applicant at trial of the events that occurred next.

1. In her evidence in chief, the complainant said that her memory of the order of events in the laneway was patchy. She variously stated that she 'came out of a haze,' that she was not in a 'state of mind to make a consensual decision,' and that the boys had 'taken advantage' of how drunk she was.
2. The Crown did not ultimately put to the jury that the complainant had been so intoxicated that she was incapable of consenting.[4] The jury was directed that her alcohol consumption was only one of the pieces of evidence relating to the circumstances of the alleged offending and not determinative of her consent.
3. The order of events as the complainant remembered them was that first, her breasts were exposed and that the boys were touching and playing with them.[5] She told them to stop and she put her breasts back into her bra.[6] A short time after, the applicant told her he missed her and they kissed and cuddled each other. The applicant and complainant then moved to sit on a crate in the laneway. The applicant asked the complainant if she would participate in various sexual activities. The complainant described his questions and her responses as follows:

(a) The applicant asked her to have a 'threesome' with him and Mr Smith. She said no. > > (b) The applicant asked if she would have sex with the applicant while Mr Smith watched. She said no. > > (c) The applicant asked if she would have sex with Mr Smith while the applicant watched. She said no. > > (d) The applicant asked if she would suck Mr Smith's penis. She said no. > > (e) The applicant offered her $100 to suck Mr Smith's penis. She said no. She also said 'I'm not a prostitute.'

4. The complainant asked the applicant why he was asking her to do these things with Mr Smith when he had said that he missed her. The applicant's response was 'family comes first.'
5. During this conversation, Mr Smith was further away in a corner.[7]
6. At some point, the applicant put a $100 note down the complainant's bra. The complainant then recalls being in a bent over position with Mr Smith's penis in her mouth and the applicant's penis in her vagina. This sexual activity did not go for very long. Either she or the boys then moved positions so that the applicant was in front of her and Mr Smith was behind her. The applicant penetrated her mouth with his penis and Mr Smith penetrated her vagina. This also did not go for very long. She then stumbled to the ground because she was intoxicated and lost her balance.
7. The complainant then pulled her skirt down and her underwear up and stood to leave. The applicant had her phone and she asked for it back.

1. The applicant's evidence was that he and the complainant had been flirting for most of the night and kissing and cuddling in the laneway. After Mr Smith walked away to urinate, the applicant asked the complainant what she thought of Mr Smith. She said he was 'alright'. The applicant then asked if she wanted to have a threesome and she replied, 'Nah.'
2. Mr Smith returned. The applicant said that he half-jokingly asked the complainant, what if he gave her $100 to perform oral sex on Mr Smith. The complainant thought about it for a minute and asked if they would tell anyone. The applicant and Mr Smith said no. She then asked, 'Are you sure?' to which they replied, 'No, no, we wouldn't tell anyone'. At that point she said, 'Yeah, rightio. I'll do it.' The applicant then took out the $100 note and handed it to the complainant, who put it in her bra.
3. The applicant described the sexual activity as follows. He and the complainant started kissing and cuddling again. She started to rub his penis on the outside of his pants. They moved over to a crate where he sat down and took his penis out of his pants. The complainant then lifted her skirt, moved her underwear aside, she sat down on top of him, facing away from him, and began to have sex with him.
4. The applicant called out to Mr Smith to come and join them. The complainant also said 'come on' or words to that effect.
5. The complainant asked for a drink of wine. Mr Smith brought the cask over and squirted some wine into her mouth, some of which spilled. The applicant said, 'you're making a mess,' to which she responded 'well someone get it off, then'. Mr Smith began licking the wine off the complainant's neck, kissed her, then licked wine off her breasts. The complainant's breasts were out at this point and she paused the sexual activity on top of the applicant whilst drinking the wine.
6. Shortly after, she said 'this isn't going to work', referring to her position of simultaneously sitting on top of the applicant and trying to perform oral sex on Mr Smith. She then immediately stood up and bent over from the waist forward so that the applicant could continue having sex with her from behind while she performed oral sex on Mr Smith. This went on for a couple of minutes. The applicant described the complainant as stable in her demeanour, and 'able to do both things at once'.
7. The applicant then suggested they swap positions. The complainant turned herself around and began to perform oral sex on him whilst Mr Smith was having sex with her from behind. This also went on for a couple of minutes.
8. The applicant then started to feel sick from drinking too much wine and 'a bit too much shaking around'. The complainant said 'Well, don't throw up on me then.' This killed the mood, and the sexual activity stopped.
9. The applicant said that at no point during the sexual activity did the complainant indicate that she was not consenting, either by her words or actions. No force was used and she did not need encouragement to participate. He did not ever say 'family first' to her during that night. He also did not have her phone at the end of the sexual activity; he recalled that she was keeping all her belongings in her bra.

1. At the conclusion of the sexual activity the complainant told the applicant and Mr Smith that she had to make a phone call and that she would meet them back at the clubs on Murphy Street. The applicant said that she 'seemed happy, like they'd just had some fun'. The complainant's evidence was that she decided to leave separately as she was feeling uneasy about what had just happened and wanted to call a friend to talk about it.
2. The first friend the complainant telephoned did not answer. She then telephoned Paige Peters[8] and told her there had been an incident with the boys. Ms Peters said the complainant was 'very upset' and 'crying' on the phone. The complainant took a taxi to Ms Peters' house, exchanging messages with her about the incident on the way.
3. Meanwhile, the applicant and Mr Smith sat on a bench on Murphy Street to wait for the complainant. The Crown alleged that they sat and waited for the complainant for about an hour to an hour and a half.
4. Mr Smith, who knew Ms Peters, received Facebook messages from her about the complainant being upset, and asking for a 'very good apology' for 'taking advantage' of a 'very intoxicated girl'. Ms Peters said in the messages that she would take the complainant to the police and press charges if an apology was not forthcoming. The complainant was not present when Ms Peters sent those messages.
5. Whilst at Ms Peters' house, the complainant telephoned Emma Jones[9] and asked her for a ride home to Benalla. She told Ms Jones about the incident and showed her the $100 note. Ms Jones became angry upon hearing this and suggested they go to the police. The complainant said she did not want to as she was 'not in the headspace to make any more decisions'. Ms Jones suggested 'going to talk to the boys'.
6. Ms Jones drove the complainant back to Murphy Street. Whilst Ms Jones went over to speak with the applicant and Mr Smith, the complainant stood by the road crying until a friend noticed her and took her to get some water and calm her down.
7. The applicant said that a girl came storming up to them and screaming whilst he and Mr Smith were sitting on the bench, asking if he was 'Harrison Dwyer' and if they were 'the stepbrothers'. He did not know her but later knew her to be Ms Jones. She then said something like 'stay there, my friends are coming'. The applicant and Mr Smith decided they had to leave and started to walk away. At that point they heard a male voice yell 'Hey, you guys. Stop.' The applicant said they then decided to run to avoid getting caught up with a big group that was going to be as aggressive as Ms Jones.
8. Michael Hooper,[10] who was part of the applicant and complainant's Year 12 friendship group, was in the vicinity. He gave evidence that an aggressive group of people asked him where the applicant was. He had heard the applicant and Mr Smith had been involved in a rape behind the clubs. Mr Hooper telephoned the applicant and asked him where he was. The applicant didn't respond to the question. Mr Hooper told him he was a 'dead man' and advised him to get out of town as people were looking for him. The applicant gave evidence that he had known Mr Hooper since primary school and thought that he had no reason to lie about the situation.
9. Ms Jones returned to the complainant looking really angry and said she believed that the boys had left the scene. She said she was going to talk to the police. The complainant saw her approach two police officers across the road.
10. Mr Hooper then approached the complainant to ask what had happened. She said she had not wanted to have sex with either of the boys but they had taken turns having sex with her orally and vaginally and swapped. She said she had said 'no' to them.
11. A short time later, the complainant went over to where Ms Jones was and spoke to the police officers for about 5-10 minutes. She told the police officers that there had been a misunderstanding on Ms Jones' part. She and Mr Hooper then travelled with a friend to the applicant's house in Benalla to stay the night as arranged previously.
12. The applicant gave evidence that he was too scared to return home after speaking to Mr Hooper and receiving text messages indicating that people were still looking for him and Mr Smith. The pair spent the night at a friend's house.
13. The complainant contacted the applicant on Facebook Messenger the next morning, 12 February 2017. She told the applicant he should come home and, referencing the police and the people that were looking for him, that she had 'shut all that down'.
14. The applicant returned home that morning and spoke to the complainant. He made an apology of sorts. He was upset and cried about not ever being able to go back to Wangaratta and being known as the guy who raped a girl there.
15. Later that afternoon, they exchanged further Facebook messages:

[COMPLAINANT]: Do you in your mind think you like raped me or took advantage of me or do you think it was just like messing around fun kind of thing?

[APPLICANT]: No I don't think I raped you, like you said you don't want a three‑way just but how it played up seemed like you didn't mind kind of thing. Do you know what I'm trying to say?

[COMPLAINANT]: Yeah.

[APPLICANT]: Do you feel like it was?

[COMPLAINANT]: I feel like I got taken advantage of, I didn't think it was rape tho (sic).

[APPLICANT]: Okay, I'm so sorry, [Sarah].

...

[APPLICANT]: If you want to be angry be angry at me, I was the one who did everything, [Thomas] was just there going with it. I'm so sorry for what happened [Sarah].

...

[APPLICANT]: Oh okay, well I'm really sorry but honestly it seemed to me that you didn't mind that much, like I'm not trying to be mean or blame you or anything just, if I thought you'd get upset like this or anything I wouldn't have done anything, nothing would've happened.

1. On 14 February 2017, the complainant saw a doctor about getting a referral to a psychologist. She described the incident during the consultation.
2. In the following weeks, the complainant became aware of rumours within the town and her peer group about what had happened. On 9 March 2017 she text messaged the applicant '... that night I never asked to suck [Thomas'] dick, did I? I never said I wanted to, did I?' and 'You asked me to and I said no. That's right, isn't it?'. Later that day, she asked the applicant if there was a video of the incident.
3. The complainant saw a sexual assault counsellor the next day. She reported the matter to police on 23 March 2017 and made a statement some three months later.
4. On 8 July 2017, almost five months after the incident, the complainant participated in a pretext call with the applicant. When the complaint asked 'Why did you do it when I said "no"?' The applicant responded, 'Because ... it just happened kind of thing, like, you said, "No," but then, like, you're still doing it. It's not like you said, "No," and then just didn't want it at all.' When the complainant said, '... I said, "No," more than once. I didn't say, "Yes," I never said, "Yes",' the applicant responded, 'You still did it. You took the money and you did it.'
5. The applicant was contacted by police in late 2017. He gave a no comment interview.

Ground 1: Verdict is unreasonable or cannot be supported by evidence

1. The principles relating to the inquiry necessitated by s 276(1)(a) of the Criminal Procedure Act 2009 are well settled. The question for this court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.[11]
2. An appellate court must make an independent assessment of the evidence. It must also proceed upon the assumption that the jury assessed the complainant's evidence to be credible and reliable.[12] A doubt an appellate court experiences when embarking on an independent assessment will, in most cases, be a doubt which a jury ought to have experienced. However, the court must consider that the jury is entrusted with the primary responsibility of determining guilt and give full weight to the advantage it had in seeing and hearing witnesses give their evidence.[13]
3. It is only where such an advantage is capable of resolving a doubt experienced by an appellate court that the court may conclude that no miscarriage of justice occurred. If, even making full allowance for the advantages enjoyed by the jury in assessing the credibility of witnesses, the appellate court concludes that there is a significant possibility that an innocent person has been convicted because the evidence on the record is tainted, contains discrepancies, displays inadequacies or otherwise lacks probative force, that court is bound to act and set aside the impugned verdict.[14]

1. The applicant argues that it was not open to the jury to be satisfied of guilt beyond reasonable doubt as the complainant was an unreliable historian due to her impaired thinking at the time of the alleged offending and her poor memory of the events. This was argued as significant in three ways.
2. First, the complainant could not remember the order of events. It was submitted that the order is critical because it is common ground that, at one point, the complainant said 'no' to engaging in particular sexual activity.
3. Second, the complainant's account strengthened the possibility both that she was consenting and that the applicant had a reasonable belief in consent. The applicant pointed to the complainant's evidence that she did not return the $100, was mad at herself for not being more persistent and clear in saying 'no', willingly engaged in sexual activity although her preference was not to, and never cried nor exhibited distress whilst in the laneway. Further, she gave evidence that that she was not threatened or prevented from leaving, there were no physical signs of her saying no (and, indeed, she said she was 'physically consenting'), she was not in the right state of mind to be making decisions, she was left feeling like the boys had taken advantage of how drunk she was and she did not, on the night, believe that she had had sex without her consent.
4. Third, by failing to deny much of the 'puttage' by defence counsel, the complainant implicitly accepted the possibility that certain events attested to by the applicant occurred. These included rubbing the applicant's penis over his pants, sitting on his lap, lifting her own skirt and moving her own underwear to the side, sitting on the applicant's penis, inviting Mr Smith to clean wine from her neck, suggesting they switch positions and verbally agreeing to participate in a threesome. Most importantly, the complainant agreed, acknowledging gaps in her memory, that it was possible that she had said 'yeah, rightio, I'll do it' when Mr Smith returned. Her response when this proposition was put to her in cross-examination was, 'The fact that I have no memory, I can't say it did. Like what - what you're putting forward, I can't ... as you said, I'm under oath, I can't lie ... I don't remember.' That she also sent a text message to the applicant on 9 March 2017 asking whether she had asked to give Mr Smith oral sex underscores the point.
5. The applicant also argues that as all of the evidence must be considered, his evidence of what occurred in the laneway coupled with his explanation of why he later apologised to the complainant, namely to pacify her, adds weight to the unreasonable and insupportable verdict ground in light of the demonstrable unreliability of the complainant's evidence.

1. The respondent argues that on all the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt.
2. The level of alcohol consumption by both the applicant and the complainant was before the jury. Although the complainant described herself as 'very drunk', she was able to give an account of 11 February 2017 from the time she arrived at the house in Benalla until she returned to the applicant's home in the early hours of the following day. That account was detailed and chronologically accurate.
3. As to her recollection of the events in the laneway, the complainant conceded that her thinking process was affected by alcohol. Nonetheless, she was able to recount the conversation she had with the applicant. While she could not remember the order or exact words used, she was able to recall the conversation and her responses. She said 'no' to four questions asking if she would participate in various sexual scenarios and also said she that she didn't want to when offered $100 to suck Mr Smith's penis. She further remembered asking the applicant why he asked that she engage in sexual activity with Mr Smith when he told her that he missed her. She also remembered the applicant saying 'family comes first.' Her concession that the chronological order was, at the time of giving evidence some five years later, patchy did not undermine her evidence that she was asked those questions and gave those answers.
4. The jury was also entitled to consider the evidence of complaint and distress, both of which made it more likely that the complainant was telling the truth.
5. Further, the credibility and reliability of the applicant was affected by his failure in evidence to say that the complainant was in fact consenting and also by his Facebook message to the complainant in which he said that in all the circumstances she did not seem to mind.

1. After anxious consideration, we have concluded that ground 1 cannot succeed.
2. Proceeding, as we must, on the basis that the jury found the complainant to be both credible and reliable, the discrepancies and inadequacies of her evidence are not sufficient to engender a reasonable doubt. It was open to the jury to accept the evidence of the complainant and reject that of the applicant. In this respect we note that the trial judge's charge on this issue was both correct and balanced.
3. In particular, we observe that while willing to concede that there was much about the night that she did not remember - both specific events and the order in which they occurred - the complainant was clear and consistent that she said no to five questions concerning proposed sexual activity before any such activity took place. That evidence gains support from the applicant's response in the pretext call when the complainant said in terms that she said no more than once. The applicant did not dispute the proposition but rather said 'you still did it'.
4. That the complainant was able to recall the cascading questions concerning proposed sexual activity with the applicant and Mr Smith accurately was also demonstrated by the 'family first' evidence. The complainant said that the applicant said 'family comes first' to her when she asked why he asked her to participate in sexual activity involving Mr Smith, and for money, when he had told her he missed her. In evidence the applicant denied saying any such thing. His response in the Facebook message exchange between them the next morning is open to a different interpretation:

[COMPLAINANT]: And like I feel like I've gone out my way to try and make you two safe and forgot about me. Yeah but I'm confused to what it was and I feel sick to my stomach when I think about it and knowing you two were smiling thinking it was funny and you're (sic) comment when you said 'family first' and all this but then I get angry at myself for not being more persistent on saying no and I don't understand how it happened and got to the point it did and idk I feel like I should be angry at your and [Thomas] but I'm not so idk I feel like shit. I came home and I've never had a shower so hot in my life. And I woke up this morning with that mark on my leg and a really sore through (sic) and idk I just don't know what to think or do.

[APPLICANT]: Yes and I'm so grateful for that thank you. Well you probably have forgotten about yourself, which isn't good because really you should be putting yourself first, you have to be selfish sometimes. If you want to be angry be angry at me, I was the one who did everything, [Thomas] was just there going with it. I'm so sorry for what happened [Sarah].

1. Far from denying that he said anything like 'family first', the applicant implicitly accepts that he did and then shields his step-brother Mr Smith from blame.
2. It is also important to bear in mind that even on the applicant's case the complainant never said yes. On his account, the single verbal 'no' was uttered before any sexual activity occurred beyond kissing and cuddling. The jury was not compelled to accept the applicant's explanation that his subsequent apologies to the complainant and his statements to her in the nature of 'you didn't seem to mind' were made to pacify and appease her.
3. Further, we consider that the complainant's near contemporaneous statements that she thought she had been taken advantage of but not raped to be of little moment in the assessment of her evidence. As the mandated direction in s 47E of the Jury Directions Act 2015 ('JDA') makes clear, experience shows that people may react differently to a sexual act to which they did not consent and that there is no typical, proper or normal response. The same observation is apposite to the complainant's evidence that she was 'physically consenting' and her later self-criticism that she should have been more persistent in saying no. Section 47E of the JDA also mandates a jury direction that people who do not consent to a sexual act may not protest or physically resist the act.
4. In relation to each of charges 3 and 4 there were two live elements for the jury's consideration:

(a) Whether the jury was satisfied beyond reasonable doubt that the complainant did not consent to the acts that constituted the charges it was considering; and > > (b) Whether the jury was satisfied beyond reasonable doubt that the applicant did not reasonably believe that the complainant was consenting to those acts.

5. For the reasons expressed above it was open to the jury to be satisfied to the requisite standard that the complainant did not consent to any of the impugned acts.
6. Further, and for the same reasons, we consider that it was open to the jury to be satisfied that the applicant had no reasonable belief that the complainant was consenting to any of the impugned acts. She said no to a threesome; she said no to sex with the applicant while Mr Smith watched; she said no to sex with Mr Smith while the applicant watched; she said no to performing oral sex on Mr Smith; and she said no to the $100 offer to perform oral sex on Mr Smith. On this evidence alone it was open to the jury to conclude that the applicant either believed the complainant was not consenting, or that he gave no thought to whether or not she was consenting, or that he believed that she was consenting but that belief was not reasonable in the circumstances. Satisfaction beyond reasonable doubt of any one of these three states of satisfaction would be sufficient to establish this element.[15]
7. We would grant leave to appeal on ground 1, however this ground must fail.

Ground 2: Inadequate or erroneous jury direction regarding post-offence conduct

1. The Crown filed a notice of incriminating conduct[16] (the 'Notice') prior to the trial. The incriminating conduct proposed to be relied upon in relation to the applicant included the Facebook messages in which he apologised to the complainant and discussed whether she had consented and portions of the 8 July 2017 pretext call in which the issue of consent was again discussed. Reliance on the Notice was ultimately abandoned by the prosecution.
2. The applicant alleges that the jury was nevertheless permitted to engage in impermissible reasoning or inadequately directed in respect of the applicant's post‑offence conduct. As a result, a substantial miscarriage of justice is said to have been occasioned as a result of the jury reasoning impermissibly in relation to three categories of post-offence evidence.

1. The applicant argues that while the Crown did not explicitly rely upon flight as incriminating conduct, the effect of the prosecutor's closing address and the direction given by the trial judge pursuant to s 23 of the JDA was to invite the jury to so reason.
2. In closing the prosecutor referred to the applicant as going 'off the grid' when he did not return to his own home after the alleged offending. The prosecutor also told the judge in the absence of the jury that he relied on the applicant's flight as being relevant to his credibility. It is submitted that the judge's direction then left the jury with the impression that although it could not rely on flight to reason that the applicant was guilty of the offences charged, it could take the evidence of flight into account as one factor in reasoning towards guilt if it had first concluded that the applicant had fled because he believed he was guilty.
3. The relevant direction was in the following terms:

The next topic I want to go to is ... not to engage in improper reasoning about the fact that [the applicant] gave evidence that he ran away from Murphy Street in the early hours of 12 February 2017, that he apologised and cried to [Ms Jackson] later in the morning of 12 February saying that he would always be known as the boy who raped a girl in Wangaratta.

Now repeating what I said to you earlier, I said that you might think that this makes it look like [the applicant] committed the offences charged, but I direct you as a matter of law there are all sorts of reasons why a person might behave in a way that makes it look as if he has committed an offence. Even if you conclude that he did both of these things and [the applicant] does not deny it, you must not use either of them to conclude that he is guilty of the offence charged, just with the fact that he did it.

What you may do, the Crown submits, is that you can use it to help assess his credibility in the whole of the circumstances and in your assessment of [the applicant] as a witness.

Now you will remember I told you that in assessing witnesses you may have regard to their credibility, that is, their honesty and reliability which is a question of accuracy. That is not to say that just because you found [the applicant] ran away and later apologised using the word rape you can conclude that he engaged in the sexual penetration of [Ms Jackson] without her consent and in circumstances where he did not reasonably believe he (sic) was consenting. Now the defence argue that [the applicant] ran away with good reason. He was confronted by [Emma Jones] and in effect to sit still while she got her posse of vigilantes together. Then [Michael Hooper] told he and [Mr Smith] to get out of town.

Now the defence admit that [the applicant] made the apology, and used that word but only after it had been bandied around by a number of people in Murphy Street earlier that morning. So in effect [the applicant] is not stating what it was he said he had done but what it was people were saying about him.

So if you are going to use either of these in the assessment of [the applicant]'s conduct or in his credibility as a witness, you need to be very careful how you do so and you must not reason that because he did these things he is guilty. Not evidence of his guilt. If they are relevant at all it can only be in your overall assessment of [the applicant]'s credibility.

(emphasis added)

1. The applicant submits that the evidence of flight was only relevant insofar as it could provide context to the communications between the applicant and complainant.
2. It is submitted that the trial judge wrongly directed the jury that it could use the evidence of flight in its assessment of the applicant's credibility. Credibility was relevant to the jury's assessment of the applicant as a witness especially as he had given a no comment record of interview. But critically, the issue of flight could not affect his credibility unless the jury first reasoned that the applicant was lying when he gave an innocent explanation for running away. The jury would have considered that the applicant was either running away because he was scared of a mob of vigilantes, or because he was conscious of his own guilt and participation in the offending - there was no third possible reason for the applicant's flight. Thus, the jury would have likely engaged in circular and impermissible reasoning absent the legislative safeguards accompanying a notice of incriminating conduct.
3. Whilst the judge directed the jury that it could not reason that the applicant was guilty because he fled, such a direction was futile in circumstances where the charge also seemed to suggest that the applicant's flight had relevance beyond credibility and that it was relevant in the jury's assessment of the charged conduct. Adding the words 'just with the fact that he did it' after the standard wording of s 23 of the JDA and referring to an assessment of the applicant's credibility 'in the whole of the circumstances' was apt to confuse the jury. Further, by stating that the defence argument was that the applicant 'ran away with good reason' the judge appeared to suggest that the applicant's reason for running away was an issue in dispute.

1. The respondent submits that the prosecutor's closing remark about the applicant being 'off the grid', was a direct quote from the evidence of the complainant. The complainant had planned to stay at the applicant's house that night. Upon arriving there with Mr Hooper, she said that no one could find the applicant because he had turned off all his internet locations and social media and was not responding to messages. In this context, it is argued that the comments by the prosecutor to the jury were confined to the applicant being uncontactable and nothing more. Further, the evidence of the applicant's departure from Wangaratta had arisen during his examination-in-chief and the jury heard his full account in relation to it.
2. The respondent also argues that any risk of impermissible reasoning was clearly mitigated by the trial judge's orthodox charge. This is because the judge made reference to the conduct that could engage such reasoning, warned the jury in accordance with the wording in s 23 of the JDA, directed the jury that it could use the evidence to help assess the applicant's credibility and reminded them of the defence argument that the applicant ran away for good reason (personal safety).

(b) The applicant sitting and waiting for the complainant on Murphy Street

1. Issue is taken with the following exchange that occurred during the prosecutor's cross‑examination of the applicant:

[Thomas] and you went back to Murphy Street, but you didn't go into the club? ---No.

Why not? ---Um, because, like [Sarah] said, 'I'll meet you back at the clubs', we were waiting for [Sarah] on the corner.

I see... and then you, what, sat outside for an hour, an hour and a half waiting for [Sarah]?---I'm not sure how long it was but I don't believe it was that long.

Well, I suggest to you it was certainly a long time?---Ah, I'm not sure. Like I said, I don't know long we sat there.

Well, look, you've heard the evidence. You've been here when the evidence that [Sarah] tried to ring another girl, and then she rung [Paige Peters]...

She's then got a taxi to [Paige Peters'], and then she's had a conversation with [Paige Peters]. And then she had [Emma Jones] come and pick her up and bring her back into town. You've heard all that evidence?---Ah, yes.

And the whole time you're sitting out in the street waiting for her to come?---Well, not just waiting for her but, yeah, we were hanging out, waiting. Like, just sitting on the corner.

Well, why didn't you go back into the club where your mates were?---Well, I'm not sure. That's just what we decided to do.

Was it because you were too scared because you knew what had happened? ---No. Certainly, not at all.

I see. You had gone out to be with your mates yet you refused to go back into the club, I suggest, because you knew what happened and you were worried about what was going to happen if you went back into the club?---No, not at all. And I was sitting there with [Thomas], my mate. We were just hanging out.

1. The applicant argues that the only purpose of this line of questioning was to suggest that the applicant waited outside the clubs for the complainant for a long period of time because he was conscious of his guilt. That questioning was impermissible and prejudicial. Accordingly, it would have been necessary for the judge to direct the jury that it could not take this conduct into account in reasoning towards guilt. No such direction was given, occasioning a substantial miscarriage of justice.

1. The respondent submits that the questions about the length of time the applicant spent waiting outside the clubs were aimed at testing his credibility and reliability. The applicant stated that he did not wait long, yet other evidence suggested that some time had passed. Similarly, the purpose of the prosecutor's question regarding whether the applicant did not go back into the club because of 'what had happened' (that he had sexually assaulted the complainant) was nothing more than a challenge to the state of mind and the credibility of the applicant.
2. The respondent argues that the trial judge was not required to make particular reference to this evidence or to provide a warning in respect of it. The general warning about impermissible reasoning covered these questions. Further, the applicant's trial counsel did not raise any issues or seek specific directions concerning this line of questioning.

(c) The applicant's failure to assert his innocence in subsequent communications

1. The applicant submits that the prosecutor placed considerable focus on the applicant's suggested failure to assert his innocence in his subsequent text messages and conversations with the complainant - specifically, by challenging him about it in cross‑examination 29 or 30 times.[17]
2. Further, in his closing address, the prosecutor said:

(a) If 'it happened' the way the applicant said 'it happened' in his evidence, it was absurd that he would not have 'put' that to the complainant in the communications between them; > > (b) At no stage in the communications did the applicant 'put' to the complainant that she was consenting; > > (c) The applicant's failure to 'put' to the complainant in these communications that she consented goes to the issues of consent and his reasonable belief in consent; and > > (d) If he had a reasonable belief in consent, one would expect that he would 'take that up' with the complainant in these communications.

3. The applicant submits that there is a real risk that the jury would have understood the prosecutor to be alleging that the applicant's suggested failure to do the above involved implied admissions. The applicant also refers to an instance of the prosecutor self‑correcting a statement which commenced as an incriminating conduct argument during his closing address.[18]
4. The trial judge gave no direction to the jury as to how to approach the applicant's failure to assert his innocence. The jury was not told how that evidence could be used as well as how it could not be used. The applicant argues that consequentially, there was a real potential for the reversal of the onus of proof.
5. The applicant also submits that the failure by his trial counsel to seek such a direction was not fatal to the present application. Section 16 of the JDA would have mandated such a direction as there were substantial and compelling reasons for giving it even though it had not been requested.

1. The respondent argues that the purpose of that cross-examination was to expose the divergence between the applicant and complainant's accounts as well as the applicant's failure to correct matters raised by the complainant.
2. For example, in the pretext call, when asked by the complainant why he went ahead and penetrated her when she said no to sex, the applicant acknowledged that he went ahead although he was aware that she had said no. The respondent submits that the inconsistency between the applicant's response in that pretext call and his evidence that the complainant became an 'eager participant' to the sexual activity after being offered $100 to suck Mr Smith's penis, rendered it appropriate to challenge him and ask why he did not put to the complainant during the pretext call what he later said in his evidence. When so challenged, the applicant agreed he never told the complainant that she agreed to perform oral sex with Mr Smith in return for $100, but said this was because he was trying to placate her and did not want to inflame the situation. These were matters relevant to his credibility and no direction by the trial judge was required.
3. The respondent also submits that the applicant's trial counsel was best placed to decide what directions ought to be requested and to raise any exceptions to the judge's charge. She did not raise any such matters.

1. In our view, ground 2(a) has been established.
2. Section 23 of the JDA provides that defence counsel may request a direction from the trial judge, where evidence of conduct is not relied on as evidence of incriminating conduct, to avoid the risk of improper use of that evidence. In giving the direction, the trial judge must:

(a) direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and > > (b) warn the jury that even if it thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.

3. The judge's charge on this issue commenced in an orthodox fashion. However, the additional statement that the jury was entitled to use 'the fact that he did it' - that is ran away from Murphy Street - in assessing the applicant's credit as a witness in circumstances where the judge referred to the defence argument that the applicant did so 'with good reason' produced incurable prejudice.
4. The evidence of flight was not 'reasonably capable'[19] of amounting to incriminating conduct. Indeed the Crown did not seek to rely upon it as such, even in the later abandoned Notice. The prosecution evidence was clear that the applicant (and Mr Smith) were aware of, and specifically warned about, aggressive others in the vicinity and the desirability if not necessity of making themselves scarce. A rational jury could not determine that the reason for the applicant's flight was because he believed he had raped the complainant rather than because he was frightened of the gathering mob. The innocent explanation and the incriminating explanation are equally plausible. The evidence of flight was 'intractably neutral'.[20]
5. That being so, the evidence was incapable of assisting the jury to assess the applicant's credit as a witness unless the first step in that assessment was to determine whether the applicant was truthful or not about why he left the vicinity. That step impermissibly traversed the intractable neutrality of the evidence. The judge's charge specifically directed the jury that it may take that step. If the jury did take that step and conclude that the applicant's evidence about the gathering mob was false, that conclusion could only be on the basis that it concluded that the reason the applicant fled was because he knew he had raped the complainant. And that incriminating conduct reasoning had been specifically eschewed by the Crown.
6. Contrary to the respondent's submission it is immaterial that evidence of the applicant's departure from Wangaratta arose during his examination in chief. He had not given a record of interview. The circumstances in which he left the scene of the alleged offending were relevant to and gave context for the later communication between him and the complainant. It was necessary and important to the defence case that the applicant give his explanation for his later apologies.
7. Ground 2(a) being made out, we would also uphold ground 2(b).
8. In isolation, ground 2(b) would not succeed. The prosecutor's suggestion in cross-examination that the applicant did not re-enter the night club because 'he knew what had happened' was not again referred to in the trial. Absent the specific invitation made to the jury to engage in impermissible reasoning regarding the applicant's explanation for his flight, the jury was unlikely to attach any particular weight or reasoning process to the two questions asked and answered.
9. However, in circumstances where it was necessary for the jury to assess the applicant's credibility and where it had the judge's imprimatur to engage in impermissible reasoning concerning the applicant's reason for leaving Wangaratta as part of that process, there is a prospect or chance that the jury also assessed the veracity of the applicant's stated reason for his actions between the time the complainant left the laneway and he left the scene. That is, the actions form part of a continuum in the immediate aftermath of the offending alleged.
10. The next question for determination is whether in establishing the complaints made under the above grounds the applicant has established that, as a 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.[21]
11. There has been no exhaustive definition of what can constitute a substantial miscarriage of justice for the purpose of s 276 as the phrase embraces events and conduct that are too varied and numerous to permit prescription of a singular test.[22]
12. In Baini the High Court identified three types of miscarriages that may arise:

(a) Where the jury has arrived at a verdict that cannot be supported by the evidence in the case; > > (b) Where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial; and > > (c) Where there has been a serious departure from the prescribed processes for trial.'[23]

13. There is substance in ground 2(a) and to a lesser extent in ground 2(b).
14. Applying Baini in respect of ground 2(a), the evidence of flight was not relied upon as an implied admission of guilt through incriminating conduct reasoning, but the jury was directed that it could be used when evaluating the applicant's credit. It could only be so used if the jury positively concluded, contrary to his evidence, that he fled the scene conscious of his guilt. We consider that directing the jury that it could use this evidence as going to the applicant's credit constituted an error in the trial.
15. As we have said, ground 2(b) would be unlikely to succeed in isolation, however it adds a sting to ground 2(a).
16. If we cannot be satisfied that these errors did not make a difference to the outcome of the trial, the applicant will have demonstrated a substantial miscarriage of justice. Elsewhere in Baini this test is seemingly used interchangeably with a slightly differently expressed test couched in more positive language. Where there has been an irregularity in the trial 'if the appellate court concludes from its review of the record that conviction was inevitable'[24] then the error identified will not amount to a miscarriage of justice. Indeed the majority in Baini, having determined an irregularity did occur in the trial, remitted the question to the appellate court to determine whether from 'its review of the record that conviction was inevitable'.[25]
17. However the test is framed, we consider it must be answered favourably to the applicant. This case, like most rape cases, was a contest of accounts between the complainant and the applicant. Whilst it was well open to the jury to convict the applicant, it was not an overwhelming case. In the central contest of oaths, an erroneous judicial direction on credit may well have had the capacity to influence the outcome of the trial. We are not satisfied that the error did not make a difference to the outcome of the trial. Further, from our review of the record, we are not satisfied that, absent the error, that conviction was inevitable.
18. Our conclusions on ground 2(b) fortify us that there has been a substantial miscarriage of justice, although if considered alone we doubt that the irregularity alleged in ground 2(b) would have made a difference to the outcome of the trial.
19. We would not uphold ground 2(c).
20. In our view there is no danger that the jury would have reasoned that the applicant's responses to the complainant in the Facebook messages and pretext call were an implied admission. This was a 'word versus word' trial. It was necessary for the prosecutor to cross-examine the applicant about these statements in order to test the credibility and reliability of his version of the events in the laneway. The cross-examination was thorough and unobjectionable.
21. Further, the prosecutor's self-correction of a near argument that the evidence did amount to incriminating conduct was made before any harm was done. The jury was very unlikely to have appreciated the import of the words not spoken.
22. Grounds 2(a) and (b) are established. Ground 2(c) is not.

Ground 3: Impermissible reasoning in relation to complainant's intoxication

1. The applicant argues that the jury was invited to impermissibly reason that the complainant did not consent to the sexual activity by reason of intoxication. This occurred in the following ways.
2. The prosecutor asked the applicant numerous questions in cross-examination about the complainant's consumption of alcohol and level of intoxication. He put to the applicant that he had taken advantage of the complainant's intoxication.
3. Further, he addressed the jury very extensively in relation to the complainant's consumption of alcohol. The following examples are given:

(a) The prosecutor outlined in detail when and where the complainant had consumed 4‑-5 vodka mixed drinks, the bottle of Passion Pop, some of the cask wine and 2-5 shots; > > (b) He said that she had described herself as being 'very drunk' in the laneway, and reiterated in detail the alcohol she had consumed; > > (c) He again referred to the complainant describing herself as 'very drunk', and that she had started to feel sick; > > (d) He described the three taking turns to drink from the wine cask; > > (e) He said the complainant had said, 'I'm intoxicated and I can't remember the exact order of things'; > > (f) He twice repeated, 'she said she was so drunk and she fell over the boys'; > > (g) He said that the complainant sent Ms Peters a text whilst in the taxi, stating 'I'm so drink (sic)'; > > (h) He said Ms Peters described the complainant as being 'pretty intoxicated'; > > (i) He said that Mr Hooper had described the complainant as 'obviously intoxicated at this stage but not completely impaired'; > > (j) He referred to the doctor's note that the complainant had said she had been intoxicated and drinking 'goon' in the alleyway; > > (k) He referred to the complainant consuming substantial amounts of alcohol to the point where she could not stand up properly and was feeling sick, 'and it was at that point that the sexual activity took place'; > > (l) He said that the complainant and the applicant had been 'drinking all day' and had 'consumed a substantial amount of goon in the dark alleyway', and that 'there's clearly a level of intoxication, whatever level you want to find but clearly the complainant ... has given her evidence as to how intoxicated she was ...'; > > (m) He concluded by saying to the jury, 'she said no, and yet he went ahead and took advantage of her. That's in effect what happened here. Took advantage of her in an intoxicated state. In a state where she couldn't respond or react in a rational way to what was happening to her at the time'.

4. The applicant argues that the prosecutor's use of the expression 'took advantage of' was considered and deliberate and that his closing address amounted to an indirect submission that the complainant was too drunk to consent. The applicant submits that the unfairness created by the closing address was not remedied by the judge's directions and likely could not have been cured by any direction.
5. This was despite the judge directing the jury that it would not get any assistance from the words 'I feel like I got taken advantage of', which were used in the text messages, and that it should concentrate on the legal definition of rape.

1. The respondent submits that the trial judge's directions to the jury on this point were clear. The following portion of the charge is referred to:

Now the law says that a person can consent to an act only if they are capable of consenting and free to choose whether or not to engage in or allow the act. The law says that in some circumstances the complainant will be taken not to freely agree and such a circumstance will be where they have consumed alcohol and are so intoxicated as to be incapable of consenting to the act of penetration.

Now I gave you a direction on Tuesday afternoon and I give it to you now, I also gave it to you yesterday, the Crown is not, I repeat not putting its case on the basis that [Sarah Jackson] was so intoxicated through the consumption of alcohol as to be incapable of giving free agreement. You might think that that makes good sense given that Ms [Jackson] gave evidence that she was asked a series of questions by [the applicant] proposing sexual activity and she answered no to all of them. That was her evidence.

So in this way, the issue of the level of her alcohol consumption will not assist you in determining whether or not she consented. Her consumption of alcohol, if it has any relevance, is only a background circumstance. It is part of the context and circumstances in which it is alleged the offending occurred.

1. The judge repeated himself so as to make it clear that intoxication was not relevant to consent. Defence counsel took no exceptions to the charge.

1. Ground 3 is not made out.
2. The complainant's intoxication was, as correctly stated by the trial judge, relevant to the context in which the offending occurred. The directions given to the jury were both correct and clear as to how the jury could and could not use that evidence.
3. Specifically, to the extent that any unfairness was created by the prosecutor's reference to the complainant's phrase of 'took advantage of', that unfairness was cured by the trial judge directing the jury that those words were of no assistance in their task of assessing whether the prosecution had proved the elements of the charged offences.

Ground 4: Failure to adduce evidence from applicant about complainant's intoxication

1. Even if ground 3 were to fail, the applicant argues that a substantial miscarriage of justice occurred by reason of defence counsel misunderstanding the Crown case and failing to adduce evidence from the applicant about the complainant's consumption of alcohol and level of intoxication.
2. Following his Honour's ruling on the no case submission, defence counsel understood the Crown case to be that it would not rely on intoxication as the basis for the complainant being incapable of providing consent. She raised this matter before the trial judge, in the absence of the jury. Defence counsel then remarked that she had tailored her examination in chief based on her understanding of the Crown's case and 'cut it down' accordingly.

1. The respondent argues that when defence counsel raised the prosecutor's excessive questioning about the complainant's level of intoxication with the trial judge, the prosecutor confirmed that whilst intoxication was not a consent-negating position, the issue of intoxication was well and truly before the jury as it went to the state of mind of both complainant and the applicant. Defence counsel had correctly understood the Crown's position.

1. Ground 4 is not made out.
2. Reading the whole of the examination-in-chief of the applicant reveals that defence counsel asked the applicant a number of questions about the complainant's sobriety. She asked whether the applicant and his friends had eaten anything whilst at the gathering in Benalla, where alcohol was consumed throughout the day. She also asked how he was feeling, and how the complainant appeared, whilst they were in the laneway. She asked about the complainant's level of physical stability and whether she was able to support herself during the sexual activity.
3. That further questions on these topics might have been asked does not alter the position that much evidence on the topic was in fact elicited. Further questions would not have produced different answers. No unfairness to the applicant arose.

Ground 5: A combination or aggregation of defects

1. The applicant argues, in reliance upon R v Kotzmann, that a combination or aggregation of defects relating to jury directions caused the trial to miscarry.[26]

1. The respondent argues that are no defects, alone or in aggregation, that have resulted in a substantial miscarriage of justice.

1. Given the conclusions reached with respect to grounds 2, 3 and 4, it is not necessary to address this ground.

1. Leave to appeal is granted. The appeal is allowed under grounds 2(a) and (b). The matter is remitted to the County Court for re-trial.

[1] This judgment has been anonymised by the adoption of pseudonyms to ensure that there is no possibility of identification of a victim of sexual offending.

[4] The Crown case opened on the bases that the complainant either did not consent or was so intoxicated as to be incapable of consenting. The trial judge found no evidence to sustain the second basis as the sexual activity occurred moments after she had communicated her non-consent to the applicant: DPP v [Smith] (Unreported, County Court of Victoria, 18 August 2022, Judge Lyon), [38]-[42].

[6] The trial judge found there was no evidence as to how her breasts had become exposed and no suggestion in the complainant's evidence or the evidence of others that the two accused continued this conduct after she said 'stop': DPP v [Smith] (Unreported, County Court of Victoria, 18 August 2022, Judge Lyon), [29]-[30].

[7] The complainant was unable to confirm whether Mr Smith was present during the conversation.

[11] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 ('M').

[12] Pell v The Queen (2020) 268 CLR 123, 145 [39] (The Court); [2020] HCA 12 ('Pell').

[13] M [1994] HCA 63; (1994) 181 CLR 487, 492-4 (Mason CJ, Deane, Dawson and Toohey JJ).

[14] Ibid, 493-5 (Mason CJ, Deane, Dawson and Toohey JJ).

[15] See for example Bergman (a pseudonym) v The Queen [2021] VSCA 148, [26] (Maxwell P and Kaye JA, McLeish JA agreeing).

[16] In accordance with s 19 of the JDA_._

[17] The applicant's written submissions recorded 29 such challenges, but in oral submissions counsel for the applicant said the question had been asked '30 different times in 30 slightly different ways'.

[18] The prosecutor said, 'the tenor of those conversations both in the SMS and in the pretext call are that he's trying to placate her, calm her down because in my submission he knows that - it goes to credibility, you can assess the credibility of his account by what he does.'

[19] JDA, s 20(1)(b).

[20] DPP v Scriven (Ruling No 4) [2015] VSC 220, [26] (Maxwell P).

[21] Criminal Procedure Act 2009, ss 276(1)(b) and (c).

[22] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59 ('Baini').

[24] Baini [2012] HCA 59; (2012) 246 CLR 469, 482 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.

[26] [1999] VSCA 27; [1999] 2 VR 123, 138 [48] (Callaway JA), 157 [115]-[116] (Batt JA); [1999] VSCA 27.