CRIMINAL LAW - Appeal against sentence - Lengthy and largely unexplained delay - Whether sentencing judge failed adequately to take significance of delay into account -Appellant resentenced - R v Merrett [2007] VSCA 1; (2007) 14 VR 392 applied.

1 On 5 December 2011, following what many would now regard as an unusually short trial, the appellant was found guilty, in the County Court at Melbourne, of having, on 1 July 2008, intentionally injured (count 2), and digitally raped (count 3), CR, a woman with whom he had had a lengthy but turbulent relationship. He was acquitted of a further charge which alleged that a week or so earlier he had raped CR (count 1). Count 1 involved an allegation of penile rape.

10 years [Crimes Act 1958 (Vic) s 18]

25 years [Crimes Act 1958 (Vic) s 38(1)]

3 The background facts may be briefly stated. The appellant and CR first met in 2003. CR moved into the appellant's house in the early stages of the relationship. After two or three months, however, she moved out. She subsequently lived in separate premises, though the relationship was maintained through to May 2008. CR described the relationship as having been marked by emotional and verbal abuse. From May 2008 to the date of these offences, CR and the appellant continued to attend social gatherings together, and CR would sometimes go to the appellant's house.

4 It should be noted that CR alleged that in about April or May 2003, while they were living together, the appellant, after reading an innocuous message from someone with whom she was corresponding as part of her job, pulled her down onto the floor, took his pants off, called her a slut and demanded oral sex. She threatened to call the police, but he continued to verbally abuse her. She gave evidence of further abuse during that period, but no additional violence.

5 It is fair to say that the appellant's description of his relationship with CR was bizarre, to say the least. He told police that it was their practice, by agreement, for her to inspect his person so as to (according to the appellant's written outline of submissions) 'allay suspicions of infidelity'.

6 CR's evidence supported the appellant's account of their relationship, at least to some degree. She said that there was an element of 'mistrust' between them as to the fidelity of the other. She described their relationship as having been (in the words of the trial judge) 'marked with emotional and verbal abuse'. She added that as at the date of the offending, the appellant had not come to terms with her decision to break off their relationship.

7 At about 11:00am on 1 July 2008, the pair spoke by telephone. They argued. The appellant asked permission to attend at CR's home, but she refused. A short time later, the appellant arrived at the complainant's home regardless. She let him in, and they moved to the kitchen where the argument continued. She claimed that the appellant became abusive and violent towards her. She said that he punched her to the face repeatedly and questioned her about whom she had been with. He asked her why she had not answered his telephone calls. According to CR, one of the blows which he struck was hard enough to knock a fork she was holding out of her hand.

8 CR said that she attempted to defend herself by raising her arms over her head. That did not stop the flurry of blows which continued even after the appellant forced her into the bedroom and onto her bed. She claimed that over her tearful but vigorous protests he ripped her pants off, forced her legs apart, pulled down his own pants and digitally raped her while asking her 'who had been in there', meaning her vagina.

9 CR claimed that the appellant then searched her bedroom for a telephone in his efforts to uncover whether she had another male friend. When he went to search her computer room for the same purpose, she escaped. By that stage, her face was already showing signs of 'significant bruising and swelling'[1] from the blows that the appellant had struck. There was medical evidence which suggested that significant force would have had to have been used in order to bring that about. She was also displaying signs of very significant distress.

10 Evidence was given at the trial by two young women who were neighbours of CR, and who had observed the early effects of the appellant's physical aggression towards her. They had gone to investigate after hearing the appellant screaming on the road outside.

11 The appellant did not give evidence. When interviewed by the police he did, however, make some limited admissions. He conceded that he had 'slapped' CR twice,[2] and that he had touched, but not penetrated, her vagina.[3] By implication, the appellant was also contending, in relation to charge 3, that CR had consented to his having done what he did.

12 Pursuant to leave granted by Harper JA, the appellant now appeals against both conviction and sentence.

13 Leave to appeal against conviction was granted on the following grounds:

1. The trial judge erred in directing the jury that the 'distress' of the complainant could provide independent support for the complainant in respect of count 3 [digital rape].
2. The trial judge erred in his directions as to the matter of distress in respect of count 3.

14 The appellant was refused leave on the following additional grounds of appeal against conviction:

3. The uncharged act of 2003 was wrongly admitted into evidence.

1. The trial judge erred in not directing the jury that its findings as to the complainant's credibility on the matters going to count 1 could be taken into account when considering counts 2 and 3.
2. The failure to lead positive evidence of the applicant's good character (save for his lack of prior convictions) such as was led on the plea has occasioned a miscarriage of justice.
3. The trial judge erred in his directions to the jury on the matter of good character.
4. The trial judge erred in not discharging the jury on the basis of the contents of the juror's note to the trial judge.

15 The appellant sought leave to appeal against sentence, before Harper JA, on the following grounds:

1. The sentences imposed are manifestly excessive, both as to individual sentences and the minimum term to be served before becoming eligible for parole.
2. The trial judge erred in his characterisation of count 3 as a 'serious example of that always grave crime'.
3. The trial judge erred in giving insufficient or no regard to the delay between the offending and the imposition of sentence.

16 Harper JA refused leave to appeal on proposed ground 1, as it had been formulated. He also refused leave to appeal on proposed grounds 2 and 3, but granted leave on a reformulated ground 1.

17 In reformulating ground 1, his Honour granted leave to appeal against sentence on the basis that the sentencing judge had failed to accord sufficient weight to the delay that had occurred between the date of the offending, 1 July 2008, and the appellant's conviction on 5 December 2011. He considered that when one combined the effect of that delay with the powerful evidence of good character and rehabilitation led on the plea, it could reasonably be argued that the total effective sentence of six years and two months, and the non-parole period of four years, were manifestly excessive.

18 The appellant filed a notice of election with respect to all of the proposed grounds on which he had been refused leave. Shortly before the oral hearing of the appeal, however, his counsel indicated that ground 6 of the conviction appeal would not be pursued. Accordingly, it is unnecessary to say anything further regarding that matter.

19 It is convenient first to deal with, and to dispose of, the election grounds first.

20 The appellant submitted that the trial had miscarried because the complainant had been permitted to lead evidence of the appellant's attempt to force her to have oral sex with him in April or May 2003. This evidence was said to have been wrongly received as 'relationship evidence'.

21 It was submitted that the evidence concerning the 2003 allegation was too remote in time, and nature, to have any relevance in relation to the events of 1 July 2008. Moreover, even if that evidence did satisfy the test of relevance, it ought to have been excluded in the exercise of discretion, whether under s 135 of the Evidence Act, or s 137.

22 One answer to that submission is that the evidence concerning the 2003 incident was admitted without objection. The Crown had originally filed a tendency notice, intending to lead the evidence as tendency evidence. By the time of trial, however, it had withdrawn that notice. An agreement was struck between the prosecutor and counsel who appeared on behalf of the appellant below, allowing the evidence to be led as going to relationship and context.[4]

23 The complainant gave evidence of an ongoing history of verbal and emotional abuse. The 2003 incident involved a physical assault, albeit one that was comparatively less serious than the events that gave rise to the counts on the presentment. It did, however, establish that the charged acts did not occur 'out of the blue'.[5]

24 As the Crown correctly pointed out, the jury acquitted the appellant on count 1, which was itself closely related in time to counts 2 and 3. That provides some support for the view that the jury fully understood the trial judge's directions regarding uncharged acts, and did not reason that, merely because the appellant had been violent in 2003, he must also have been violent on 1 July 2008.

25 At the same time, it should not be forgotten that the appellant did not challenge CR's account of having been struck by him more than once to the head on the morning of 1 July 2008. In that sense, the fact that he had been violent towards her on that occasion was not in issue. Evidence concerning the 2003 incident would not, in the circumstances, have deprived him of a fair trial.

26 Harper JA was correct to refuse leave on this ground.

27 This ground complains of the trial judge's failure to direct the jury that, if they acquitted the appellant on count 1 (and necessarily therefore disbelieved the complainant), they could use that fact as the basis for an adverse finding against her credibility when dealing with counts 2 and 3. In other words, the jury should have been specifically told that if they did not believe CR in relation to any one count, they could use that finding when deciding whether she should be believed in relation to another.

29 The first is that the ground assumes, in a somewhat condescending way, that jurors are utterly devoid of common sense.

30 The second is that this must be one of the few occasions in recorded history where an appellant has complained on appeal that he was denied a fair trial because the jury were told to give separate consideration to each count on the presentment. Had no such direction been given, the trial judge would, no doubt, have been castigated before this Court for having fallen into error. It is now said, however, by new counsel, that the appellant suffered irreparable prejudice because his Honour, having given the standard direction in impeccable terms, did not go on to say that the jury should disregard that direction if they acquitted the appellant on any one count.

31 No authority was cited for that proposition. That is hardly surprising. It is plainly untenable.

32 Harper JA was correct to refuse leave on this ground as well.

33 The appellant submits that he suffered a miscarriage of justice because his counsel, apart from eliciting that he had no prior convictions, did not lead any evidence of positive good character.

34 The decision whether or not to adduce such evidence involves a forensic choice. No doubt, there were arguments for and against adopting the course that counsel did. Given that the appellant himself acknowledged that his relationship with the complainant had been acrimonious in the past, and agreed that he had struck her a series of blows to the head on the very day of the alleged rape, there would have been risks associated with calling a number of character witnesses. No doubt, those witnesses would have been extensively cross-examined. One could not be sure what their response to the information that the accused had struck the complainant in that way would have been.

35 This Court will not lightly 'second guess' a considered forensic decision for which there was a perfectly rational basis.[6] This was not a case in which it could be said that the forensic decision taken below was suggestive of incompetence.

36 Harper JA was correct to refuse leave to appeal on this ground.

37 This ground concerned a note written by a juror to the trial judge complaining of the views and attitudes of two other members of the jury. The note was provided to his Honour during the course of his charge, shortly before the jury were to retire to consider their verdict. It seems that the note was written while the author was en route to the Court that morning. It conveyed to his Honour that the writer considered that those two other jurors were acting on speculation, and not evidence.

38 The note arose out of a concern on the part of the juror that certain answers that the appellant gave to police during the course of his record of interview were being viewed with extreme cynicism by those other two jurors, ostensibly on the basis that the appellant had been given advice by a police officer friend before participating in the interview. The fact that the appellant had spoken to that friend before being questioned in relation to these matters emerged from the record of interview itself. It was suggested by the writer that the two jurors were treating the appellant's answers as untrue in so far as he claimed to have 'slapped' the complainant, that being a 'sanitised' version of what had occurred produced in response to the 'advice' he had been given.

39 It was submitted that the trial judge ought to have discharged the jury once this note had been drawn to his attention. The short answer to that submission is that no application for any such discharge was made. Rather, trial counsel's reaction to the note was that it indicated nothing more than that the jury had discussed various matters, and that the author of the note did not approve of what two other jurors had said.

40 In that regard, the transcript speaks for itself. Upon the note being brought to the attention of counsel by the trial judge, counsel for the accused said:

[DEFENCE COUNSEL]: Thank you, Your Honour. I won't be making any application in relation to this jury. All I would ask Your Honour is that as part of your directions, that you remind the jury that there is no evidence in this case of any police corruption. There is no evidence that any police officer has attempted to pervert justice or has given advice to Mr Flora that affected the interview. There's simply no evidence of that.

HIS HONOUR: You want that? You want that?

[DEFENCE COUNSEL]: Yes.[7]

41 It need hardly be said that a ground which complains of a failure to discharge the jury will not be well-received in this Court where not only was there no application for a discharge, but trial counsel, having had the matter drawn to his attention, sought instructions from his client[8] and specifically declined to make any such application. Instead, he proffered a different solution, which the trial judge, at his urging, embraced.

42 We should add for the sake of completeness that his Honour's direction to the jury closely accorded with that which trial counsel had sought. He told them:

You might think where he mentions that he speaks to a police officer just in the course of exercising his rights, that has got absolutely nothing to do with it and just put it out of your consideration. Just concentrate on the heart of the record of interview, those things that you see there that are relevant to the account that he gives.[9]

43 Not surprisingly, no exception was taken to that direction.[10] In these circumstances, Harper JA was plainly correct in refusing to grant leave to appeal on this ground.

Conviction: grounds 1 and 2, upon which leave was granted

44 The real issue raised by these grounds is whether the evidence of the complainant's distress was appropriately referable to count 3, as distinct from the count of intentionally cause injury, or perhaps the lesser alternative of indecent assault.[11]

Historical approaches to evidence of distress

45 Both parties referred to R v Flannery,[12] a leading Victorian case on the use of distress evidence. That case was, of course, heavily influenced by its context and the issue which was there under consideration, namely whether the complainant's distress could amount to corroboration of her complaint.

46 In Flannery, Winneke CJ, Pape and Starke JJ said:

In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath's Case, supra, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.[13]

47 That statement expressly drew upon R v Redpath,[14] a judgment of the English Court of Criminal Appeal. That too was a case where the issue was whether evidence of the complainant's distress was capable of corroborating her account. The Court held that it was. Parker LCJ (with whom Winn and Brabin JJ agreed) said:

It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight, or little weight, could be attached to such evidence as corroboration.[15]

48 The Court in Flannery also referred to R v Knight,[16] another decision of the English Court of Criminal Appeal, in which Parker LCJ (with whom Sachs and Nield JJ agreed) elaborated upon the effect of the earlier decision in Redpath. His Lordship said:

Despite what was said in that judgment, there has been a tendency since then for judges to leave to the jury almost every case where a complainant is seen to be in a distressed condition, and in several cases since R v Redpath, supra, and in particular two cases to which we have been referred, R v Okoye, [1964] Crim LR 416, and the case of R v Luisi, [1964] Crim LR 605, I endeavoured to stress that the distress shown by a complainant must not be over-emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence.[17]

49 Parker LCJ distinguished the facts of Knight from those in Redpath, and added:

There [i.e. Redpath] the girl emerged from a moor or common land in a matter of seconds after the appellant, the man alleged to be concerned, had left. She was not going to make a complaint at that moment, and she had no idea she was being observed. In fact an independent bystander saw her emerge in an extremely distressed condition. The court there had no hesitation in saying that the evidence of that independent bystander was capable of amounting to corroboration. In giving judgment, I said: 'Of course the circumstances will vary enormously, and in some cases quite clearly no weight, or little weight, could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little, if any, weight to that evidence, because it is all part and parcel of the complaint. The girl making the complaint might well put on an act and simulate distress.[18]

50 The question of distress in relation to corroboration was raised, some time after this line of cases, in R v Byczko (No 2).[19] There, the only issue at trial on a count of rape had been consent. The complainant, following the episode in question, had been dropped off by the appellant, at her direction, at the house of one of her friends. That friend, and her mother, gave evidence at trial of the complainant's distress. There was a ground of appeal that the trial judge had failed to warn the jury that the distress evidence could not amount to corroboration, or, alternatively, that the jury should only attach little weight to it.

51 Bray CJ referred to both Knight and Flannery, and the approach that those cases had taken to Redpath.[20] His Honour said that these cases indicated that courts were 'disturbed'[21] by the frequency with which distress evidence had been adduced. He added:

The vicissitudes of the status of distress on the part of the prosecutrix as potentially corroborative of her account of an alleged sexual offence committed upon her, would make an instructive footnote to legal history. It is an example of a doctrine comparatively recently introduced and speedily repented, or at least substantially qualified.[22]

52 Bray CJ observed that the circumspection shown towards Redpath in these later cases had led to a requirement that a direction be given to the effect that, except in special circumstances, distress evidence should ordinarily bear 'little weight'. His Honour distinguished those cases, however, on the basis that the trial judge had, in fact, excluded the distress evidence from the matters the jury might consider as potentially corroborating the complainant's version of events.

53 It seems, therefore, that, typically, two issues used to arise in cases of distress evidence. The first was whether such evidence was capable of amounting to corroboration. That question required an analysis of various factors, many of which were outlined in Flannery. These included the age of the complainant, and the interval between the alleged assault and when she was observed to be in distress. Secondly, a judge was required (except in special cases) to warn the jury that evidence of distressed condition would carry little weight.

54 The rationale for that warning was considered in R v McDougall,[23] a decision of the Full Court of the Supreme Court of Queensland, where the stringency of the need to give such a warning was seemingly relaxed. D M Campbell J (with whom Campbell CJ and Sheahan J agreed) said:

The reason for a warning is that distress may be feigned or may not reflect the complainant's state of mind at the time of the offence. But a warning is not called for in every case. It is not absolutely necessary that a jury be told that generally evidence of a distress condition is of little weight.[24]

55 However, the continuing applicability of the early authorities - at least in non-Uniform Evidence Law ('UEL') states - has been confirmed in a number of cases. Many of these are from Western Australia.[25]

56 For example, in Grubisic v Western Australia,[26] a recent decision of the Western Australian Court of Appeal, Flannery was cited with approval. The Court said:

It is well-established that it may be necessary for a trial judge to give a warning to the tribunal of fact about the proper use to be made of evidence as to a complainant's distress.[27]

Evidence of distress as a species of circumstantial evidence - intractable neutrality

57 It is only in comparatively recent times (and certainly long after Redpath, Knight and Flannery) that there has been any serious discussion in the courts as to whether, in order to be admissible, evidence of distress must be explicable solely on the basis that the crime alleged in fact occurred.

58 In R v Gulliford,[28] Wood CJ at CL dealt with a ground of appeal complaining of the lack of any direction as to evidence of the complainant's distress. His Honour said that the 'distressed condition of a complainant can, depending upon the circumstances, amount to corroboration.' Before it can have that effect, however:

it must implicate the accused and must be reasonably explicable only on the basis of the sexual assault having occurred, not being something that was due to imagination or some other unrelated event.[29]

59 Interestingly, this statement of principle was expressed in 'corroboration' terms, although Gulliford itself was decided in 2004, long after the UEL came into force in New South Wales. Of course, the UEL expressly abolishes any requirement for a corroboration warning in relation to sexual offences. Section 164 is, in both New South Wales and Victoria, as follows:

(1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:

• (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or
• (b) give a direction relating to the absence of corroboration.

60 Gulliford was recently cited with approval by the Western Australian Court of Appeal in Narkle v State of Western Australia.[30] There, it was submitted that the trial judge had erred in failing to direct himself (in a trial by judge alone) as to the permissible use of distress evidence, and particularly to the possibility that the complainant's distress might not have been referable to the alleged rapes and indecent assaults. It might, for example, have related to the fact of his being homeless. Buss JA (with whom McLure P and Hall J agreed)said:

In a sexual penetration without consent or an unlawful and indecent assault case, the complainant's distressed condition can, depending on the circumstances, constitute corroboration. However, before it can have that effect, the complainant's distressed condition must implicate the accused. It must be reasonably explicable only on the basis of the alleged sexual penetration without consent or unlawful and indecent assault having occurred.[31]

61 Buss JA considered that the judge below had not used the evidence of distress either as evidence capable of corroboration or as evidence bolstering the complainant's credibility. Further, he had been well aware of the complainant's homeless status. In those circumstances, there was no need for that judge to have directed himself specifically as to the use of and dangers associated with distress evidence.

62 Buss JA also cited with approval R v Brdarovski,[32] a decision of this Court. There, the appellant had been tried on one count of rape. That was the sole count on the presentment. One ground of appeal asserted that the trial had been unfair due to the weight of comments the trial judge had made in favour of the prosecution case. An aspect of that ground concerned the trial judge's emphasis on the distress evidence of the complainant. Nettle JA (with whom Ashley JA and Coldrey AJA agreed), in allowing the appeal, said:

In my view there is force in the counsel's criticisms of the way in which the judge dealt in those comments with the evidence of distress. Although evidence of distress is capable of corroborating a complainant's testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations. The need for such a warning is also likely to increase where, as here, the observation of the complainant's distressed condition is made at some time after the incident, is equivocal and could have been the result of incidents which did not form part of the charge.[33]

63 Another decision of this Court which dealt in more detail with the question whether distress evidence need be referable to the incident in question (or to a particular charge on an indictment) was R v Rogers.[34]

64 In that case, the appellant had been convicted on one charge of rape. Two grounds of appeal related to distress evidence. It was contended that the judge had erred in admitting the evidence, and in failing to direct the jury that it was of little weight. The relevant evidence was led from a neighbour of the complainant, the complainant's mother, and a police officer who had attended the scene. The complainant's mother had received a telephone call from her following the incident, during which the complainant was crying and sounded upset. The police officer also said that the complainant appeared to be upset. The neighbour said that the complainant was crying and appeared distraught.

65 The appellant submitted that the evidence was equivocal. Her distress could simply have been the result of her not knowing what had happened, rather than being referable to any sexual penetration.

I do not consider that the evidence was equivocal. The complainant appeared to be upset on waking and being confronted with clear evidence that the applicant had had sexual intercourse with her, which she maintained was without her consent. The existence of another explanation for the complainant's distress did not render the evidence inadmissible. As Duggan J said in R v Mitrovic:

Evidence of distress was not rendered inadmissible simply because of competing theories as to its cause.[35]

67 Nettle JA agreed with Buchanan JA, but added the following regarding the admissibility of distress evidence:

As to the question of admissibility, I take the law to be that, if it were reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant, the evidence of distress was capable of constituting corroboration and thus, subject to the overriding discretion to exclude it on the basis that its prejudicial effect exceeded its probative value, the evidence was properly to be left to the jury as capable of corroborating the complainant's testimony. Here, in my view, there can be no doubt that it was open to infer that the complainant's distress was causally connected to the alleged rape.

The question of what, if any, weight was then to be given to the evidence was a matter for the jury; although, as has been observed, it has been held in this State and in some other States that, except in special circumstances, juries should be warned that evidence of distress will carry little weight.

As has been observed, the judge in this case did not direct the jury in those precise terms, but instead told them that they could not treat the evidence as corroborative of the complainant's testimony unless satisfied that it was the only inference reasonably open on the evidence. If anything, however, that direction was too favourable to the applicant.[36]

68 Redlich JA agreed with both Buchanan and Nettle JJA.

69 The reference to distress evidence being admissible if it is 'reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant' appears to be in accord with the approach generally taken to circumstantial evidence and the drawing of inferences.[37] However, it should be noted that Rogers, too, used the language of corroboration, as it related to a pre-UEL trial. It should also be noted that Rogers was a case where there had been only one count on the presentment.

70 Although another Western Australian case, and not, of course, subject to the UEL, Azarian v State of Western Australia[38] is useful in establishing that distress evidence is a species of circumstantial evidence, and in explaining its (seemingly frequent) use as evidence to 'bolster' the complainant's credibility. There, Pullin JA said:

In my opinion, the trial Judge correctly directed in accordance with law that the jury had to be satisfied that the complainant was in a distressed state, that it was genuine and that it was as a result of the sexual assault, in which case the jury could take the evidence into account as 'bolstering' the complainant's credibility. It would have been preferable if his Honour had said that the evidence of distress could, in those circumstances, corroborate the complainant's testimony that there had been sexual penetration without her consent. In other words it was circumstantial evidence which helped prove the charges. However, the word 'bolster' is similar in meaning to 'corroborate' and the Judge added (correctly in my view) that if the complainant's condition could reasonably be attributable to some other cause, such as remorse derived from consensual sexual behaviour which she later regretted, then the complainant's distressed condition would not 'bolster her credibility'. In effect this was a Shepherd direction concerning the circumstantial evidence, ie that the jury had to consider whether the evidence of a distressed condition should only be treated as corroborative evidence if there is no other reasonable explanation consistent with innocence.[39]

71 We note that, in the present case, a 'credibility bolstering' use of the evidence was left to the jury in the following part of his Honour's charge:

The prosecution says that there are other aspects of the evidence that support her. The extent of the injury, for instance, fits her version of it not being a slap or two but rather something more than that. So, too, her distress when she sees the young girls when she comes out of the house, this provides support. There is other evidence, the telephone calls, and these all show to you that she is a reliable and honest witness. The Crown says essentially on any analysis of her evidence and the other evidence that you pull together, you would remain confident that she told you the truth and you could accept, and you should accept, her evidence beyond reasonable doubt.[40]

72 Once distress evidence is seen as a type of circumstantial evidence, which it plainly is, and it is also seen that it can be described as 'post-offence conduct' (albeit on the part of the victim), then it should, logically, be subject to the same rules that govern 'post-offence conduct' of the accused.

73 At one time, the question of 'intractable neutrality' loomed large in relation to post-offence conduct.

74 In R v Heyes,[41] the appellant had been convicted of murder. His appeal against conviction succeeded on the basis that certain lies that he had told after he had allegedly committed the offence were equally consistent with both murder and manslaughter. They could not, therefore, be probative of which of those crimes he had in fact committed. Buchanan JA, with whom Vincent JA agreed, said:

Where the issue is whether the accused performed acts leading to the death of another with an intent to kill or inflict really serious injury on the one hand or merely performed an unlawful and dangerous act on the other hand, evidence of lies will usually be of no help in resolving the issue. There is an explanation for the lies which is consistent with the conduct of a person who is innocent of murder, an explanation which, without more, cannot be rejected. The accused may have lied because he was conscious of his guilt of performing an unlawful act which caused death.[42]

75 Charles JA, however, reached a somewhat different view as to the use that could properly be made of the post-offence conduct. His Honour said:

But in my view (and to this extent I am in the minority) the jury should also have been told that they were entitled to consider the evidence as a whole, that is the nature of the applicant's actions in his attack on the deceased, as well as his lies and post-offence conduct in deciding whether they were satisfied beyond reasonable doubt of his guilt of murder, to the extent to which they regarded his conduct in the attack and his actions afterwards as disproportionate to the lesser level of culpability put forward in his defence.[43]

76 The question whether Heyes had been correctly decided was subsequently determined by a specially constituted bench of five judges in R v Ciantar.[44] There, the issue was whether the appellant's flight from the scene of a motor vehicle collision could be used as evidence of consciousness of guilt of culpable driving causing death, or whether the evidence should be viewed as neutral, and as being equally consistent with the hypothesis that the appellant was conscious of having committed some lesser offence, such as failing to render assistance.

77 In Ciantar, Heyes was specifically overruled. Warren CJ, Chernov, Nettle, Neave and Redlich JJA said:

We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases. And, to the extent that Heyes implies the contrary, in our view it should not be followed.[45]

78 Subsequently, in Butler v The Queen,[46] the same issue arose, albeit in the context of a trial for murder. There, the issue was whether the post-offence conduct on the part of the accused pointed sufficiently towards his guilt of murder, as distinct from manslaughter. It was held that the evidence, viewed in its entirety, was not 'intractably neutral', but was capable of being regarded by the jury as indicating consciousness of guilt of murder.

79 As with lies and other post-offence conduct, evidence of distress is circumstantial. One should not lose sight of how circumstantial evidence generally acquires its probative force. It is the totality of the circumstantial evidence which must be considered. As Dawson J stated in Shepherd, 'the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.'[47] This was again emphasised in the joint judgment of Gummow, Hayne and Crennan JJ in Hillier[48] who observed that in a circumstantial case it is often the case that

there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. ... As Gibbs CJ and Mason J said in Chamberlain [No 2]: ... 'the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence.'[49]

80 The jury should not reject one piece of circumstantial evidence because, considered alone, no inference of guilt can be drawn from it. A chain of circumstances may in combination implicate the accused, notwithstanding that any one link in the chain would not.

81 In Brooks v The Queen,[50] Weinberg JA considered the authorities, including Ciantar and Butler. He emphasised that, because post-offence conduct was a type of circumstantial evidence, it had to be looked at against the totality of the evidence as a whole.[51] He said after quoting the above passage from Hillier:

Post-offence conduct is, of course, nothing more than a species of circumstantial evidence.

Returning to the facts of the present case, the 'big lie' must be 'considered in the context of all of the evidence'. When viewed merely as one item of evidence amongst several which might have been used as the basis of an inference of murderous intent, it cannot be said that the 'big lie' was intractably neutral. It had to be considered in the context of other evidence including the severity of the wound inflicted, the relationship evidence, and the appellant's statements to his neighbours and police immediately following Ms Chapple's death. Having regard to the 'whole of the material', as the jury were instructed to do by the trial judge, the 'big lie' was significantly more probative of murderous intent than of some lesser intent.[52]

82 Whether evidence is really intractably neutral must be assessed by reference to the cumulation of circumstantial evidence. The jury was not required to consider the circumstantial evidence of distress in isolation.

83 The only significant difference between distress and 'consciousness of guilt', from the point of view of 'intractable neutrality', is that the former involves conduct on the part of the accused, whereas the latter involves conduct on the part of the victim.

84 In R v Taylor,[53] this Court adopted the language of 'intractable neutrality' in commenting upon distress evidence in sexual assault cases. Winneke P said:

The applicant submits that the evidence which was left to the jury was "intractably neutral" in the sense that it could not be regarded as more consistent with guilt than with innocence. In those circumstances, it was submitted, it was incapable of amounting to supportive evidence. For my own part, I do not regard the evidence to be "intractably neutral" whatever that may mean. If it means evidence that can never be regarded by the jury as confirming the complainant's evidence, then I do not believe that this evidence falls into that category. The mere fact that it might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration. There can be no doubt that circumstantial facts can combine to provide evidence supportive of that of the person required to be corroborated, in as much as they may amount to circumstances leading to an inference that it was probable that advantage would be taken of an opportunity presented, or to show that the misconduct alleged was probable. For example, evidence of distress , or injury to, or torn clothing of a girl complaining of having been raped is often left to juries as evidence capable of providing corroboration even though it is equivocal per se. That, of course, does not mean that the evidence is not capable of being corroborative; all it means is that it is a question for the jury to determine whether it is corroborative or not. That, as it seems to me, is the essence of this case. The evidence does not cease to be capable of being corroborative or confirmatory by reason only of the fact that it is not independent evidence "unequivocally referable" to the commission of the crime.[54]

85 In R v Ferguson,[55] decided after Ciantar, the Court said:

Some evidence is characterised as ' intractably neutral ' and therefore incapable in law of amounting to corroboration. However, evidence is not ' intractably neutral ' merely because it can be regarded as supporting competing hypotheses. It is a matter for the jury, properly instructed, to determine whether the hypothesis for which the Crown contends should be accepted. And merely because the accused suggests that some particular fact is not in issue does not render it 'neutral' in the sense described.[56]

86 Returning to the facts of the present case, the trial judge clearly directed the jury that it was a matter for them to decide whether the hypothesis for which the Crown contended should be accepted. He said:

The prosecution relies on [the distress evidence] as tending to support her account. That is, that what happened to her was the - not just the punching and the assault but it was penetration of her. That is what happened, not just touching her in the way that Mr Flora described, but her distress is - you can look to the way she was distressed as tending to support that that is in fact what happened. Before you could use that evidence of distress you have to be satisfied that she was in fact distressed. You would have to keep in mind that what Mr Flora says in his interview was that she was carrying on like a drama queen, I think in his interview he says that, and so you would have to be satisfied that she was in fact distressed and not just stacking it on.

You should also consider whether her distress could have been caused by something other than the alleged offending and Mr Flora in his interview says that she seemed to be upset by him going towards the e-mail or the computer. But the prosecution argues the distress fits with someone or something serious like the sexual penetration rather than anything else but it is of course a matter for you to decide how much weight if any you would give to the evidence of her distress... You may give it what weight that you think it deserves and how it assists you. Of course if someone is distressed well after the event and that might be given less weight but here the evidence is that she runs out into the street as you know what the evidence says. ... It is really about what was observed by the two young girls as she came outside and as things developed through that time in the street, her returning back when the car was not there and then coming back to the garage and he coming to the garage and the phone calls and them telling her not to answer and so on and so forth. Consider all of that. [57]

87 It was submitted on behalf of the appellant that, in this case, the evidence of distress might be explained by the fact that the complainant had been assaulted, rather than raped. Another possibility was that the distress might be attributable to an indecent assault, rather than rape. Of course, the appellant, by his own admission, had struck the complainant more than once to the head.[58] He also admitted having touched her vagina, though he denied penetration.[59]

88 The question for this Court is whether it was properly open to the jury to find that the level of distress that the complainant evinced was such that it suggested rape, rather than either of the two lesser offences.

89 In our view, the jury were entitled to use their experience, and their common sense, in evaluating this evidence. It was open to them to conclude that the evidence given by CR's neighbours as to her physical appearance, and her emotional state, was consistent with her having been raped, rather than merely slapped or indecently assaulted. The history of CR's relationship with the appellant suggested that she would not have responded, as she did, to what the appellant described as merely several 'slaps' to her face. The same could be said of her response to his having touched her vagina without her consent. Her level of distress might be thought to have been far more profound than such conduct would warrant.

90 As recognised in Ciantar, there will be few cases where evidence is truly 'intractably neutral'.[60] As there are always degrees of distress, and a jury is in a position to assess whether the distress is of such a severity as to match the crime alleged, it might only be very rarely that distress evidence is 'intractably neutral'.

91 There might, in some cases, only be a fine line between, in particular, indecent assault and rape and the different levels of distress those crimes are likely to cause. However, it is a matter that can rationally be considered by the jury, subject to appropriate direction.

92 In so far as it is said that his Honour should have directed the jury that the evidence of distress should be given little or no weight, we reject that submission. Each case must depend upon its own particular facts. Here, the circumstances were such that the jury were well entitled to treat the complainant's obvious and genuine distress as supporting her account of what had occurred.

93 If that is not sufficient to dispose of the point, we would note simply that no request was made for any such direction. Moreover, no exception was taken to his Honour's charge in relation to this matter.

95 Were it not for the lengthy and largely unexplained delay that occurred between the date of the offending, and the trial of this matter (nearly three and a half years), we would have said that this sentence was stern, but within range. This was clearly a serious example of what is always a serious offence. The appellant's behaviour was reprehensible, and his moral culpability was high.

96 Balanced to some extent against those factors were his prior good character, and the finding below that he had good prospects of rehabilitation.[61] Far and away the most important mitigating factor, however, was the delay that had occurred.

97 The relevance of delay in the proper exercise of the sentencing discretion was noted by this Court in R v Merrett.[62] There, Maxwell P, with whom Chernov JA and Habersberger AJA agreed, said:

On a proper analysis, however, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable. But the absence of an explanation for the delay could not, by itself, justify any greater reduction in the sentence than would be made in a case where the delay was satisfactorily explained.

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes "a powerful mitigating factor". In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:

... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

... The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.

As Vincent AJA pointed out in R v Schwabegger a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion. His Honour cited the well-known passage from R v Todd where Street CJ explained what fairness required in these circumstances:

... Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of lenience being extended to the prisoner.

These principles as to the relevance of delay were restated and applied by Chernov JA in R v Cockerell, and were applied again, recently, by this court in R v Tiburcy.[63]

98 As noted earlier, the offences of which the appellant was convicted took place on 1 July 2008. For whatever reason, his trial did not begin until late November 2011. He therefore had this matter hanging over his head for well over three years, an inordinate period of time. A delay of that order constituted a powerful mitigating factor. His Honour was, in our respectful opinion, in error in stating that the 'course the matter [had] taken to the courts [did not] provide much by way of mitigation'.[64]

99 The median sentence for rape in this State is five years' imprisonment.[65] The appellant was sentenced to six years' imprisonment for this particular rape. Given the significant mitigating factors that were present, we can see no justification for that outcome.

100 We would allow the appeal against sentence. We would set aside the sentence imposed on count 3. In lieu thereof, we would impose a sentence of five years for that offence. We would not interfere with the sentence of eight months imposed on count 2, which was, in our opinion, fully justified. We would make two months of that sentence cumulative upon the sentence imposed on count 3. That would result in a total effective sentence of five years and two months. We would fix a non-parole period of three years.

[1] DPP v Flora (Unreported, 14 December 2011, Judge Mullally) [13].

[2] Record of Interview, 1 July 2008, 12, 33.

[5] See generally Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610, 625 (French CJ, Hayne, Crennan and Kiefel JJ).

[6] See generally James v The Queen [2013] VSCA 55, [13] (Maxwell P).

[8] The trial judge adjourned briefly so that counsel was able to discuss the matter with his client.

[11] The issue on count 3 was whether penetration had occurred. The appellant had admitted to touching the complainant's vagina. At trial, his counsel acknowledged that indecent assault was open if the jury accepted the appellant's version of events, and rejected that of the complainant. The trial judge noted that the accused did not positively suggest in his record of interview that the complainant had consented to his touching her. The question of the appellant's state of mind as to whether the complainant was consenting was said to be a 'live issue', particularly in the context of the relationship and the history of 'checking out' the other.

[12] [1969] VicRp 72; [1969] VR 586 ('Flannery').

[14] (1962) 46 Cr App R 319 ('Redpath').

[16] [1966] 1 WLR 230 ('Knight').

[19] (1977) 17 SASR 460.

[23] [1983] 1 Qd R 89.

[25] See, eg, Eades v The Queen [2001] WASCA 329; Azarian v State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19.

[26] [2011] WASCA 147; [2011] 41 WAR 524.

[28] [2004] NSWCCA 338; (2004) 148 A Crim R 558 (New South Wales Court of Criminal Appeal) ('Gulliford').

[30] [2011] WASCA 160.

[32] [2006] VSCA 231; (2006) 166 A Crim R 366.

[34] [2008] VSCA 125.

[36] Ibid [18]-[20] (citations omitted).

[37] See generally Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 ('Shepherd'); R v Hillier [2007] HCA 13; (2007) 228 CLR 618 ('Hillier').

[38] [2007] WASCA 249.

[41] [2006] VSCA 86; (2006) 12 VR 401 ('Heyes').

[44] [2006] VSCA 263; (2006) 16 VR 26 ('Ciantar')

[46] (2011) 216 A Crim R 215.

[47] [1990] HCA 56; (1990) 170 CLR 573, 580.

[48] [2007] HCA 13; (2007) 228 CLR 618.

[50] [2012] VSCA 197 ('Brooks').

[51] Ibid [67]-[69]. See also Zhu v The Queen [2013] VSCA 102, [40] (Redlich JA and Kaye AJA).

[52] Brooks [2012] VSCA 197, [68]-[69] (citations omitted).

[53] [2004] VSCA 98.

[55] [2009] VSCA 198; (2009) 24 VR 531.

[56] Ibid 559-60 (Maxwell P, Buchanan and Weinberg JJA).

[60] Ciantar [2006] VSCA 263; (2006) 16 VR 26, 39.

[61] DPP v Flora (Unreported, 14 December 2011, Judge Mullally) [36].

[62] [2007] VSCA 1; (2007) 14 VR 392.

[64] DPP v Flora (Unreported, 14 December 2011, Judge Mullally) [34].

[65] Namely five years' imprisonment: see DPP v Werry [2012] VSCA 208.