Hajar v The Queen [2015] VSCA 233

CRIMINAL LAW - Appeal - Sentence - Rape, attempted rape, indecent assault - Sentence 5y, non-parole period 3y - Whether manifestly excessive - Violent offending - Breach of trust - Leave to appeal refused.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 The applicant was found guilty by a jury of one charge of indecent assault, one charge of rape, and one charge of attempted rape. After a plea in mitigation of sentence, he was sentenced to a total effective sentence of 5 years' imprisonment, with a non-parole period of 3 years. He seeks leave to appeal against his conviction and sentence.

2 The applicant seeks leave to appeal against conviction on the following two grounds:

(1) a substantial miscarriage of justice has occurred because of a failure of the applicant's counsel to adduce good character evidence in the trial of the applicant; and

(2) the verdict is unreasonable or cannot be supported having regard to the evidence.

3 The applicant, who is aged 44 years, met his wife VF in Lebanon where they were married. The complainant, SM, is the sister of VF.

4 The applicant came to Australia on a spousal visa in late May 2012 together with his four children by a previous marriage. From the outset there were difficulties in the relationship between the applicant and VF. As a result, SM became involved as a mediator between them in order to try to resolve their difficulties. Due to the stress of his failing relationship with his wife, the applicant began drinking alcohol heavily. As a result, VF began leaving the family home for long periods of time during the day.

5 On 31 July 2012, VF left the family home in the morning, apparently as a result of an argument between herself and the applicant. The applicant commenced drinking alcohol. He telephoned SM between 11.00 am and 11.15 am, and requested that SM come to his home. The applicant was then upset and crying.

6 After receiving that telephone call, SM drove to the applicant's home. When she arrived, she noticed that the applicant had been drinking. The applicant and SM then went outside to the veranda for a cigarette, where they talked for a period of time. SM stated that she felt cold and that she wanted to get a jacket. However, the applicant told her the jacket was in the bedroom. He grabbed SM by the arm, and led her to that room. They sat on the bed and spoke for a few minutes. The applicant was upset and crying, and SM attempted to comfort him.

7 As she did so, the applicant grabbed SM by the back of her hair, twisted it, and pushed her back on the bed. He held her down. The applicant pulled SM's top above her breasts and pulled her breasts out of her bra. He then began biting SM's nipples and sucking on her breasts (charge 1 - indecent assault). The applicant then undid SM's jeans and digitally penetrated her vagina (charge 2 - rape). He then took his penis out of his jeans and attempted to penetrate SM's vagina. However, SM squeezed her legs together, so that the applicant was unsuccessful in penetrating her. The applicant began thrusting his body as if he was having sex with SM, and put his penis between her thighs (charge 3 - attempted rape).

8 At the trial, the defence case was that any sexual contact between the applicant and SM was consensual, and that the allegations in respect of charge 3 were fabricated. It was alleged that SM had lied to her sister, VF, when telling her what happened, in order to save her own troubled marriage. In addition, it was submitted that there were a number of inconsistencies and discrepancies in the account given by SM, and that SM was not a credible or honest witness.

9 On the other hand, the prosecution's case was that SM was a credible and honest witness. The applicant's contention that SM was infatuated with him, and that she had instigated any sexual contact between them on the day, was fanciful and illogical. There was little evidence that SM's marriage was troubled.

10 Each of the two grounds, upon which the applicant seeks leave to appeal, involves some consideration of the nature and cogency of the case presented by the prosecution at trial. It is therefore necessary to summarise the prosecution case in a little detail.

11 SM gave evidence that she first became involved in mediating the marital difficulties between her sister and the applicant a couple of days after the applicant had arrived in Australia in May 2012. Over the next two months, there were many meetings between the applicant, VF and SM regarding the marital problems between the applicant and VF. On the day of the offending, 31 July 2012, the applicant rang her at 11.00 am or 11.15 am, and told her that VF had left that morning, and that he was very worried. He asked her to come over as he needed to speak to her. SM agreed to go to his house. She felt sorry for the applicant. SM tried to telephone VF, but was unable to do so.

12 SM then cancelled her hairdressing appointment, and drove to the applicant's house. He greeted her at the entrance with a hug and a kiss. He attempted to kiss her again, and she resisted and told him not to. She observed that he had been drinking. Accordingly, she suggested that they have a coffee. However, the applicant refused and poured himself another drink.

13 Thereafter, at SM's suggestion, they went outside for a smoke. They remained outside for between five minutes and 15 minutes. SM then told the applicant that she felt cold, and she went inside to get a jacket. She walked through the kitchen towards the dining room, where she thought that she had seen a jacket. As she did so, the applicant grabbed her by the upper arm and steered her through the laundry to the bedroom. He told her that they should just sit there and talk.

14 SM did not feel comfortable about the situation, so she got the doona and placed it across her legs. They spoke for a few minutes, discussing the applicant's relationship with VF. The applicant was crying. He reached over towards SM, and she gave him a hug to comfort him. The applicant then put his arms firmly around her. He grabbed SM by the back of her hair, and twisted her hair. It was very painful. The applicant then pushed SM back onto the bed. He rolled onto her right side, pinning her down. SM resisted and begged the applicant to let go of her. The applicant said that he loved her, and that he did not love VF. SM said that she was happily married with children and again asked the applicant to leave her alone.

15 The applicant then forced kisses onto SM's lips. She fought hard, closing her mouth as hard as she could. He continued to push his mouth onto her, and was biting her lips so she would open her mouth. SM responded by moving her head from side to side, but the applicant held her hair tightly. He pulled her top up above her breasts and below her throat, thus exposing her breasts. He pulled her breasts out of her bra. She begged him to stop. She continued to resist and tried to punch the applicant off her. The applicant bit her nipples and sucked her breasts, and kept trying to kiss her.

16 The applicant then undid SM's jeans with his right hand. She tried to hold her jeans in place, but he was able to pull them below her hips. He inserted his fingers into her vagina. She said that that was very painful, because three months previously she had undergone a major hysterectomy, following which she had been unable to have sex due to the discomfort it caused her. SM begged the applicant to stop and told him that he was hurting her. At that stage, his body was on her right hand side, and he was biting her neck all over.

17 The applicant then took his penis out of his trousers, positioned his body over SM, and tried to insert his penis into her vagina. SM resisted by squeezing her legs together so hard that he was unable to do so. The applicant lay on top of her and was thrusting his penis between her thighs. SM continued to try to fight the applicant off.

18 The applicant grabbed SM's wrist and tried to force her hand towards his penis, but she continued to fight him. He kept biting her nipples. He then let go of her, and she went into the laundry.

19 The applicant cornered SM there. He pinned her against the wall and forced his body against her. As he did so, he repeatedly thrust his penis against her vagina. He also tried to bite and kiss her. SM was able to persuade him to release her, and she went into the kitchen. He followed her and grabbed her by the hair. After some further resistance by SM, he promised to let her go if she had a cigarette with him. They went outside onto the back veranda, and he tried to make her smoke a cigarette. When she refused, he grabbed her shoulder. He again grabbed the back of her hair, pulled her over and tried to kiss her. SM resisted by holding her lips together tightly. She forcefully resisted him. She struggled to the front door, but he grabbed her again by the hair and tried to kiss her. She was able to open the front door, and exit the house through it.

20 She left at about 2.00 pm. After sitting in her vehicle for about 20 minutes, she went to the bathroom of a McDonald's store to wash herself. She then returned to her vehicle and sent a text to VF, stating, 'No pity for anyone. Time you contact the Immigration Department'. Subsequently, VF responded, and arranged to meet SM. When they met, VF asked if SM had gone to her home, and SM said that she had. VF knew something was wrong, and she repeatedly asked SM what had happened. After she persisted, SM responded, 'Well, if you must know, he raped me'.

21 VF gave evidence as to the difficulties in her marriage with the applicant. She stated that she involved SM in those difficulties. On the morning of 31 July 2012, VF and the applicant had an argument, and she left the house. She received a text from SM at 12.01 pm to the effect, 'Are you at home? I'm coming over'. At 2.00 pm SM telephoned her again, but VF did not respond. She confirmed that she received the text that SM had sent her at 2.30 pm. She stated that when she met SM that afternoon, VF asked her if she had been to the house, and after asking her what happened several times, SM told her that the applicant had raped her. Subsequently, on the same day, VF and SM telephoned the police.

22 After 31 July, VF remained in contact with the applicant. He refused to tell her what had happened until he could secure his children's future. Subsequently, on 18 August, after the children had departed from Australia, the applicant and VF discussed what had happened with SM. The applicant stated that he did not rape SM. He said that SM had come over, and followed him into the bedroom, where he was getting a jacket for her to wear. He was sitting on the bed crying. She lifted her top, and rubbed her breasts against his face. They both realised that what they were doing was wrong, so they went out on the deck to smoke cigarettes. SM said that she was cold and wanted to go back inside. She took the applicant into the bedroom to lie him down as he was drunk. She then sat on the bed with him, and then there was another sexual encounter between them. He said that SM grabbed his hand and repeatedly put it against her genitals, and that she undid his zip and was manipulating his penis to arouse him.

23 VF also stated that, when the applicant said to her that SM had forced his hand against her genitals, she (VF) grabbed the applicant's hand, and forcefully and repeatedly put it against her genitals, asking 'Is this what [SM] did to you? Now you show me that you can't release your grip from my hand'. In addition, she also asked SM whether, on the first time he and SM went into the bedroom, he knew that what happened there was wrong. The applicant responded in the affirmative. She then asked the applicant why, in those circumstances, he went back into the bedroom for a second occasion. The applicant responded that he did so because he was drunk and he thought that SM was taking him back to settle him to bed.

24 A statement by SM's hairdresser was read into the evidence, confirming that SM had telephoned her salon at 12.30 pm on 31 July to cancel her appointment.

25 Louise Brown, a forensic scientist, gave evidence as to the examination of samples taken from the applicant and SM for the purposes of obtaining any DNA evidence. Relevantly, Ms Brown found the following:

• DNA detected on two swabs taken from SM's right nipple did not exclude the applicant as a contributor with a statistical ratio of a likelihood of 160 billion in favour of the applicant being a contributor to the sample.
• DNA detected on two swabs taken from the applicant's fingernails did not exclude SM as a contributor of a statistical ratio of a likelihood of 35 billion in favour of SM being a contributor to the DNA.
• DNA detected on six swabs taken from different areas of the applicant's penis did not exclude SM as being a contributor with a statistical ratio of a likelihood of 35 billion in favour of SM being a contributor to the DNA.

26 Dr Marian Magee, a forensic medical officer, employed by the Victorian Institute of Forensic Medicine, conducted an examination of SM on 31 July at 6.35 pm. She made the following findings:

• Pinpoint bruising was found on the inside of SM's lower lip which was consistent with the application of pressure, blunt force or suction.
• There were areas of tenderness including SM's mouth, nipples, the flesh of both her upper arms and the upper lumbar area of the back, and there was reddening of the nipples.
• There were two partial thickness skin tears each approximately one centimetre long at the base of the vagina that were exquisitely tender. The tears were within recent days, and probably within the previous 24 hours.
• There was tenderness on each side of the vulva.

27 Dr Magee expressed the opinion that the presence of the partial thickness skin tears, and tenderness in the vaginal fourchette, suggested recent blunt force penetrative trauma. Tenderness and redness of SM's nipples may have been caused by a variety of factors, including trauma from suction, biting, skin infection, skin condition or abrasion. In cross-examination, Dr Magee agreed that all the injuries, which she observed on SM, could have been sustained by consensual sexual activity between her and the applicant.

28 Detective Senior Constable Andrew McDonough, who was then stationed at the Fawkner Sexual Offences and Child Abuse Unit, gave evidence as to an interview that he had with SM at 5.16 pm on 31 July. He took a 'panic description' from her as to what happened. That description is basically consistent with the evidence given by SM, save that she stated to McDonough that, after the applicant had performed the alleged acts in the bedroom, she persuaded the applicant to let her go. When she went to leave, he insisted she remain. So they went outside the house for a cigarette. He then took her back to the bedroom, where he forced his hand down her pants and tried to pull her top up, biting her nipples and neck.

29 The informant, Detective Senior Constable Dominica Hunkin, gave evidence as to the recorded interview conducted with the applicant commencing at 6.16 pm on 31 July. In that interview, the applicant denied the allegations by SM that were put to him. In addition, he expressly denied that there was any contact, including sexual contact, between himself and SM on that day. He said that after she attended at his house, they went to the kitchen, and then to the veranda, where they talked. SM went inside twice to go to the toilet. Otherwise, they remained seated outside. Ultimately (he said) SM 'left and said bye normally'. He confirmed that that was not the first time that he had sat with SM. He said that they had sat together more than ten times to talk about the problems that he had with his wife. He expressly denied that while SM was at his house he touched any part of her body.

30 As we stated, the first ground of appeal is that a substantial miscarriage of justice resulted from the failure of counsel for the applicant at trial to adduce good character evidence on behalf of the applicant.[1] It is common ground that the applicant does not have any previous convictions. The first ground of appeal concerns the failure of trial counsel to adduce evidence to that effect.

31 In support of ground 1, the applicant relies on an affidavit sworn by his trial counsel. In that affidavit counsel deposed that, having reconsidered the matter, he believes that he should have adduced evidence that the applicant did not have previous convictions and sought a direction from the judge to the jury in relation to that evidence.

32 It was submitted on behalf of the applicant that there was no forensic advantage to obtain by not calling such evidence. On the contrary, the failure to adduce that evidence deprived the applicant of evidence of his good character, and of a direction to the jury as to the relevance of that evidence. The failure was of some consequence, because the jury was confronted with two diametrically opposing versions of what occurred between the complainant and the applicant at his house, and thus the case was essentially one of 'word against word'. Further, it was submitted, that SM had been permitted to give evidence - in recounting her complaint to VF - of acts that intimated 'bad character' on behalf of the applicant. In those circumstances, it was submitted that the failure to adduce the evidence of the applicant's lack of previous convictions deprived him of a real chance of acquittal, and thus resulted in a substantial miscarriage of justice.

33 In response, counsel for the respondent submitted that, in order to succeed, the applicant must demonstrate that there is a significant possibility that the failure of trial counsel to adduce the evidence, of the applicant's lack of previous convictions, affected the outcome of the trial. It was submitted that the prosecution case was strong, such that the outcome of the trial would not have been different had the evidence been adduced. In particular, it was common ground at trial that SM had acted as mediator between VF and the applicant in relation to their ongoing marital disputes. It was the applicant who initiated contact with SM on 31 July. The forensic evidence, including that of Dr Magee and of the forensic scientist Louise Brown, provided objective independent support for the allegations made by SM. In addition, SM's disclosure to her sister VF, shortly after the incident, is consistent with SM's account that she was raped. On the other hand, the account given by the applicant to VF on 18 August is inconsistent with his denial to the police, in his record of interview, that no sexual contact took place between himself and SM. Indeed, that account, given by the applicant to VF, was so implausible, that the applicant's counsel, at trial, sensibly conceded to the jury that in that account the applicant '... isn't really getting close to having told the truth about what actually happened on 31 July'. In those circumstances, it is submitted that there is not a significant possibility that the failure to adduce the evidence of good character on behalf of the applicant affected the outcome of the trial.

34 The principles, relating to cases in which there has been a failure to adduce relevant evidence such as character evidence on behalf of an accused at trial, have been considered in a number of recent decisions, including the decisions of this Court in De Silva v The Queen,[2] Clay v The Queen,[3] Saw Wah v The Queen,[4] Bishop v The Queen,[5] Sharma v The Queen,[6] Knowles v The Queen,[7] and the decision of the High Court in TKWJ v The Queen.[8] Those principles are now well established, and may be summarised for the purposes of this case as follows:

(1) The ultimate question is whether the failure of defence counsel to adduce the good character evidence resulted in a substantial miscarriage of justice.[9]

(2) In determining that question, it is relevant (and indeed important) to ascertain whether the failure was the result of a decision at trial to obtain a forensic advantage by not adducing the evidence. Ordinarily, an accused will not be considered to have been deprived of a chance of acquittal that is fairly open, if the relevant failure is due to an informed and deliberate decision not to pursue a particular course at trial, in order to obtain a forensic advantage.[10]

(3) The question, whether the process failed due to the failure of counsel to call such evidence, is to be determined objectively, by considering whether the failure to call the evidence was capable of being explained on the basis that the course was taken to obtain a forensic advantage.[11]

(4) However, that rule does admit of exceptions. In particular, in an appropriate case, an explanation, given by counsel as to the course followed, might assist in determining the objective inquiry as to whether the course taken at trial was capable of a rational explanation.[12]

(5) The question, whether defence counsel's failure to lead good character evidence on behalf of the accused resulted in a substantial miscarriage of justice, is determined by asking whether there is a significant possibility that the failure affected the outcome of the trial.[13] Put differently, the question is whether the failure to call the evidence deprived the accused of a chance of an acquittal that was fairly open.[14]

35 The question, whether the failure of trial counsel to adduce evidence as to the applicant's good character could be attributed to a decision at trial to obtain a forensic advantage, does not admit of a simple answer. Viewed purely from an objective perspective, the good character evidence available to the applicant was particularly limited, for reasons we will shortly discuss. By adducing it, and seeking to rely on it, the defence might be seen to have been somewhat grasping at straws.

36 The position is made more complex by the explanation proffered by trial counsel. In his affidavit, counsel deposed that, having reconsidered the issue, he believes he should have adduced that evidence and sought a direction relating to it. That affidavit thus provides no explanation why that course was not taken at trial. In an email to the Court, counsel elaborated on his explanation, stating that he was concerned that during the trial the applicant had been served with further charges of offending (of a non-sexual nature) in relation to the complainant. Thus, it would seem that he was concerned that if he sought to ventilate the applicant's good character, evidence of the conduct underpinning the further charges might have been adduced on behalf of the prosecution. On that basis, it would seem that trial counsel did make a decision, and his reason not to adduce the good character evidence may not be attributed to oversight.

37 Ultimately, it is not necessary for us to decide whether the failure to call that evidence is explicable on the basis of a rational decision to achieve a forensic advantage on behalf of the accused. Assuming that no such decision was made by trial counsel, we are not persuaded that, in the circumstances of this case, the applicant was thereby deprived of a chance of an acquittal that would otherwise have been open to him.

38 Ordinarily, good character evidence is regarded by criminal lawyers as being helpful material in support of the case of an accused person. Such evidence is admissible and relevant because it bears directly on the likelihood that the accused committed the offence charged. In addition, the accused is entitled to rely on evidence of good character to support the credibility of evidence that he has given in court, or the credibility of statements that he has made out of court. Almost invariably, juries are directed that an accused is entitled to rely on such evidence for both purposes.[15]

39 Thus, a failure to adduce character evidence on behalf of an accused does deprive an accused of evidence that might assist in the defence of his or her case. Nevertheless, a failure to call such evidence does not necessarily mean, in each case, that there has been a substantial miscarriage of justice. Clearly, each case must depend on its own particular facts and circumstances.

40 For that reason, a review of the decisions of this Court in other cases, in which there has been a similar failure, is of only limited assistance. Nevertheless, it is worthwhile to refer, briefly, to those decisions.

41 In Sharma v The Queen, the applicant was found guilty of three counts of indecent assault and seven counts of rape. The applicant and the complainant had had consensual sexual intercourse three times before the date of the offence, the last occasion being one day before the alleged offences. The applicant was a medical practitioner without previous convictions. He did not give evidence. In his record of interview, he told the police that he and the complainant were in a relationship, and he denied raping her. At his plea hearing, defence counsel called extensive evidence of his good character. That evidence included eight character references by general practitioners and specialists, and other written references by two medical receptionists, a medical practice manager, the chief executive officer of an aged care facility, six of his patients, and his fiancé. Unsurprisingly, the sentencing judge noted the 'powerful evidence' as to the applicant's professional standing and reputation, in the course of passing sentence on him. There was no reason why that evidence was not called on the trial. On appeal, this Court held that, in the circumstances of the case, the failure to call the evidence deprived the applicant of a chance of an acquittal, although the court considered that the case was '... very close to the line'.[16]

42 In De Silva v The Queen, the applicant was convicted of a number of sexual offences against a minor. The applicant gave evidence. On appeal, affidavit material filed on his behalf demonstrated that there was a 'wealth of character evidence' that he had available to call.[17] There was no legitimate forensic reason for not calling the evidence. On appeal, it was considered that the evidence could have made a difference to the jury's assessment of his credibility and thus of his guilt. That view was reinforced by the question asked by the jury, during deliberation, 'what constitutes a hung jury?'.

43 In Saw Wah v The Queen, the accused was convicted of child sex offences. Good character evidence, available to him, was not adduced, because the trial judge would have permitted the prosecution to lead evidence of his traffic offences. The accused gave evidence. In the circumstances, the court considered that there had been a miscarriage of justice.

44 In the present case the circumstances are quite different. Of course, that does not mean that, by virtue of those differences, the applicant has not made out the first ground of appeal. The decisions of this Court, in cases such as those to which we have referred, are, at best, only useful guides as how the court has come to a conclusion that there has been a substantial miscarriage of justice. Ultimately, the question which must be determined is whether, on the facts of this case, the applicant has demonstrated that, because of a failure to call the character evidence, he was deprived of a chance of an acquittal that was fairly open to him.

45 In the circumstances of this case, we are not persuaded that the applicant has demonstrated that he has been deprived of such a prospect of acquittal. First, any good character evidence that might otherwise have been called would have been particularly limited. The offence occurred only two months after the applicant had arrived in Australia. The trial took place 14 months later. In those circumstances, any evidence that he had not incurred a previous conviction in that period of time would have been of limited value. No character evidence was called on the plea, no doubt due to the fact that the applicant only had a limited circle of acquaintances during his short time in Australia. While it may have been desirable to adduce the evidence as to the lack of previous convictions of the applicant, nevertheless, in those circumstances, such evidence would have been of limited value.

46 Secondly, any advantage that might have been derived by the applicant, by leading the evidence as to his lack of previous convictions, would have been affected by two important considerations.

47 In particular, the evidence would have provided little assistance to the applicant in bolstering the credibility of the out of court account that he gave to VF on 18 August. That account was wholly inconsistent with the version of events given by the applicant to the police in his record of interview, in which he untruthfully denied that there had been any sexual contact between himself and SM on the day of the offence. Moreover, the account given by the applicant to VF was manifestly implausible, as, indeed, VF was able to demonstrate by the manner in which she challenged him when he narrated it to her. Thus, as counsel for the respondent has observed, in his final address to the jury, counsel for the applicant sensibly conceded that the account, given by the applicant to VF, defied credulity. He sought to explain away that account on the basis that at that time the stakes for the applicant were impossibly high in terms of trying to save his marriage.

48 Thus, while, in a sense, the case may be described as a 'word against word' case, an examination of the transcript reveals that, in reality, the critical question was whether the jury was satisfied, on the evidence of SM, and the supporting Crown evidence, that the sexual contact between the accused and SM had taken place without SM's consent. The resolution of that question depended, substantially, on the jury's assessment of the credibility of SM, rather than on any weight to be attributed to the out of court statement made by the applicant to VF.

49 Secondly, on the facts of this case, it is to be doubted whether the lack of any previous conviction by the applicant, during the short time in which he had been in Australia, bore in any meaningful way on the probability of his having committed the offences with which he was charged. There was no suggestion at trial that the crime was premeditated, or that the applicant had indulged in any predatory conduct. Rather, it would seem that the prosecution case was that the applicant, affected by alcohol, and while in an emotional state, became carried away when his sister in law demonstrated some sympathy for his plight. In such a case, it is doubtful that the character evidence would have made it less likely that the applicant had acted in that way.

50 Finally, as submitted by counsel for the respondent, the account given by SM gained substantial support from independent objective evidence. It was common ground that SM had acted as the mediator between VF and the applicant in their continuing matrimonial difficulties. It was the applicant who asked SM to attend at his home on the day of the offences. The fact that SM acceded to that request was consistent with her role as a mediator in their disputes.

51 The evidence of Dr Magee, as to her findings on her examination of SM, is consistent with SM's evidence. SM's evidence as to the digital rape (count 2) is also supported by the evidence of the forensic scientist, Louise Brown, as to the finding of SM's DNA on the fingernail swabs taken from the applicant. The finding of SM's DNA on the swabs taken from the applicant's penis supports her evidence on count 3 (attempted rape). In addition, the attempts made by SM on the day of the offences to contact VF, and her disclosure to VF on the day that she had been raped by the applicant, provide further support for the prosecution case.

52 In those circumstances, the evidence as to good character, which was not called, would have been of particularly limited scope. On the view most favourable to the applicant, it would have provided only a small measure of support to the credibility of the account that he gave to VF on 18 August. Similarly, it would have provided little assistance to the applicant on the question of the probability of the commission by him of the offences with which he was charged. On the other hand, the case against the applicant was strong. The evidence of SM was supported by independent objective evidence. In those circumstances, we are not persuaded that the failure to adduce the evidence deprived the applicant of a chance of acquittal that was otherwise fairly open to him. We are therefore not satisfied that the failure resulted in a substantial miscarriage of justice. Ground 1 of the application must therefore fail.

Ground 2 (verdicts are unreasonable): counsel submissions

53 The second ground of the application is that the verdicts were unreasonable or could not be supported having regard to the evidence.[18]

54 In support of that ground, it was argued on behalf of the applicant that the prosecution case depended entirely upon the jury accepting the reliability and credibility of the evidence of SM. It was submitted that there were three aspects in which SM's account was impugned, and that, collectively, those matters were such that the jury could not reasonably have been satisfied of the guilt of the applicant.

55 First, it was submitted that there was a 'timing problem' in the account given by SM. In her evidence, and in cross-examination, she stated how long each of the events, which occurred after her arrival at the applicant's home, took place. Those time estimates totalled one hour. On the other hand, there is independent evidence that she attended the applicant's house at 12.00 pm, and did not depart until 2.00 pm.

56 Secondly, it was submitted that there was a 'chronological problem' with the account given by SM. In her evidence, she stated that all the offending occurred during one incident, which took place after they had re-entered the house after spending some time talking and smoking on the back decking. On the other hand, when she recounted the alleged incident to Detective Senior Constable McDonough on the day of the offences, she alleged that after the applicant and she were in the kitchen area, they went to the bedroom, where the applicant sexually assaulted her. She said that she went to leave, but the applicant grabbed her. She then went outside for a cigarette. The applicant then took her back into the bedroom, where a further sexual assault occurred.

57 Thirdly, it was submitted that there were multiple inconsistencies in the complainant's account. She told Dr Magee that she had blacked out, but she did not tell the police or the jury that that had occurred. Secondly, she had not told Dr Magee that she had been bitten on the neck, and there was no independent evidence of any injury reflecting that that occurred. Thirdly, when asked by VF, she denied that any penetration had occurred, which is consistent with the account that she gave in her evidence. Fourthly, she told the jury that the applicant had grabbed the back of her hair at the commencement of the first assault, but she did not say that to the police when she made her statement. Fifthly, she told the jury that the applicant used multiple fingers to penetrate her vagina, but she told the police that he had used one finger.

58 It was submitted that the combination of those matters is such as to substantially and irreparably damage the reliability and the credibility of the account given by SM. Accordingly, it was submitted that the jury was bound to entertain a reasonable doubt as to the guilt of the applicant.

59 In response, it was submitted on behalf of the respondent that the timing issue, relied on by counsel for the applicant, is artificial. In the distressing circumstances in which the complainant found herself, it is not surprising that she does not accurately recall for how long each event, related by her, took place. It was further submitted that the alleged inconsistency, between the account given by SM in her evidence, and that given to Detective Senior Constable McDonough, does not reflect on her reliability. The evidence of SM was supported by independent medical and forensic evidence. The complainant's repeated attempts to telephone VF throughout the day support her evidence that she wanted to see and speak to VF, and that she was trying to persuade her to return home. That evidence is inconsistent with the conduct of a person who is trying to manipulate a sexual encounter with her sister's husband.

60 It is further submitted that the 'multiple inconsistencies', relied on by the defence, are of no significance. In particular, juries are well aware that no witness is perfect, and that it is inevitable that there will be minor discrepancies in the account given by any witness, particularly a witness to a traumatic incident.

61 The second ground is brought under s 276(1)(a) of the Criminal Procedure Act 2009, which requires the Court of Appeal to allow an appeal if the appellant satisfies the court that the verdict of the jury is 'unreasonable or cannot be supported having regard to the evidence'.

62 The principles, that apply to such a ground, have been restated on a number of occasions since the High Court decision in M v The Queen.[19] In Libke v The Queen,[20] Hayne J (with whom Gleeson CJ and Heydon J agreed) stated the test in the following way:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[21]

63 In R v Klamo,[22] this Court noted that the approach, that is required of appellate courts considering such a ground of appeal, involves the following steps:

(1) The Court of Criminal Appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(2) In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.

(3) In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

(4) It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[23]

64 Having reviewed the evidence, we do not accept that the jury was obliged to entertain a reasonable doubt about the reliability and credibility of the evidence of SM. On the contrary, that evidence did not stand alone, but, as we have earlier stated, was well supported by other evidence in the trial, including significant independent and objective forensic evidence.

65 The basic claim by SM, that the applicant had raped her, was supported by the conduct of SM shortly after she left the applicant's home, when, first, she texted her sister VF, and then, in a conversation later, she revealed that the applicant had raped her. Such conduct is consistent with the reaction of a woman who had been raped by her brother in law. Equally, it is unlikely that, if SM had had consensual sexual relations with the applicant, she would have reacted in the manner in which she did.

66 Further, as already pointed out, SM's basic account is well supported by the independent forensic evidence. The DNA evidence, and the medical evidence, provide support for the basic allegations made by her as to the type of sexual assaults committed by the applicant on her. The evidence of Dr Magee provides support that that contact was non-consensual. In addition, the complainant's evidence that she had recently had a hysterectomy, and that she found sexual penetration to be painful, rendered it less likely that she would have initiated sexual contact between herself and the applicant.

67 The criticism made of SM's evidence, relating to the 'timing' issue, was of little moment. A jury would appreciate that in the circumstances portrayed by SM, it is unlikely that she would have a precise and accurate recall of the duration of each of the events leading up to and including the commission of the offences at the applicant's home.

68 The point made on behalf of the applicant, relating to the sequence or 'chronology' of events, is, perhaps, of greater merit. However, it must be borne in mind that, on SM's account, she had been through a most traumatic experience at the time at which she spoke to Detective Senior Constable McDonough. It is understandable that, at that time, she might have confused the order in which some of the events, that she related, had occurred.

69 Most of the inconsistencies in SM's account, relied on by the applicant, are relatively minor. Few truthful witnesses have a perfect recollection. Again, as we stated, on SM's account, she had been subjected to a most traumatic episode of sexual assaults. In those circumstances, a jury would well understand that it was likely that there would be minor discrepancies between various accounts that she had given in relation to her experiences. The applicant was cross-examined in some detail about a number of the alleged inconsistencies. She was able to provide credible responses to each of the propositions put to her in that line of questioning.

70 It must be borne in mind that, in a case such as this, the jury had the considerable advantage of observing SM in the witness box. In particular, the jury had a firsthand opportunity to assess the demeanour of SM while she was under cross-examination, and while a number of the alleged discrepancies were put to her by counsel for the applicant.

71 Taking those matters into account, we are not satisfied that the verdicts of the jury were unreasonable, or could not be supported having regard to the evidence. Rather, and to the contrary, we consider that the case against the applicant was strong. It is evident that the jury, having had the opportunity to assess the demeanour of SM, and the manner in which she gave her evidence, was satisfied beyond reasonable doubt as to the truthfulness and reliability of the allegations made by SM against the applicant. For those reasons, ground 2 of the application must fail.

Application for leave to appeal against sentence

72 As we stated, the applicant was sentenced to a total effective sentence of 5 years' imprisonment, with a non-parole period of 3 years. He seeks leave to appeal against sentence on the ground that the sentences imposed for each of the three charges, and the orders for cumulation, were manifestly excessive; that they were outside the range of sentences reasonably open in the circumstances of the offence and the offender; and that they resulted in a total effective sentence and non-parole period that were manifestly excessive.

Charge 1 - Indecent Assault[24] (Maximum Penalty: 10 years imprisonment)

Charge 2 - Rape[25] (Maximum Penalty: 25 years imprisonment)

Charge 3 - Attempted Rape[26] (Maximum Penalty: 20 years imprisonment)

74 In her reasons for sentence, the judge noted that the applicant had had a very difficult background, having been brought up in Lebanon during the turbulent civil war in the 1970s. Her Honour noted that the applicant had worked for the government health department for a period of 16 years. A letter was tendered from the Department of Immigration indicating that on the completion of the non-parole period of any sentence, the applicant would be deported to Lebanon. The judge also took into account the report of a clinical forensic psychologist, that the applicant does not have any symptoms of a psychosexual disorder, and that his offending appears to have been contextual rather than indicative of predatory behaviour.

75 The judge rejected the submission made on behalf of the applicant that there was no violence involved. Her Honour observed that the offending involved a breach of trust reposed in him by SM who had gone to his assistance that day.

76 In this application, it was submitted that the sentences were manifestly excessive, taking into account the applicant's difficult background, his employment history, his lack of previous convictions, the contextual nature of the offending, his efforts at rehabilitation while on bail, the hardship to him resulting from the separation from his children, the fact that he would be deported at the end of his sentence, and a character reference given by VF on his behalf.

77 In response, it was submitted on behalf of the respondent that the sentences were well within range, and gave appropriate weight to the mitigating factors relied on on behalf of the applicant.

78 In order to establish the ground relied on, it must be established on behalf of the applicant that the sentence was imposed on him was wholly outside the range of sentencing options otherwise available to the sentencing judge. As has been observed on a number of occasions, a complaint, that a sentence is manifestly excessive, is difficult to establish.

79 In our view, taking into account the mitigating circumstances relied on by the applicant, it has not been demonstrated that any of the individual sentences, or the period of cumulation between the sentence imposed on count 2 and the sentence imposed on count 3, are manifestly excessive. The offending in this case was quite egregious. It involved a flagrant breach of trust, in circumstances with which the applicant's sister in law had, in an exercise of compassion, sought to assist him in his time of distress. As observed by the sentencing judge, the offending involved a degree of violence that is entirely unacceptable. Further, when SM made it abundantly clear that she was resisting his approaches, the applicant persisted, on repeated occasions, in trying to have sexual contact with her. The ordeal, to which he subjected her, was humiliating and traumatic.

80 In a case such as this, the considerations of denunciation, general deterrence and specific deterrence are of significance. Taking those matters into account, we are not persuaded that any of the sentences, the period of cumulation, the total effective sentence, or the non-parole period, could properly be characterised as being manifestly excessive. Accordingly, the application for leave to appeal against sentence should fail.

81 For the foregoing reasons, the applicant has not succeeded on either ground on which he seeks leave to appeal against conviction, nor on the ground upon which he seeks leave to appeal against sentence. Accordingly, the application for leave to appeal against conviction, and the application for leave to appeal against sentence, should each be refused.

[1] Different counsel appeared for the applicant in his application for leave to appeal against conviction and sentence than counsel who represented the applicant at trial.

[2] [2013] VSCA 339; (2013) 236 A Crim R 214.

[3] [2014] VSCA 269.

[4] [2014] VSCA 7; (2014) 239 A Crim R 41.

[5] [2013] VSCA 273; (2013) 39 VR 642.

[6] [2011] VSCA 356.

[7] [2015] VSCA 141.

[8] [2002] HCA 46; (2002) 212 CLR 124.

[9] Criminal Procedure Act 2009 (Vic) s 276.

[10] TKWJ v R [2002] HCA 46; (2002) 212 CLR 124, 133 [32] (Gaudron J with whom Gummow J agreed).

[11] TKWJ v R [2002] HCA 46; (2002) 212 CLR 124, 131 [17] (Gleeson CJ), [33] (Gaudron J), [107] (Hayne J); Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, 165 [9]; Knowles v The Queen [2015] VSCA 141, [131].

[12] Knowles v The Queen [2015] VSCA 141, [143]-[145].

[13] TKWJ v R [2002] HCA 46; (2002) 212 CLR 124, 150 [89] (McHugh J).

[14] Sharma v The Queen [2011] VSCA 356, [51]; De Silva v The Queen [2013] VSCA 339; (2013) 236 A Crim R 214 [22]; TKWJ v R [2002] HCA 46; (2002) 212 CLR 124, 132 [26] (Gaudron J).

[15] Saw Wah v The Queen [2014] VSCA 7; (2014) 239 A Crim R 41, [41] (Weinberg JA).

[16] Saw Wah v The Queen [2014] VSCA 7; (2014) 239 A Crim R 41, [44].

[18] Criminal Procedure Act 2009 s 276(1)(a).

[19] (1994) 181 CLR 487.

[20] [2007] HCA 30; (2007) 230 CLR 559.

[21] Ibid, 596-7; see also SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, [11]-[14] (French CJ, Gummow and Keifel JJ); R v Nguyen [2010] HCA 38; (2010) 271 ALR 493, 500 [33] (Hayne, Heydon, Crennan, Keifel and Bell JJ).

[22] [2008] VSCA 75; (2008) 18 VR 644.

[23] Ibid, 653-4 [38] (Maxwell P, Vincent and Neave JJA); see also O'Reilly v R [2015] VSCA 19, [22]; Meade v R [2015] VSCA 171, [11]; King v R [2014] VSCA 107, [46] (Weinberg JA).