Gul v The Queen [2017] VSCA 153

Court of Appeal (Vic)|2017-06-22|Before: Mr P, Ashley JA, Priest JA

DPP v Gul (Unreported, County Court of Victoria, Judge Chettle, 31 May 2016 (Conviction))

CRIMINAL LAW - Conviction - Application for leave to appeal - Rape and associated offences - Directed verdicts of acquittal on charges of rape and compelling sexual penetration - Whether judge erred in failing to instruct on use of evidence relating to charges subject of directed acquittal when considering remaining charges - Other misconduct evidence - Failure to give anti-propensity reasoning direction - No substantial and compelling reason to give direction - , - Whether judge erred in not discharging jury following entries of acquittal - Whether directions on mental element of offences and consent adequate - Leave to appeal refused.

1 Following a trial in the County Court, on 31 May 2016 a jury convicted the applicant of indecent assault[1] (charge 3), rape[2] (charge 4) and making a threat to kill[3] (charge 5). In circumstances that we will later discuss, the judge directed the jury to acquit the applicant of rape (charge 1) and compelling sexual penetration (charge 2).[4]

2 On 20 July 2016, the applicant was sentenced to a total effective sentence of five years and nine months' imprisonment, with a non-parole period of three years.[5]

3 Originally, the applicant sought leave to appeal on two grounds as follows:

The Learned Trial Judge erred by failing to instruct the jury concerning the use to which the evidence on charges 1 and 2 could be put.
The Learned Trial Judge erred by failing to discharge the jury, pursuant to section 241(2) of the Criminal Procedure Act 2009 (Vic), once the jury returned a verdict of not guilty on charges 1 and 2 by direction.

4 In the course of the hearing in this Court, counsel sought to amend grounds 1 and 2 (so as to reformulate them as set out below), and to add a new ground, ground 3:

The Learned Trial Judge erred by failing to instruct the jury concerning the use to which the evidence on charges 1 and 2 could be put;

(a) His Honour failed to give an 'anti-propensity' warning;

(b) His Honour failed to direct that the evidence on charges 1 and 2 could constitute no more than context evidence when considering charges 3, 4 and 5.

The Learned Trial Judge erred by failing to discharge the jury, pursuant to section 241(2) of the Criminal Procedure Act 2009 (Vic), once the jury returned a verdict of not guilty on charges 1 and 2 by direction once his Honour ruled that there was no case to answer on charges 1 and 2.
The Learned Trial Judge erred by failing to adequately instruct the jury on two elements of Counts 1 - 4 (consent and the mental element).

5 For reasons that follow, we would refuse leave to amend grounds 1 and 2, and to add ground 3, and would refuse leave to appeal.

6 It is necessary to summarise the evidence in the trial.

7 'MB', the complainant, gave evidence that she met the applicant in August 2013, when she visited a club at which the applicant was employed as a 'bouncer'. They enjoyed a relationship from August 2013 until early January 2014, when they broke up. Thereafter, MB spent time with the applicant in March, April and August 2014.

8 On Monday, 18 August 2014, MB went to the applicant's house, where they 'were hanging out with each other and smoking ice'. MB said that during that Monday she smoked ice 'probably every hour', but that the applicant 'was using more'. The two conversed and had 'intercourse' in the applicant's bedroom, and 'it was fine', MB having 'no issue at that point of time'.

9 The next day, Tuesday, MB remained with the applicant, and they used ice 'every hour'. MB said everything 'was fine until Tuesday afternoon', when 'things became aggressive' and the applicant accused her of 'cheating'. The applicant slapped MB across the face and then put his arm around her neck, threatening to break it.

10 MB and the applicant went out on Tuesday night and returned at about 1.00 am on Wednesday, 20 August 2014.[6] In the early hours, they 'started arguing and fighting again'. The applicant accused MB of cheating, called her a 'fucking slut' and spat twice in her face. MB 'got really angry' and spat back, into the applicant's face. She apologised, however, after the applicant told her to leave his house. The applicant then said he was going to have a shower.

11 After the applicant showered, he and MB were having sexual intercourse on the applicant's bed until he became aware she was menstruating, said 'Ew, yuck' and 'got off' MB. She then went to the ensuite bathroom to clean herself.

12 When MB returned to the bedroom, and whilst she was on her back on the bed, the applicant put his legs either side of her shoulders and put his penis in MB's mouth. She was 'okay at this point', but the applicant then said, 'Lick my arse, bitch, this is payback', and put his 'bottom' on MB's face. MB moved to the lower part of the bed, and, after the applicant put her face down on her stomach, he turned her arm around and put two of her fingers into her anus (charge 2) as well as his own (charge 1). When asked by the prosecutor whether she consented to the applicant putting his finger in her bottom, to the prosecutor's apparent surprise, MB said that she did. She said 'that was fine', but that she objected when the applicant wiped her fingers on her face.[7] MB said, 'Yuck, don't' and 'No, stop'.

13 We pause to note that, given MB's apparent acceptance that the activities founding charges 1 and 2 occurred with her consent, and that she only objected to what was occurring after the applicant wiped her fingers on her face, at the end of the prosecution case the judge told the jury that he would be directing them to return verdicts of not guilty on those charges when they delivered verdicts on the charges that were still 'live'.

14 Returning to the evidence, MB said that after the applicant wiped her fingers on her cheek, the applicant then grabbed her by the hair and pulled her into the bathroom. She gave the following evidence with respect to charge 3, indecent assault:

[PROSECUTOR]: And then what happened?---And then he said, 'Look in the mirror', and, 'You fucking prostitute', as he was holding my hair, and then he pushed my head downwards towards his arse, and said, 'Lick my arsehole'.

Where did your head end up in relation to his body?---I'm at his bottom.

Is he still holding on to you?---Yes.

On to your hair?---Yes.

And how did that feel then, him holding on to your hair?---It was very scary. I was really scared.

And so he said to, 'Lick my arsehole'?---Yes.

What did you do?---I did.

And why did you do that?---Because of the way he held my hair very tightly.

Is that something that you wanted to do?---No.

15 With respect to charge 4, rape, MB's evidence continued:

[PROSECUTOR]: Then what's the next thing that has happened?---And then he pulled me up by my hair, pushed me on to the wall ... with my back towards him on the wall, next to the sink.

Do you remember, were you saying anything at this time, do you know, if you remember?---'Stop. I don't want to do this', and I just kept crying.

So you said before that you were crying when you went into the ensuite?---Yes.

Were you crying that whole time?---Yes.

And then what has happened?---And then, as he had me up against the wall, he stuck his penis in my arse.

And where did his penis go exactly?---Into my arsehole.

Is that something you wanted to happen?---No.

Did you agree to that happening?---No.

Do you remember if you were saying anything at the time that he did that? I just think I kept crying in a loud kind of way, and he just said, 'Shoosh. My parents will hear you'.

Where were his hands when he was doing this? What was he doing with his hands?---He had one hand holding my hair tightly, and then I'm not quite sure where his other hand was.

So he has put his penis into your anus. What did he do?---It went for - I don't know - around 30 seconds. He ejaculated, and then he stopped. He let go of my hair.

16 MB gave the following evidence in support of charge 5, making a threat to kill, which is also relevant to the proposed additional ground 3:[8]

[PROSECUTOR]: So he has ejaculated. Then what did he do?---Then he walked out of the ensuite, and I sat on the toilet. I think he puts his pants on and walked out of his bedroom.

How long did you stay in that ensuite for?---A good ten minutes - five minutes.

Then what did you do?---Actually, when he went out of the room, I quickly put my clothes on and had my bag next to me. He came back into the room and was like, 'You're not going', and I was like, 'You - you just raped me. I am going'.

Did he say something in response to that?---Yeah. He said, 'Don't play games, [complainant's name]. As if. You wanted it. If you tell anyone about this, I will get a Asian [sic] to come murder your fucking parents'.

How did you react to that comment of his?---I was in complete shock.

What happened then?---Then he laid on his bed and passed out, and I ran out the door.

17 MB said that she drove away from the applicant's house and contacted her friend, 'GG', to tell her about the sexual assault. They then went to the police station to lodge a report, and MB was taken to the Royal Women's Hospital for a medical examination.

18 GG gave evidence that MB contacted her at about 9.00 am on Wednesday. MB 'said that [the applicant] had raped her anally and also forced her to lick his anus, and she also said that he had not let her leave afterwards'. They then went to the police station in the city to report the matter.

19 The complainant reported the incident to police shortly after. Police arrested the applicant on 21 August 2014. He effectively gave a 'no comment' interview.

20 As will become clear, it is of some significance that the defence went to the jury on the basis that the charged acts did not occur. The principal issue in the trial was whether MB could be believed. Although it was not contested that the applicant and MB had indulged in consensual sexual activity (including anal sex) at the applicant's home in the time that they spent together before the Wednesday, the defence case was a denial that the charged activity ever took place. The defence case thus chiefly consisted of an attack on MB's credibility. It was argued that the complainant's description of details, and lack of injuries on her body consistent with the allegations, made it almost impossible for the jury to believe that events described by MB could have occurred. At no stage was it ever contended that any of the charged activity may have occurred but that it was consensual or that the applicant may have believed that it was consensual.

21 Indeed, that the real issue in the trial was whether MB's evidence could be accepted is plain from the judge's charge. Early in his charge, he told the jury:

The real issue in this trial can be summarised in one sentence: Are you satisfied beyond reasonable doubt that what [MB] told you about in relation to Charges 3, 4 and 5 occurred? I will come back to that later, but that is really the ultimate question for you. Did the conduct that she alleged occurred [sic] in relation to Charges 3, 4 and 5?

23 It is convenient to deal first with proposed ground 3, which, in our view, cannot be upheld.

24 As we have said, the defence case was that the charged activity did not occur. At no stage were either MB's consent, or the applicant's belief in consent, with respect to the charged activities ever put in issue by the defence.

25 During the course of oral argument in this Court, however, Croucher AJA raised with counsel for the applicant whether the applicant's belief in consent should not have been left to the jury, given MB's evidence[9] that, after she accused the applicant of raping her, the applicant said: 'Don't play games, [complainant's name]. As if. You wanted it. If you tell anyone about this, I will get a Asian [sic] to come murder your fucking parents'.

26 Counsel for the applicant was thus prompted to seek to add what is now proposed ground 3. The Court indicated that it would consider the application. Leave was given to the parties to file further written submissions on the topic.

27 In the course of those further written submissions, although he accepted that trial counsel opened to the jury on the basis that 'these things did not happen', and he acknowledged that trial counsel at no stage sought a direction on consent or belief in consent, counsel for the applicant nonetheless contended that the judge should have directed on the applicant's belief in consent: first, because of MB's 'dramatic admission' that she consented to the digital penetrations which were the subject of charges 1 and 2; and, secondly, because of the evidence given by MB of the applicant's statements immediately after she accused him of rape,[10] which, so it was argued, 'raised the rational possibility, capable of acceptance by a properly directed jury, that the [applicant] positively believed in consent'.

29 As we have mentioned,[11] early in the charge the judge told the jury what the 'real issue' was. Later, when directing on the elements of indecent assault, the judge instructed the jury:[12]

As to the fifth element, that is [the applicant's] mental state. You would have to find that he was aware that [MB] was not consenting or may not be consenting or did not give any thought to as to whether she was consenting or not, and you would look at the surrounding circumstances, drawing an inference, as I said to you, in relation to that element.

Now, I could spend much more time going through each of those elements. I do not need to because it is common ground that if the events occurred each of the elements have been established. It is not a question of whether as a matter of law what he did constituted an indecent assault, the issue is whether or not you are satisfied beyond reasonable doubt that it actually happened, that is, whether you accept [MB's] evidence that it happened.

30 And when directing on the elements of rape, the judge said:

To prove this crime, the prosecution must prove four elements beyond reasonable doubt: [first], the accused man sexually penetrated the complainant in the way alleged; [secondly], the accused did this intentionally; thirdly, the complainant, [MB], did not consent to the sexual penetration; and fourthly, the accused had one of the following three states of mind about her consent - he was aware that she was not consenting, or was aware that she might not be consenting, or did not give any thought as to whether she was or was not consenting. Any of those three states of mind must be established.

Now again, there was no suggestion to you that if this happened, the offence of rape was not made out. Indeed, the cross-examination was to the point it did not happen. As simple as that. But you need to be aware of what the prosecution have to prove in any case is the elements of the offence. And you need to be satisfied beyond reasonable doubt that each of those four elements have been established.

32 Division 1 of Part 5 of the Jury Directions Act 2015 (ss 45 to 48) now prescribes the directions that must be given to a jury on consent and reasonable belief in consent in a trial for offences such as those charged in the present case. It came into operation on 1 July 2015, but, as Schedule 1 of the Act makes clear, it only 'applies to a proceeding that relates to a charge for an offence alleged to have been committed on or after the commencement of that Division'. Since the applicant's alleged offending occurred on 20 August 2014, the present suite of provisions in Division 1 of Part 5 had no application.

33 In the applicant's further written submissions, it was contended with respect to charges 3 and 4 that the trial judge 'should not have removed the issues of consent and of the mental element from genuine consideration', and that 'the trial judge 'should have charged on these topics in accordance with ss 37(1), 37AA and 37AAA, and with reference to the relevant evidence'.

34 By the time of the applicant's trial, however, ss 37, 37AAA and 37AA of the Crimes Act 1958 - which set out the jury directions required as to a complainant's consent and an accused person's belief in consent in trials for rape and indecent assault (and other sexual offences) - had been repealed by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, s 7(3).

35 Assuming - without, however, deciding - that ss 37, 37AAA and 37AA continued to have application at the time of the applicant's trial, they do not avail the applicant.

36 Section 37AAA set out the directions required on consent, and s 37AA prescribed the directions required with respect to an accused's belief in consent. But it is plain that the directions on consent and belief in consent only needed to be given if those matters were relevant to facts in issue in the proceeding. So much flows from s 37, which provided:[13]

37 Jury directions

(1) If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA.

(2) A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding.

(3) A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to -

(a) the facts in issue in the proceeding; and

(b) the elements of the offence being tried in respect of which the direction is given -

so as to aid the jury's comprehension of the direction.

37 The reference to facts in issue in s 37 to is not an allusion to the elements of the particular offences or the 'ultimate' issues. As was made clear in Yusuf[14] (with respect to the forerunner of the iteration of s 37 now under consideration), the facts in issue referred to in the section are 'the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence'.[15] It is only on those facts that a judge is required to give directions.

38 In a similar vein, it was observed in Alford v Magee:[16]

And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.

39 In the present case, the applicant's belief in consent simply was not a fact in issue in the trial. The defence case on each of charges 3 and 4 was that the relevant activity did not occur. Nothing in ss 37, 37AAA or 37AA - assuming they were applicable - required a direction to be given on the applicant's belief in consent because it was not a fact in issue.

40 Moreover, it will be remembered that s 11(b)(i) of the Jury Directions Act 2015 placed an onus on defence counsel to inform the trial judge whether each element of the offence charged - which for the purposes of charges 3 and 4 would embrace the applicant's belief in MB's consent - was or was not 'in issue'. And s 12 placed an onus on defence counsel to request directions on 'the matters in issue' and 'the evidence in the trial relevant to the matters in issue'. At no time, however, did the applicant's trial counsel inform the judge that belief in consent was in issue, let alone request any direction on it (including on any evidence that may have related to it). Unequivocally and unmistakably, the defence case was that the charged activity did not occur. Thus, there were no 'substantial and compelling reasons' for giving a direction 'even though the direction has not been requested under section 12'.[17]

41 Finally, although not critical to our consideration of the proposed ground, we observe that minds might differ about whether the statement attributed to the applicant - 'Don't play games, [complainant's name]. As if. You wanted it. If you tell anyone about this, I will get a Asian [sic] to come murder your fucking parents' - was evidence capable of raising belief in consent. Much would depend on inflection, punctuation and context. To some minds, the applicant's threat to have an Asian come and murder the complainant's parents if she told anyone about what had occurred does not sit comfortably with an assertion that he may have believed the activity to be consensual.

42 Our analysis of the written submission filed in support of ground 3 leads us to the conclusion that the proposed ground is without substance. Leave to add it, so as to rely on it, must be refused.

Ground 1 - Failure to direct on the evidence relating to charges 1 and 2

43 Both before and after its proposed amendment, ground 1 had a narrow focus. It was concerned solely with asserted failures to direct on 'the use to which the evidence on charges 1 and 2 could be put', nothing else.

44 Under cover of ground 1(a) - the asserted failure to give an anti-propensity warning - the applicant's counsel submitted that although charges 1 and 2 resulted in verdicts of not guilty, the evidence on those charges 'involved evidence of a very prejudicial kind - unusual and confronting sexual behaviour, accompanied by vengeful, hostile and aggressive comments'. The prejudice consisted of the alleged acts themselves, which were 'confronting and unpleasant'; the 'brutish words and attitude which accompanied them'; and the use to which the prosecution sought to put them, so as to bolster MB's credit and to 'trace the alteration in relationship' between MB and the applicant.

45 In our view, the evidence which it is said should have attracted a warning is other misconduct evidence within the meaning of s 26 of the Jury Directions Act 2015, either because it was 'evidence of other discreditable acts ... of an accused that are not directly relevant to a fact in issue', or because it was 'evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed'.

46 Section 27(1) of the Act provides that defence counsel 'may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution'. If the judge fulfils defence counsel's request, s 27(2) provides that he or she must -

(a) identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and

(b) if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and

(c) direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.

47 Defence counsel sought no such direction, so that s 15 of the Act - which provides that 'the trial judge must not give the jury a direction that has not been requested under section 12' - was animated. Thus, by virtue of s 16(1), the trial judge could have given a direction on the other misconduct evidence only if he considered that there were 'substantial and compelling reasons for doing so'. We are unable to discern any substantial and compelling reasons for doing so, and indeed can think of sound forensic reasons why defence counsel might not have wanted any direction on the evidence.

48 Plainly, s 16 of the Act imposes a residual obligation on a trial judge to give a direction even though not requested by the parties. It is not, however, an obligation imposed in the abstract. A decision whether to give a direction must be taken paying due regard to the issues raised by the case and to the forensic decisions of counsel; and a direction not requested by the parties can only be given if the reasons for doing so are substantial and compelling. Although one must be careful of substituting for the statutory language, reasons will not be substantial and compelling unless they are of considerable importance and strongly persuasive in the context of the issues in the trial. Thus, for example, a trial judge might give a direction not asked for if he or she considered that the failure to seek a direction was borne of incompetence.

49 As we have said, the decision whether to give a direction in this case was to be considered not in the abstract, but having regard to the particular circumstances of the case. Those circumstances included the way in which the defence had fashioned its answer to the charges; that is, by denial that any of the conduct described in charges one to five had taken place. We are unable to discern any substantial and compelling reasons for the judge to give a direction under s 27(2). Indeed, having regard to the issue upon which applicant's counsel focussed at trial, we consider that there were sound forensic reasons why counsel did not seek any such direction on the particular evidence. There were no substantial and compelling reasons why his Honour should have introduced into the trial a direction which was incongruous with, and had the potential to undermine, the essential defence case.

50 In any event, we note that the trial judge warned the jury against deciding the case according to bias, prejudice or sympathy, or according to any 'emotional responses' borne of the context in which the alleged offences occurred, including 'unusual sexual activity, prolonged drug use, all of these factors'. Such directions were, in our view, sufficient to ameliorate any risk that the jury would act according to any prejudice engendered by the evidence on charges 1 and 2.

52 With respect to ground 1(b) - a claimed failure to direct that the evidence on charges 1 and 2 could constitute 'no more than context evidence' when considering charges 3, 4 and 5 - counsel for the applicant stated in written submissions that ground 1(b) was 'added following discussion at the hearing'. It was submitted that, given that both consent and belief in consent remained 'live' on the evidence - notwithstanding the defence position that the incidents founding charges 3 and 4 did not occur - the jury needed to be directed that the conduct associated with charges 1 and 2 (involving 'forced digital anal penetration in a coercive and disrespectful manner') 'was relevant only as context within which to assess whether [the applicant] believed he had consent'.

53 In light of the narrow focus of the argument in support of it, given our conclusions on proposed ground 3, and our further reasons with respect to ground 1(a), ground 1(b) cannot succeed.

54 No aspect of proposed ground 1 as amended can be upheld.

Ground 2 - Failure to discharge the jury after successful 'no case' submission

55 Counsel for the applicant submitted that the applicant 'suffered a significant forensic disadvantage as a result of the course of events surrounding charges 1 and 2'.[18] It was submitted that trial counsel set out to impugn the credibility and reliability of MB. A 'fruitful' line of cross-examination might have involved MB's previous statements that she had not consented to the activities founding charges 1 and 2. It was submitted that the alteration in her account as to consent was material to MB's reliability and credibility, yet trial counsel was hamstrung in his ability to cross-examine on these matters because charges 1 and 2 were not the subject of verdict until after all of the evidence closed. Counsel for the applicant submitted that the 'cure' was for the judge to have discharged the jury with respect to charges 3, 4 and 5, under ss 241(2) and (3) of the Criminal Procedure Act 2009.

56 The short answer to this ground is that trial counsel did not seek a discharge of the jury, in circumstances where there were sound forensic reasons for not doing so. Defence counsel may well have wished to take advantage of the fact that the complainant did not 'swear up' - the prosecutor had opened on the basis that MB would give evidence that the acts founding charges 1 and 2 were without her consent - as bearing specifically on MB's reliability and credibility, and on the strength (or lack thereof) of the prosecution. Furthermore, trial counsel may well have reasoned that it was unlikely that he would be able to replicate at a trial limited to charges 3, 4 and 5, the psychological and atmospheric advantage flowing from the jury being directed to return not guilty verdicts on charges 1 and 2 at the same time

that they had charges 3, 4 and 5 under consideration. It is impossible to know. But from the perspective of one experienced in criminal advocacy, it is possible to say that the decision not to seek discharge of the jury could be justified.

57 Although the ground as formulated claimed that the judge 'erred by failing to discharge the jury', Maric[19] and other cases make clear that the appeal is not against the failure to discharge, but against the conviction, so that the issue for determination is whether a substantial miscarriage of justice had occurred. For the reasons above, we are not persuaded that any miscarriage of justice (substantial or otherwise) was occasioned by the continuation of the trial after the judge had resolved to direct the jury to acquit the applicant on charges 1 and 2.

58 Leave to amend ground 2 should be refused, since the foreshadowed amended ground has no substance.

59 Leave to amend grounds 1 and 2, and to add ground 3, should be refused, as should the application for leave to appeal against conviction.

60 I have had the advantage of considering the joint judgment of Ashley and Priest JJA. While I agree with some aspects of their Honours' reasons, I disagree with others and with the orders they propose.

61 In my view, this trial went fundamentally wrong from the moment MB gave evidence that she consented to the alleged acts that formed the basis of Charges 1

and 2. While that evidence was a surprise to the prosecutor, and fatal to the Crown case on those charges, it was, perhaps perversely, also the catalyst for the trial ultimately to run off the rails. For at no point did counsel at either end of the bar table, or the judge, adequately grapple with the difficulties presented by that evidence or the immediately surrounding evidence of uncharged aggressive sexual behaviour.

62 On the contrary, as I shall endeavour to explain, in his final address, in what might be thought to be an ingenious - even heroic - but nevertheless flawed attempt to retrieve a faltering case, the prosecutor sought to turn to the Crown's advantage the evidence supporting and surrounding the impending acquittals. Unfortunately, that attempt included an invitation to engage in rank propensity (or tendency) reasoning. Alas, that error went uncorrected, as the judge failed to give any directions cautioning the jury against either that kind of misuse or as to the permissible use of the evidence. While defence counsel requested a direction on 'uncharged acts', the request, as put, was not as well-targeted as it might have been. Perhaps a more precise objection might have produced a different response. I think that is unlikely, however, given that it appears that the judge did not appreciate the prosecutor's error or the inadequacy of his own directions. The net result is that there has been a substantial miscarriage of justice necessitating the setting aside of the applicant's convictions and a direction for a new trial.[20]

63 More formally, I am satisfied that Grounds 1(a) and 1(b) have been made good but that Grounds 2 and 3 have not. Further, I am satisfied that there has been a substantial miscarriage of justice as a result of the errors disclosed in Grounds 1(a) and 1(b). I would grant leave to amend Grounds 1 and 2 and to add Ground 3, but uphold only Grounds 1(a) and 1(b), grant leave to appeal, allow the appeal, set aside the convictions and sentences on Charges 3, 4 and 5, and direct that there be a new trial on those charges.

65 Before dealing with the grounds of appeal, it is necessary to summarize the main parts of the evidence at trial, as well as the course of proceedings.

66 Ashley and Priest JJA have already summarized and extracted parts of MB's responses in evidence-in-chief, but not her evidence in cross-examination or re-examination. Given that there are other parts of her evidence-in-chief that I think it necessary to include, it will be more helpful, despite the repetition involved, if I summarize most of her evidence, from start to finish. I also consider it necessary to summarize the evidence of the other witnesses and the applicant's admissions of fact.

67 MB said that she and the applicant had previously been involved in a relationship from August 2013 to January 2014. At the time of these events, MB was aged 24 and the applicant was 32.

68 On Monday 18 August 2014, the applicant contacted MB and asked her to come to his home in Craigieburn, where he lived with his parents. MB agreed, and arrived at about 5:00 p.m. From that time until the Wednesday morning, 20 August 2014, the two were 'hanging out with each other and smoking ice'. MB said that she was smoking ice 'probably every hour' and that the applicant was 'using more'. Over that period, they also engaged in consensual sexual acts, including penile penetration of MB's vagina, anus and mouth.

69 On the Tuesday afternoon, the applicant's behaviour changed. He accused MB of cheating on him when they were in a relationship, and became aggressive. He slapped her across the face. Later, he put his arm around her neck and threatened to break it if she did not tell him that she had cheated on him.

70 Early on the Wednesday morning, they started arguing and fighting again. Again, the applicant accused MB of cheating on him. He called her a 'slut', spat on her face, twice, and said, 'How would you like it if I spat on your mum's grave? How would you like it if I fucked your friend in the arse?' MB became 'really angry' and spat back at him. The applicant then 'got really angry' and told her to leave his house. MB apologized. (She said she did not really want to go back home to her parents, as it was early in the morning and they would have been on their way to work.) The applicant said that was fine. He said he wanted to have a shower and go to sleep. He told her to go to sleep too.

71 After his shower, the applicant returned and laid next to MB on the bed. They started kissing and cuddling and then engaged in penile-vaginal intercourse. When the applicant discovered that MB was menstruating, he said, 'Yuck,' and intercourse ceased. MB went to the bathroom, wiped the blood away and put her underpants and pants back on.

72 When she returned, MB said, 'Let's not have sex.' The applicant then got up from the bed, pushed her back onto the bed and started to remove her pants and underpants in an aggressive fashion. She thought he was going to rip them, so she removed them herself. He placed himself on top of her and put his penis up to her face and then in her mouth. He then tried to put his bottom on her face and said, in a low voice, 'Lick my arse, bitch - this is payback.' MB said, 'No - yuck - I don't want to,' and moved herself down the end of the bed. The applicant said, 'This is revenge, bitch.'

73 The applicant pulled MB back onto the bed so that she was lying on her stomach. He got on top of her, turned her left arm around and placed her fingers in her anus. He also placed his fingers in her anus (just) prior to this. MB said, 'No, stop,' and 'Don't, stop.' (Later in her evidence, MB said that she said, 'No, stop,' after he wiped his and her fingers on her face, which I shall come to shortly.) MB said she consented to the first, and could not remember whether she freely agreed to the second, of these two acts of digital-anal penetration. (These alleged acts were to be the bases for Charges 1 and 2.)

74 The applicant then used the finger he had placed in her anus to wipe MB's face. He did the same with her fingers. As he was doing so, MB said, 'Yuck. Don't.' MB said that it was at this point that she 'didn't want to have sex any more, or do anything'. She got up and went to the bathroom, crying.

75 The applicant followed her to the bathroom. She went to leave, but he grabbed her hair and pulled her back in. While holding her hair, he said, 'Look in the mirror,' and, 'You fucking prostitute.' He pushed her head down towards his bottom and said, 'Lick my arsehole.' MB did not want to do this, but did so because of the way he held her hair tightly. (These alleged acts were the basis for Charge 3, indecent assault.)

76 Next, the applicant pulled MB up by the hair and pushed her against the wall. She was crying and said, 'Stop. I don't want to do this.' He then inserted his penis into her anus, which continued for about 30 seconds, until he ejaculated. During this incident, while she was crying, he was saying, 'Shoosh, my parents will hear you.'[21] (These acts were the basis for Charge 4, rape.) The applicant left the bathroom while MB stayed there, sitting on the toilet, for about five to ten minutes. She knew the applicant had ejaculated because 'when [she] sat on the toilet [she] felt stuff in [her] bottom'.

77 When the applicant then left his bedroom, MB quickly put on her clothes. When the applicant returned, MB's bag was just next to her. He said to her, 'You're not going?' She responded, 'You - you just raped me. I am going.' He said, 'Don't play games, [MB]. As if. You wanted it. If you tell anyone about this, I will get [an] Asian to come murder your fucking parents.' (This alleged threat was the basis for Charge 5, threat to kill.) The applicant then laid on his bed and passed out.

78 MB, who was in 'complete shock', ran out the door, got into her car and drove away. She stopped near a McDonald's restaurant, rang her friend 'GG' and told her she had been raped. They arranged to meet in the city, where MB gave her more detail of what had happened. She told her that, when she was bleeding, she said, 'Let's not have sex,' and that he raped her 'in the arsehole'. The two of them then went to a police station and reported the matter.

79 In cross-examination, MB conceded that she did not sleep at all while with the applicant from the Monday afternoon through to the Wednesday morning. While she was affected by ice, she was still able to walk and talk. She accepted that her memory for some detail was significantly affected by the use of ice but said that she remembered 'the main parts' of the events. She accepted that use of ice makes her paranoid and anxious and affects her decision-making but did not accept that it affects her judgment.

80 MB said that she did not remember seeing Dr Kashyap at all after these events and that she could not remember being asked questions by Dr Odell. (There was evidence, to which I shall come shortly, that she had seen and spoken to both of these doctors after making her report to police.)

81 MB accepted that, on the Tuesday, she had consensual unprotected penile-anal sex with the applicant and that, on the Wednesday morning, there were other instances of consensual penile-facial, penile-oral and penile-vaginal sex. When they had sex on the Monday and Tuesday, the only time the applicant ejaculated was when they had oral and vaginal sex; he did not ejaculate into her anus when they had anal sex.

82 Defence counsel suggested to MB, but she rejected, that the alleged anal rape, as she described, was physically impossible and did not happen. He also suggested to her, but she rejected, that the alleged threat to kill was not made.

83 MB accepted that she did not want to go home and see her parents because she was ashamed of herself for being at the applicant's place for a long time. She accepted that she was ashamed of her drug use, that she was anxious about what her parents would think and that she did not want them to know where she had been for the past two nights.

84 While I found it difficult to follow, towards the end of cross-examination, I understood counsel to suggest, but MB to deny, that her allegations of sexual assault 'provided an explanation that blamed the drug use on something out of [her] control'. Counsel suggested to MB that she had told people she was held at the applicant's place, to which she responded, 'I was at a point after he raped me, he wouldn't let me leave.' Then MB accepted that the applicant had told her to leave and that she had chosen not to leave out of embarrassment. Finally, counsel then suggested to MB that 'these allegations are convenient ... [t]o explain [your] drug use over that two-day period with [the applicant]', which she denied.

85 The prosecutor then asked a series of (mostly) leading questions in re-examination, in response to which MB confirmed that the applicant ejaculated three times during sex over the preceding days but that at no time did he ejaculate in her anus (other than the time when he raped her).

86 Five other witnesses gave evidence in the Crown case.

87 GG is MB's friend. She said that, at about 9:00 a.m. on 20 August 2014, MB rang her. MB was crying and said that the applicant had raped her. Later, they met in the city, where MB told her that the applicant raped her anally, had forced her to lick his anus and had not let her leave afterwards but that she left when he fell asleep. GG then took MB to police and stayed with her when she was taken to hospital.

88 In cross-examination, GG accepted that MB did not tell her that the applicant had asked her to leave his place.

89 Senior Constable Kristopher Hall said that he met MB and GG at the counter of the Melbourne East Police Station at 10:15 a.m. on 20 August 2014. MB appeared to be 'visibly upset'. He could not say whether she appeared to be drug-affected.

90 In cross-examination, S/C Hall said that MB told him that she had used ice over the period from 18 to 20 August, but she did not say when she had last used it. She reported 'unwanted sexual acts' preceded by 'consensual sex'. MB told him that the applicant had a shower and, while he was in there, she left.

91 Detective Senior Constable Sharon Cousland, who was a member of the Melbourne Sexual Offences and Child Abuse Investigation Unit, said that she attended the Melbourne East Police Station at about 11:33 a.m. on 20 August 2014. She took MB to the Royal Women's Hospital at 11:45 a.m., where she remained until 12:30 p.m. During that time, MB told the detective that she had been using ice; that she had last used ice at about 8:00 or 8:30 a.m.; and that she had not slept for three days. MB did not appear to be drug-affected. MB said that she left the applicant's home when he was passed out on the bed.

92 Dr Rupali Kashyap, a medical doctor, said that she spent about an hour with MB on 20 August 2014 for the purposes of a sexual assault examination. MB told her that she had taken drugs at about 8:00 a.m. that day, but did not specify the type of drug. When asked whether MB showed any signs of drug use, Dr Kashyap said she was not able to comment other than to say that MB appeared quite agitated and very anxious, was talking very quickly, was unable to sit still, had wide dilated pupils and was very eager to receive medical attention. MB said that the drug she had used that morning did not agree with her and that she was starting to get a rash, which the doctor observed on both her arms. She complained of pain and cold in her hands and other extremities. Dr Kashyap was unable to complete the examination because she was concerned that MB should be medically examined. MB was then handed over to the Emergency Department of the hospital at about 3:30 p.m.

93 Dr Morris Odell, a forensic physician, said that he examined MB at the Royal Women's Hospital from 6:40 p.m. until 8:40 p.m. on 20 August 2014. MB told him that she had been assaulted at about 7:00 a.m.; that she had been smoking a lot of ice in the past couple of days; that she had not slept since 17 August; and that she had developed a rash earlier that day. She said that, at 7:00 a.m., she had consensual sexual intercourse and had vaginal bleeding at that time. She said that the man forced her to lick his 'penis';[22] that he had put his penis in her bottom and ejaculated; and that, before he did that, he had forced her right index finger into her anus and then into her mouth. She said that there had not been any punching but that he had slapped her cheeks and held her down by the neck. She said her anus felt normal and that she had not been to the toilet since these incidents.

94 MB presented with dilated pupils, which is one of the effects of ice. She was otherwise fully conscious and co-operative. She did not present as psychotic or paranoid. She had minor bruising and scratching over her arms and legs and over her left shoulder blade. There was no sign of injury to her genital or anal area. Her vaginal opening was bloodstained, tender to the touch with a cotton bud and would not tolerate an internal examination with an instrument. The doctor said it was common for there to be no obvious signs of injury to the anus when an allegation of sexual penetration is made. He took swabs from the opening of her anus and her vulva for DNA analysis.

95 Dr Odell also gave further evidence about ice and its effects. He said, inter alia, that ice is a stimulant. Its use can increase pulse and blood pressure, give a feeling of invincibility, cause the user not to think about consequences, increase sexual desire, lead to aggression, affect decision-making and concentration, and affect memory and the way perceptions are transferred into long-term memory. There is, however, an enormous variation in the way ice affects individuals.

96 In cross-examination, Dr Odell accepted that the toxicology result for MB - a methylamphetamine (i.e. ice) reading of '0.2' - was 'moderately high'. He agreed that her reading eleven hours earlier is likely to have been higher, and the effects greater. He also accepted that taking ice every hour for 37 hours, as MB admitted, was 'an enormous amount of consumption'. He agreed that the observations of MB by Dr Kashyap were consistent with the side-effects of ice use.

97 When asked what he would say about MB's evidence that using ice does not affect her judgment, Dr Odell said that ice does 'affect people's judgment' and, 'when they're in an intoxicated state, ... they can't judge that their judgment is affected, if you know what I mean'.

98 Dr Odell also opined that being awake from the Monday to the Wednesday, even without ice, 'has an effect on the way the mind works, and it ... affects people's cognition - that is, their mental functioning', and they have 'difficulty concentrating on things, ... sustaining their attention on things, and reacting properly to ... things that they need to react to in the environment'. He said that, 'because they can't think properly, and if you add a drug on top of that, ... it's a very disturbed situation for a person to be in'.

99 Dr Odell also accepted that, while it is usually seen in long-term use of ice, 'amphetamine psychosis' can result from short-term use of ice by a short-term user, and that a person can 'go in and out of [that] psychosis'. He accepted that a person using large concentrations of ice over a two-day period could fall in and out of psychosis during this period. The user would not know that he or she was falling into that psychosis, as the experience of delusional thinking would seem extremely real.

100 Dr Odell conceded that it is possible that the semen containing the applicant's DNA in the anal swab could have been deposited there from activity other than the alleged anal rape, including vaginal sex involving ejaculation or any sex where there was no ejaculation but involved pre-ejaculatory fluid.

101 Finally, in cross-examination, Dr Odell agreed that it was possible that, in MB's drugged state, her memory of events was distorted.

102 In re-examination, Dr Odell said that it was possible that sperm deposited in the vagina could 'leak out' and 'find its way to just about anywhere'. He said that, even if the ejaculation into the vagina had occurred two days earlier, it was 'certainly possible' that semen could be found on her anus when he examined her.

103 Finally, when asked whether, with respect to amphetamine psychosis, if a person did suffer from some sort of delusion that then passed, the person would be likely to know what was experienced was a delusion, he said, 'Probably.'

104 The applicant also made an admission of fact that semen was detected in the anal swab taken from MB and that the DNA results provided 'extremely strong support for the proposition that [the applicant] was the source of the semen'.

105 The applicant did not give or call evidence. While he had denied rape in a record of interview with police, neither that fact nor the interview was led in evidence before the jury.

The course of the trial leading up to the 'no case' decision

106 I turn next to the course of the trial leading up to, and immediately following, the submission that there was no case to answer on Charges 1 and 2.

107 After MB gave evidence of her consent to the acts led in support of those charges, and during a subsequent break in evidence-in-chief, the judge, in the absence of the jury, remarked, 'That's the end of Counts 1 and 2.'

108 Subsequently, during a break in cross-examination, defence counsel said that he 'need[ed] to give some thought about how [he] proceed[s] with these acts on the bed with the fingers in the anus, given [MB's] answers'. It is plain that counsel had questions he had planned to ask MB about the circumstances alleged in Charges 1 and 2 but that he was unsure whether to pursue that course. The judge reiterated his view that, on MB's evidence thus far, the acts of digital-anal penetration were consensual. The prosecutor indicated that, while Charge 1 may be 'lost', he would be submitting that Charge 2 was still open on the evidence. The judge cautioned defence counsel that, if, as foreshadowed, he sought to put to MB allegedly prior inconsistent statements made by her at the committal hearing, that may revive Charges 1 and 2 by eliciting evidence that supported an absence of consent to the alleged acts of digital-anal penetration. Defence counsel then resumed his cross-examination of MB, but was astute to avoid direct reference to those alleged acts.

109 Later, during another break in cross-examination of MB, the judge disclosed to counsel, in the presence of the jury, that the jury had asked, inter alia, 'Was the insertion of his fingers into her anus consensual? Was the insertion of her fingers by him consensual?' Without seeking any submissions from counsel, the judge immediately sought to answer the questions. His Honour said to the jury:

... The first two questions there's evidence already been given about, and I will go to it when I get the transcript. I've looked at it carefully overnight. But you heard her evidence yesterday.

But, in essence, as I read it, and I will read it precisely, is that she indicated that everything turned for her when he rubbed his fingers, and her fingers, on her cheek, and that the insertion of the fingers, his and hers, had occurred before that, I think in one stage she said she agreed, at least with some of it.

So I will go back to it in some detail, but I think the answer to that is, there's no evidence that it wasn't, putting it that way - that it wasn't consensual. ...[23]

110 The jury then heard the balance of MB's evidence, including further cross-examination and re-examination.

111 During the break that followed MB's evidence, the prosecutor expressed the (reasonable) 'wish' that the judge had discussed the jury questions with counsel before answering them, particularly given his submission that there was still a case to answer on Charge 2 (as distinct from Charge 1). The judge said he would hear submissions later. Twice more during breaks in the subsequent evidence, the judge, in the absence of the jury, reiterated his view that there was no case to answer on Charges 1 and 2, but said that he would hear the prosecutor at the close of the Crown case.

112 When that time came, defence counsel submitted that there was no case to answer on Charges 1 and 2. After having the matter stood down briefly, the prosecutor announced that he had 'bow[ed] to the inevitable', and made no submissions to the contrary.

113 The judge then indicated, as he had done in previous discussions, that, in his view, while '[i]t's arguable that it [i.e. MB's going 'from consenting to non-consenting'] [occurred] earlier ... she actually said it was the wiping of the cheeks that caused it and that, subsequent to ... the anal penetration with his finger and hers, which is Charges 1 and 2'.[24]

114 His Honour indicated that he would be 'telling [the] jury that they can't convict on those two [charges] but whether I do it now or during the course of the charge doesn't really matter because you're not going into evidence'. The prosecutor submitted that it would be better to tell the jury before final addresses. The judge then said, 'I will be telling them I'm going to be telling them at the end ... so they don't have to listen to it and they won't have to determine it.'

115 I break from the summary to note that, as Ashley and Priest JJA have pointed out, it is of relevance to Ground 2 that defence counsel did not object to that proposed course. Nor did he submit (a) that the judge should enter verdicts of acquittal on Charges 1 and 2, or direct the jury to do so, forthwith and (b) that he then should discharge the jury without returning verdicts on Charges 3, 4 and 5. I shall return to these matters when discussing Ground 2.

116 Immediately thereafter, the judge also said that '[t]he issue in this case is whether or not he indecently assaulted her, raped her and threatened to kill her family'. A short while later, in the course of discussions, pursuant to the Jury Directions Act 2015 ('the JDA 2015'), about the jury directions required, defence counsel agreed with his Honour when he said:

... They were the only discrete topics, other than defining the elements of each of the offence[s] but I think you will be agreeing with me, won't you, that if they happened in that way - if they satisfy beyond a reasonable doubt that they happened in the way she said that they did the offence has been made out. ... The question is whether they're satisfied beyond reasonable doubt that those three offences occurred.

117 Again, I break to note that, as Ashley and Priest JJA point out, it is relevant to Ground 3 that counsel did not object at this point or at any later point after the judge charged the jury along the same lines.

118 The next step was that, after defence counsel announced the applicant's course in the presence of the jury, the judge then directed the jury in the following manner:

... Before the barristers start [their final addresses], ... You asked a question during the course of the trial that went along the lines of, 'Were the - was the act of digital penetration of the anus and forcing her to penetrate her anus - were that consensual?'

I said we would get back to that. And the answer is, on her evidence, she says it was. She was asked whether or not she consented to those - or whether she had a problem - I will find the answer. 'Did you consent?' She said no initially, and then she said, 'Yes. Sorry. I did. It was - at that point, it was fine. It was the point when he put his fingers on my face' - and that's when she - that's where she said it changed.

Now, as I will be telling you, rape involves the prosecution proving as a matter of fact that there was no consent, and she, in fact, is admitting that at - as for those first two counts - Charges 1 and 2 - that she - that was fine. It was only when he rubbed it on her face that she changed her tune, as it were, and this went from being consensual activity - or at least not non-consensual activity - she wasn't - I think (indistinct) put it fairly.

So she said she wasn't delighted by it, but she wasn't, at that point, saying no, but from that point onwards. So you will be directed - and I'm directing you - that when you return verdicts, you will be returning verdicts of not guilty in relation to Charges 1 and 2. I'm saying nothing about Charges 3, 4 and 5. They are still live, and they're for your consideration, but you won't be - you will be directed to bring in verdicts of not guilty in respect of Charges 1 and 2.[25]

119 The judge then called upon the prosecutor to address the jury.

120 For now, I shall say only this about the prosecutor's address. Counsel accepted that the Crown case depended upon the jury's being satisfied, beyond reasonable doubt, that MB was truthful and reliable in her account of the charged allegations. He submitted that the jury should be so satisfied. He then put a series of arguments as to why that was so. I shall return to some of those arguments later in these reasons.

121 The judge next called upon defence counsel to address the jury.

122 While the prosecutor's address, which ran for over 23 pages of transcript, was comparatively long and comprehensive, defence counsel's address was very brief and sparse - it ran for only five-and-a-half pages.

123 In essence, counsel submitted that MB was unreliable, or otherwise not to be believed, because, amongst other things, she:

b) had consumed ice (almost) every hour during that period;

c) admitted that her memory was significantly affected, which is consistent with Dr Odell's evidence that it was possible that, in her drugged state, her memory of events was distorted;

d) admitted that ice use makes her feel paranoid and anxious, which is consistent with Dr Odell's evidence;

e) denied that ice affected her judgment, despite Dr Odell's evidence that the drug does indeed affect judgment and, what is more, when users are affected, they cannot judge that their judgment is affected;

f) had more ice when the applicant was in the shower and after the alleged indecent assault and penile-anal rape;

g) gave an account of those alleged acts that was implausible and amounted to the physically impossible; and

h) had no memory of spending any time with Dr Kashyap, despite the fact that she had been with him for an hour and in circumstances where the doctor's observations of her were, in Dr Odell's opinion, consistent with her being affected by ice.

124 Counsel also referred to the prosecutor's submission that the DNA results from the anal swab provide support for MB's account. He submitted that those results were neutral because, in light of the evidence - including acts of consensual sex and ejaculation, the possibility of pre-ejaculatory fluid being emitted and the opinion of Dr Odell - they could be explained by something other than MB's allegation of penile-anal rape and ejaculation.

Ground 1(a): Failure to give anti-propensity (or tendency) warning

126 While there will be some overlap, I shall attempt to deal with Grounds 1(a) and 1(b) separately. As I have indicated earlier, I would uphold both grounds. It will be more convenient to defer consideration of Ground 1(b) until much later in these reasons. So, first, to Ground 1(a).

127 In their reasons, Ashley and Priest JJA appear to proceed on the basis that Ground 1(a) is confined solely to an assessment of whether an anti-propensity direction was necessary in light of 'the evidence on' Charges 1 and 2.[26] While it is correct to say that the ground, as pleaded, speaks in those terms, the arguments of the parties, as I understood them, also embraced the evidence of behaviour accompanying and immediately surrounding the acts of digital-anal penetration that were the basis for Charges 1 and 2.[27] In any event, for the purposes of considering this ground (and Ground 1(b)), in my respectful opinion, it is impossible sensibly either to sever that alleged accompanying and immediately surrounding behaviour from the acts of penetration or to ignore that behaviour. As will be seen, that is the way in which the prosecutor dealt with the evidence in his final address when urging the propensity reasoning that ought to have attracted an anti-propensity direction.

128 Mr Morrissey SC, who appeared for the applicant in this Court (but not at trial), submitted that an 'anti-propensity' direction was necessary. In summary, his argument was as follows:

a) First, the evidence supporting Charges 1 and 2 'included evidence of a very prejudicial kind - unusual and confronting sexual behaviour, accompanied by vengeful, hostile and aggressive comments'.

b) Secondly, while the evidence was admissible on the trial, the prosecutor relied 'very heavily indeed' upon that evidence in support of Charges 3, 4 and 5.

c) Thirdly, it was necessary to direct the jury that, while the impugned evidence may be used as relevant to credit and relationship, they must not engage in propensity reasoning. But no such direction was given.

d) Fourthly, while trial counsel's request for a direction on 'uncharged acts' was in general terms, the judge (erroneously) declined to give such a direction because there was no 'reference to uncharged acts in the classic sense'.

129 Mr Boyce SC, who appeared for the Director in this Court (but not at trial), submitted that no such direction was required. In summary, his response was as follows:

a) First, the impugned evidence 'explained the evidence of wiping [MB's cheeks] which in turn explained the lack of consent'.

b) Secondly, while the evidence, including the first act concerning anal licking, 'might be seen by some to be rather extreme', the fact remains that the applicant 'did not force [MB]' and 'respected [her] right to say "no"'. In those circumstances, it would have been 'a dangerous thing ... for the jury to be told that this earlier activity ... could conceivably amount to a propensity to commit rape, even if the jury was expressly directed against such reasoning'.

c) Thirdly, there 'was no suggestion in the prosecutor's argument that by virtue of the impugned evidence the applicant was the type of person likely to commit Charges 3 to 5'.

d) Fourthly, while trial counsel was 'not entirely explicit' about the evidence to which he was referring when he requested a direction on 'uncharged acts', his reference to prosecutor's remarks about 'the aggression' was 'more likely' to be to evidence that preceded consensual acts of sexual intercourse and the impugned evidence, but that the exception was not pursued in the end anyway.

130 Ashley and Priest JJA are of the view that the evidence which it is said should have attracted an anti-propensity warning is 'other misconduct evidence' within the meaning of that term in paragraphs (c) and (d) of the definition in s 26 of the JDA 2015.

131 By paragraph (b) of the same definition, 'other misconduct evidence' also means 'tendency evidence'. 'Tendency evidence', in s 26 of the JDA 2015, has the same meaning as in the Evidence Act 2008. The dictionary to the latter Act provides that 'tendency evidence' means evidence of a kind referred to in s 97(1) that a party seeks to have adduced for the purposes referred to in that subsection. Section 97(1) provides as follows:

Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, unless -

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(e) Prosecutor's invitation to employ propensity (or tendency) reasoning

132 Whatever its true character, contrary to the Director's submission in this Court, I am satisfied that the prosecutor, in his final address, invited the jury to use the evidence led in support of Charges 1 and 2, and the evidence of the uncharged behaviour that immediately preceded, accompanied and followed that alleged behaviour, in a propensity (or tendency) fashion. So much is apparent from a reading of the following four passages in the prosecutor's address.

133 In the first passage, in what I suggested earlier might be an ingenious piece of advocacy, the prosecutor submitted that MB 'prove[d] she was being honest, ... strangely enough, by faithfully undermining the [Crown] case on Counts 1 and 2'. He explained that, contrary to the outline he had given in his opening address, in her evidence, MB conceded that the acts of digital-anal penetration were consensual. He had opened the case on the basis that the 'transition point' in her consent was when the applicant (initially) put his buttocks on her face (i.e. just prior to the acts of digital penetration). But MB said in evidence that the turning point was when he wiped her fingers, and his, on her face, which came straight after the acts of digital-anal penetration.

134 I pause at this point to make three observations. First, while he was quite inventive, the prosecutor should not have been referring to what he had said in his opening as if, somehow, it contained evidence of what MB had previously said and was going to say. Secondly, however, defence counsel, presumably, was happy enough to hear that confession, because, in light of the evidence MB did give, it tended to undermine her credibility and/or reliability. Thirdly, however, things went seriously awry when the prosecutor sought to explain MB's change of mind and the applicant's motive and inclination during the acts following the spitting incident and preceding the acts alleged in Charges 3, 4 and 5.

135 Thus, in the second passage, the prosecutor submitted the following:

I gave her several chances to say that having those fingers inserted in her anus was not consensual and she didn't, or at least, not clearly. But when you look at her evidence, you can think about it in this way. She's got them having consensual penis-in-vagina sex. Then she's being held down on the bed and having a penis put in her mouth. Then she's having buttocks put on her face. Then she's having fingers shoved in her bottom.

But it's not, she says, until those fingers are wiped on her cheek. This is where's she drawn the line and really, as I could understand what she's saying is, up until then, it was - or it seemed to her - to be rough sex. Perhaps she wasn't really thrilled ... about it, you get that sense from her evidence, but she went with it. She's (indistinct) to call it rape.

But then it changed and it changed at the point where she realizes, 'This wasn't sex any more. This was punishment.' That's what it was. Punishment. And that's the point it became clear to her was when those fingers ... getting rubbed on her cheeks. That's when it changes for her because she realizes now this is not what she thought it was. This is something else and it's when she's in the bathroom and he comes after her - that's when she gets raped.

But the important thing about her credibility is that when [MB] has been asked to draw that line - you know, where we've gone from consensual to non-consensual - she has drawn it in the most generous way you could draw it [for the applicant]. That's what she's done. She's drawn it at the last point before she's ... crying in the bathroom and he comes in and grabs her by the hair and shoves his face into his buttocks. She's given him the benefit of the doubt, she has.[28]

136 These submissions were calculated to convey the notion that, while MB believed the applicant may have sexually assaulted or raped her earlier, and he probably did, because she only realized what had been happening by the time her face was wiped, she was prepared nevertheless to 'give him the benefit of the doubt' until that point.

137 In the third passage, the prosecutor submitted that, while the Crown does not have to prove a motive for the applicant's behaviour, nevertheless:

[i]t does seem, on [MB's] evidence, that Mr Gul was becoming increasingly irrational and aggressive over those couple of days. Maybe that's related to ice use, maybe it's not. Maybe he's just an angry kind of guy. We don't know. But this wasn't - this didn't - there was a kind of - there was a certain kind of build-up to this. This just didn't come out of the blue. There was increasing aggression over those days.[29]

138 In context, the jury would have understood this submission to mean that, whether because of ice use or his personal inclination, the applicant had become increasingly irrational and aggressive, and therefore more likely to have raped and indecently assaulted MB during that period. Either way, he was the 'kind of guy' to commit rape and indecent assault.

139 In the fourth and final passage, which followed immediately upon the third, the prosecutor said this:

And that culminated, that was pretty aggro and pretty nasty. Remember, that culminated in that spitting episode. He spat in her face, she spat back at him. That's when the change happened, that's when the change probably happened in his mind. It took her a while to realize exactly what had happened. And perhaps everything that followed, everything that's charged is really out of some desire to punish her, humiliate her and punish her for that. And that makes a certain amount of sense in light of his actual conduct. She stands up for herself, she spits at him, he punishes her. And of course on her account that's what he said to her, 'Punishment. This is punishment , bitch.'[30]

140 This submission is calculated to convey that the change in the applicant - from a person engaging in consensual sex to a person intent upon acts of rape and indecent assault designed to punish and humiliate MB - occurred because of the spitting incident, which was said to be early on the Wednesday morning, just before the following acts: the (interrupted) penile-vaginal sex, following which MB said, 'Let's not have sex'; then the removal of her clothing in an aggressive fashion and the putting of his penis up to her face; then the insertion of his penis into her mouth; then the attempt to put his bottom on her face, accompanied by the words, 'Lick my arse, bitch - this is payback,' and, 'This is revenge, bitch'; then the two acts of digital-anal penetration forming the basis of Charges 1 and 2; and then the face-wiping incident. While the submission was intended in part to explain away MB's change of account as to when things 'turned', it is also calculated to convey that she did not realize the applicant was in fact attempting to rape, assault and punish her earlier - thus, '[i]t took her a while to realize exactly what had happened'.

141 The upshot is that, in these passages, the prosecutor invited the jury to use the applicant's earlier alleged aggressive sexual behaviour (at least from the point where 'she's being held down on the bed and having a penis put in her mouth, ... having buttocks put on her face [and] ... having fingers shoved in her bottom' to 'when those fingers [were] getting rubbed on her cheeks'), as well as his inclination to anger and aggression and accompanying talk of revenge or payback, as demonstrating that - at least in his own mind and, perhaps on reflection, in the mind of MB too - he was in fact, by commission of those acts, trying to assault, rape, punish and humiliate her and that, as a result, he was the type of person who would commit the acts alleged in Charges 3 and 4 and then threaten her in the way alleged in Charge 5. That is nothing more than rank propensity (or tendency) reasoning.

(f) The need for an anti-propensity/tendency direction

142 Such reasoning is prohibited. There was no warrant for using the evidence in this way. No tendency notice had been filed.[31] Further, the prosecutor's arguments heaped speculation upon an unwarranted interpretation of MB's evidence. The applicant's defence to Charges 3, 4 and 5 was that those events did not occur. Misuse - by way of propensity (or tendency) reasoning - of the alleged behaviour both founding and surrounding Charges 1 and 2 directly undermined that defence. It will be recalled that Mr Boyce submitted that it would have been 'a dangerous thing ... for the jury to be told that this earlier activity ... could conceivably amount to a propensity to commit rape'. He was right. But that is, in effect, what the prosecutor did. It follows that it was necessary, pursuant at least to s 29(1) of the JDA 2015,[32] to warn the jury against this kind of reasoning.

143 As things turned out, the Crown, through the prosecutor's final address, received the legitimate benefit of the evidence for the purposes of seeking to explain - or perhaps rationalize - why and when it was that MB's consent changed but also the illegitimate benefit of an invitation to employ propensity/tendency reasoning. The applicant's potential benefit from the evidence - that MB may be seen as less credible and reliable in light of the substantial change in her account - was more than offset by the risk of rank propensity/tendency reasoning. That risk is almost certain to have materialized given the terms of the prosecutor's address and the judge's failure to disabuse the jury and warn against such reasoning.

144 While I regard this next point as unnecessary to my ultimate conclusion, the need for such a direction was even more pronounced in light of some remarks the judge made to the jury during the course of the trial. Those remarks suggest that MB's consent to the acts of digital penetration was, in truth, equivocal.

145 In particular, it will be recalled that, when answering the jury's question about whether the acts of digital penetration were consensual, his Honour said that 'the insertion of the fingers ... I think [at] one stage she said she agreed, at least with some of it'.[33] Further, when directing the jury they had to return verdicts of not guilty on Charges 1 and 2, his Honour said, of the acts of digital penetration, that this 'went from being consensual activity - or at least not non-consensual activity - she wasn't - I think (indistinct) put it fairly. So she said she wasn't delighted by it, but she wasn't, at that point, saying no, but from that point onwards'.[34]

146 These directions are also consistent with the view the judge had expressed in the absence of the jury - namely, that '[i]t's arguable that it [i.e. MB's going 'from consenting to non-consenting'] [occurred] earlier'.[35]

147 Perhaps the prosecutor was emboldened by these remarks to address as he did. But, as can be seen, he went well beyond anything the judge said.

(h) Use of evidence the subject of the (impending) acquittals

148 In reliance on the following passage in the judgment of Redlich JA in R v VN,[36] Mr Morrissey also submitted that there was a further need 'to direct the jury concerning the use to which those allegations [i.e. those supporting Charges 1 and 2] could be put':

Though there can be no inflexible rule, the entry of verdicts of acquittal in a trial involving multiple counts on the presentment will not ordinarily require the discharge of the jury but the jury must be warned against the impermissible use of evidence that has been led on those counts and directed as to any limited use that can thereafter be made of such evidence.[37]

149 The submission raises an interesting issue. While the jury had been directed to acquit on Charges 1 and 2, the acquittals were not to occur, and did not occur, until the jury delivered their verdicts at the end of their deliberations. Thus, strictly speaking, Charges 1 and 2 were still 'live' at the time of the jury's deliberations, which may mean that the principles concerning giving an accused the full benefit of any acquittal were not engaged. Further, that state of affairs is consistent with the prosecutor's submission that 'everything that followed [the spitting incident], everything that's charged is really out of some desire to punish her, humiliate her and punish her for that'.[38]

150 Perhaps if the judge himself had entered verdicts of acquittal, or directed the jury to do so, immediately after the successful 'no case' submission, the minds of those at trial might have been focused more precisely on how the evidence of, and surrounding, Charges 1 and 2 might properly be used, and how it must not be used, in proof of Charges 3, 4 and 5.

151 In the result, I think it is unnecessary to determine the point for the purposes of this application, because the failure to give an anti-propensity/tendency direction, alone, is sufficient to cause the convictions to be set aside. Nevertheless, it is arguable that part of the prosecutor's argument tended to deny the applicant the full benefit of the (impending) acquittals, at least in so far as it tended to undercut the element of absence of consent, which had been determined - by the judge, and with the concurrence of the prosecutor - in the applicant's favour.

152 The point may have relevance, however, if there were to be a retrial on Charges 3, 4 and 5 and the evidence concerning and surrounding Charges 1 and 2 were ruled or agreed to be admissible - a matter about which I offer no view. The acquittals, of course, have occurred now. Whatever the purpose for which the evidence were to be led at a retrial, consistently with the remarks of Redlich JA in R v VN, in order to ensure that the applicant gets the full benefit of those acquittals, the jury would have to be 'warned against the impermissible use of evidence that has been led on those counts and directed as to any limited use that can thereafter be made of such evidence'.

(i) Directions given on bias, prejudice and sympathy were no substitute

153 Ashley and Priest JJA have concluded that the judge's directions on bias, prejudice and sympathy - which included an admonition against employing 'emotional responses' because of the 'prolonged sexual activity, unusual sexual activity, prolonged drug use, all of these factors' - were sufficient to ameliorate any risk that the jury would act according to any prejudice engendered by the evidence on Charges 1 and 2.

154 I do not agree. Such directions go to a different issue - that of reasoning in a biased, sympathetic or prejudiced way against either the applicant or the complainant - and not to propensity or tendency reasoning against the applicant alone.

155 To be sure, s 27(2)(c) of the JDA 2015 provides that, when dealing with 'other misconduct evidence', the judge must 'direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused'. The generalized bias/sympathy/prejudice direction might be thought to have mirrored one aspect of a direction under s 27(2)(c) and thereby captured, in an indirect way, (a small) part of the applicant's concern. But that is a far cry from the other directions required by s 27(2)(a) (identification of how the other misconduct evidence is relevant and a direction not to use the evidence for any other purpose), s 27(2)(b) (if the evidence forms only part of the prosecution case, a direction informing the jury of that fact) and, most importantly, s 29(1) (an anti-propensity/tendency direction), which were not given at all.

156 In his written case, Mr Morrissey submitted that 'defence counsel requested (in general terms) that the trial judge deal with the issue of "uncharged acts" ... [but that] his Honour chose not to [do so], saying, "I don't believe ... there is a reference to uncharged acts in the classic sense"'. That is correct, but there was more to the exchange than that. This is what happened.

157 Immediately following defence counsel's address, which had followed directly upon the prosecutor's address, the judge commenced his charge. At the next break, straight after the judge sent the jury home for the day, defence counsel requested a direction on 'uncharged acts'. He submitted that the prosecutor had 'spoke[n] about uncharged acts ... in his closing'. The judge's response was, 'Good lord, did he? ... [W]hich uncharged acts?' Counsel responded, 'The aggression and grabbing her by the neck.' The judge said that that (meaning, I think, the grabbing of the neck) was 'a charged act'. His Honour also said that the prosecutor 'speculated that ice could make him aggressive and behave the way she says he did in the bathroom'. The prosecutor said that, while there was evidence that the applicant 'grabbed [MB] by the throat at one point' (meaning, I think, the instance on the Tuesday), he was sure he did not say that in his final address. But he did accept that, in his address, he 'advert[ed] to the build-up of aggression', which he employed 'to say that this didn't come out of the blue'.

158 The following exchange between the judge and defence counsel then occurred:

At a glance

Court

Decision date

Before

Source

Judgment (412 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (12)