1 The applicants Akrem Jabir and Nur Ahmed were tried with Jabir's brother, Nasser Jabir, in the County Court on a presentment which alleged five counts of rape. The offences were alleged to have occurred on 6 January 2007 at a house in Kingsville. The complainant was a woman in her early thirties who had gone there with the three accused and another man, all of whom she had met earlier the same evening at a city nightclub.

2 The five counts on which the men were presented and the jury's verdicts on those counts were as follows:

Digital/vaginal rape of the complainant by Akrem Jabir (his brother, Nasser Jabir, as an accessory)

Penile/vaginal rape of the complainant by Akrem Jabir -

Penile/anal rape of the complainant by Akrem Jabir -

Penile/vaginal rape of the complainant by Nur Ahmed -

Digital/anal rape of the complainant by Nur Ahmed -

Thus, Akrem Jabir received a total effective sentence of 7 years' imprisonment with a non-parole period of 5 years and Nur Ahmed received a total effective sentence of 5 years with a non-parole period of 3 years. Nasser Jabir was acquitted of the only count relating to him (count 1).

3 On the evening of 5 January 2007, the complainant and some female friends went to a series of nightclubs or bars in the city and nearby suburbs. At about 1.45am the following morning they arrived at premises known as 'Publicity' in the city. There the complainant was introduced to Akrem and Nasser Jabir as well as other male friends of theirs.

4 Whilst the complainant was at Publicity, some interaction occurred between her and Nasser Jabir as a result of which she eventually left with him, Akrem Jabir, Nur Ahmed and another male. They went to a house in Geelong Road, Kingsville. At the house, the complainant and the others drank vodka and some of them smoked a joint of cannabis. Akrem Jabir began kissing the complainant on the shoulder - an advance which she rejected. Subsequently she felt dizzy and told Nasser Jabir that she needed to lie down. Some indeterminate time later, she woke up on a bed in a bedroom with Nasser Jabir on top of her, having sexual intercourse with her. This intercourse, she said, was consensual although unplanned.

5 At about the same time Akrem Jabir entered the bedroom and, in the presence of his brother Nasser (who was charged as an accessory), allegedly digitally penetrated the complainant's vagina without her consent. This act formed the basis of count 1 of which both Akrem and Nasser Jabir were acquitted.

6 The complainant said that the next thing she remembered was Akrem Jabir on top of her and his inserting his penis into her vagina. He was holding her hands behind her back so that she could not move. She told him to stop. She did not consent to any of this activity. This allegation formed the basis of count 2 on the presentment. She said that a little while later she felt a pain in her anus which felt 'like a knife'. She said that she was lying on her side on the bed at this time and could feel Akrem Jabir entering her anus with his penis. She said that she thought she was coming in and out of consciousness. She did not consent to this action by Jabir. On medical examination later, a 5mm tear was found in the complainant's anal region. This formed the basis of count 3 - anal rape by Akrem Jabir.

7 The next thing the complainant remembered was Nur Ahmed being in the room on top of her placing his penis in her vagina; activity to which she did not consent. She told him to stop. She said his face was close to her head and he held her hands on the bed. This penetration formed the basis of count 4 on the presentment - vaginal rape by Nur Ahmed.

8 The complainant gave no evidence in support of count 5 on the presentment - a count of digital anal penetration by Nur Ahmed. The Crown case relied, instead, on an admission by Ahmed in his record of interview that he digitally penetrated the complainant's anus, although he said he did so at her request. He told police that this activity and his penile penetration of the complainant's vagina referred to in count 3 was all consensual. He was found not guilty by the jury on count 5.

9 As well as evidence of the events described from the complainant, the Crown relied upon evidence from her friends as to their activities that night and as to complaints made to them by her of having been raped. There was significant inconsistency between many of the accounts of the night's events given by the complainant - a fact given considerable emphasis by the trial judge in his charge to the jury.

10 There was also evidence of DNA samples obtained from examination of the complainant's vaginal and anal areas and her clothing. Having regard to the cases of each of the applicants which conceded penile/vaginal intercourse with the complainant, the only aspect of the DNA evidence now relevant is that which affected count 3, the allegation of penile/anal rape against Akrem Jabir. An anal swab taken from the complainant provided a mixture of DNA from at least two individuals. Akrem Jabir could not be excluded as the contributor of the major component and the complainant could not be excluded as a source of the minor component of that sample. Nur Ahmed and Nasser Jabir could be excluded as contributors to this mixture of DNA.

11 A forensic physician, Dr Morgan, who examined the complainant found the anal tear already referred to and took anal samples for DNA testing. He said that having regard to the physiology of the area from which he took the anal swab he would not have expected the DNA to have found its way up into the area of the sphincter without some assistance. However, he conceded in cross-examination that it was possible that Akrem Jabir's semen could have been transferred to the complainant's anal area from her vaginal area by the actions of Nur Ahmed during or after he, Ahmed, had penile/vaginal intercourse with her.

12 Neither of the applicants gave evidence. Their cases rested on answers to police questions in their records of interview conducted, in each case, on 11 January 2007.

13 In his interview, Akrem Jabir gave police an account of the events surrounding his and his companions' interaction with the complainant in the early hours of 6 January. He said that they all went to the Kingsville house where, whilst they were having a drink, there was a conversation about the complainant having sexual intercourse with them. He said the complainant told them her age and said that she liked 'to do it individually'. She said:

Look, I have been through this, three or four guys before. I just want to have fun with youse (sic). You look like decent guys and I just want youse (sic) one by one to have fun with me.

14 Shortly after this, she went to a bedroom in the house and was joined by Nasser Jabir. Akrem Jabir told the police that his brother was first because he had been with the complainant all night. He said that after his brother came out of the bedroom, he went in and, after confirming that the complainant was still willing to have intercourse with him, proceeded to perform that act with her. His description was that she took his clothes off and was on top of him when penetration occurred. She placed his penis in her vagina. He said: 'she was in control of me.' She was on top because an injury to Jabir's left hand restricted his movements. He did not wear a condom and the complainant did not ask him to do so.

15 Akrem Jabir said that he ejaculated partly inside and partly outside the complainant. When that occurred the complainant said: 'Can you lay there, I want more'. He denied placing his penis inside the complainant's anus at any time. He said that after he ejaculated, he took his clothes and went to the toilet. As he did so, he said the complainant said 'Who's coming?' He replied that 'Anwar' would come. 'Anwar' is another name used by the second applicant Nur Ahmed.

16 Akrem Jabir said that Ahmed came out of the bedroom after some time but the complainant remained there for 'ten to 20 minutes'. When she came out, she had her clothes on and said she wanted to go home. She accused the men of having raped her. Jabir said that the men 'freaked out', denying her allegation.

17 On a number of occasions during his interview with the police, Jabir emphatically denied raping the complainant. He asserted that everything which occurred between her and him was consensual and that what occurred was in fact penile/vaginal sexual intercourse. There was no anal intercourse or any attempt at such.

18 Nur Ahmed's interview also took place on 11 January. He told the police that after the complainant and his companions arrived at Kingsville they had some vodka and smoked a joint. One of the group, whom he referred to as 'Yonis', didn't drink but that the other four, including the complainant, drank a full bottle of vodka between them. Ahmed was an occupant of the Kingsville house and said to the complainant that if she wanted to relax she could go into his bedroom. He said that Akrem Jabir's brother, Nasser, took the complainant to the bedroom and stayed with her for a while. Subsequently he returned to the living room and said to the others 'if you guys wanted to have sex, the girl wouldn't mind having sex'. Akrem Jabir then went into the bedroom and subsequently returned to the others. Ahmed told the police that he asked Jabir if he had sex with the complainant to which he replied: 'Yes'. He, Ahmed, then went into the bedroom and began kissing the complainant. He said he kissed her breasts and had sex with her. He said 'she even asked me to finger her arse'.

19 Ahmed said that when he went into the bedroom, the complainant was naked and was lying on his bed. She said he could take his clothes off. They had a conversation about the size of his penis whilst he was kissing her breasts. He said the complainant asked him if he had a condom. He said he did and he put it on. She did not resist at all. He said while he was having intercourse with the complainant vaginally, he was '... actually fingering her as well, I think.' He said that after intercourse had proceeded for five to seven minutes, he ejaculated. Ahmed said that during the sexual activity between him and the complainant she seemed as if she was enjoying it.

20 Ahmed told the police that after he had had sexual intercourse with the complainant, the fourth man, 'Yonis', went into the bedroom and emerged to say that the complainant was crying. He also told the police that at one stage whilst he was having intercourse with the complainant, Akrem Jabir came into the room but left when Ahmed told him to do so. Throughout his interview, he denied raping the complainant. He asserted consistently that all sexual activity he undertook with her was consensual. He admitted inserting his finger into the complainant's anus but said that this was at her request and that he did not insert his penis.

21 Each of the applicants seeks leave to appeal his conviction. Although, originally, Nur Ahmed also sought leave to appeal his sentence, that application was abandoned by his counsel on the hearing before this Court. It is convenient to set out each applicant's grounds of appeal as they were finally settled before discussing those common to both applicants and those relied upon by the applicants individually.

1. The learned judge erred in law by giving a direction on the meaning of 'free agreement' within the meaning of section 37(1)(a) of the Crimes Act 1958 (Vic) ('the Act') in circumstances where such a direction was irrelevant to the facts in issue in the proceeding in disregard of the prohibition on the giving of such a direction contained in section 37(2) of the Act.[1]

2. The learned judge erred in law by failing to comply with:

(a) the common law obligation; and

(b) the mandatory requirement prescribed by section 37 of the Act,

to relate the directions of law to the facts in issue in the case by failing to remind the jury of those passages in the evidence (including the record of interview) which bore upon the issues of penetration, consent and the state of mind of the applicant.

1. The learned judge erred in law by failing to give a direction that even if the jury concluded that the applicant had held an unreasonable belief that the complainant was consenting to his sexual acts, he would still be entitled to acquittal if the Crown failed to disprove that his belief, although unreasonable, was genuinely held at the time of penetration.
2. The learned judge erred in law by failing to give any direction on the dangers of drawing any inference of penile/anal penetration in respect of Count 3 merely on the basis of equivocal DNA evidence in the light of the possibility of DNA 'transference' as conceded by the Crown's expert, Dr Morgan, whose concessions in cross-examination were not summarised for the benefit of the jury thereby giving rise to a serious risk of a miscarriage of justice.

1. The learned judge erred in law in failing to direct the jury that, in respect of Count 3, the DNA evidence on the anal swab could not be regarded as corroborative evidence unless the Crown excluded the possibility of DNA 'transference' beyond reasonable doubt.
2. The learned judge erred in law in failing to give any direction on the dangers of using the DNA evidence to convict [Akrem Jabir] having regard to the expert evidence led at trial and having regard to the manner in which the Crown put its case against [Nur Ahmed] in respect of Count 5.

1. The verdicts of the jury on Counts 2 and 3 are unsafe and unsatisfactory having regard to the matters contained herein. It was not reasonably open to the jury to convict [Akrem Jabir] on Counts 2 and 3 having regard to the totality of evidence led at trial.
2. An aggregate of the errors contained in grounds 1 to 9 caused a serious miscarriage of justice.

1. The verdict is unsafe and unsatisfactory in the sense that no reasonable jury could have been satisfied beyond reasonable doubt of the guilt of the applicant.
2. The verdict of guilty is unsafe and unsatisfactory in that it is inconsistent with the verdict of not guilty on Count 5.
3. The verdict of guilty is unsafe and unsatisfactory due to a combination of the above and also in combination with the verdict of not guilty on Count 1.
4. The learned trial judge failed to direct the jury on the issue of motive to complain.

5. The learned trial judge erred in law by failing to comply with:

(a) the common law obligation; and

(b) the mandatory requirement prescribed by s 37 of the Act;

to relate the directions of law to the facts in issue in the case by failing to remind the jury of those passages in the evidence (including the record of interview) which bore upon the issues of penetration, consent and the state of mind of the applicant: see R v Gose [2009] VSCA 66; R v Yusuf [2005] VSCA 69.

1. The learned trial judge erred in law by failing to give a direction, consistent with R v Zilm [2006] VSCA 72, that even if the jury concluded that the appellant had held an unreasonable belief that the complainant was consenting to his sexual acts, he would still be entitled to an acquittal if the Crown failed to disprove that his belief, although unreasonable, was genuinely held at the time of penetration: see R v Zilm (supra).

24 The issue of whether the complainant consented to the acts of sexual penetration alleged against the applicant as well as his co-applicant was central to the trial. It was therefore necessary that the term 'consent' be defined and explained to the jury. The acknowledgement by the complainant that she had consensual intercourse with Nasser Jabir immediately prior to the acts founding the counts on the presentment required the trial judge to give a direction under s 37AAA(e)(iii) of the Crimes Act 1958 (the Act). It was relevant to a fact in issue, namely consent. Not surprisingly, this ground was but faintly pressed as it is without substance.

Jabir - Ground 2 / Ahmed - Ground 5

25 Counsel for Akrem Jabir made a number of submissions in support of the contention that the learned judge erred in law by failing to comply with the common law obligation, or the mandatory requirements of s 37AA of the Act, to relate the directions of law to the facts in issue in the case by failing to remind the jury of those passages in the evidence (including the record of interview) which bore upon the issues of penetration, consent and the state of mind of the accused. Counsel for Nur Ahmed adopted the same arguments.

26 It was submitted on behalf of Akrem Jabir that the judge's direction relating to consent and free agreement all dealt with the state of mind of the complainant and were broadly speaking favourable to the Crown case and that this created a grave imbalance, there being no countervailing directions with respect to reasonableness and the state of mind of the applicant.

27 The argument for the applicants in relation to the suggested failure of the judge to comply with the common law obligation to relate the questions of law to the facts in issue can be readily explained by reference to what was and was not contained in the judge's charge.

28 The judge directed the jury as to the elements of the crime of rape that the prosecution had to prove beyond a reasonable doubt and it was not suggested that there was any error in this regard. His Honour said that the first element was that the applicant sexually penetrated the complainant in the way alleged. The second element was that the sexual penetration was intentional. The third element was that the complainant did not consent to the sexual penetration. His Honour said that the fourth element related to the accuseds' states of mind about the complainant's consent and that the prosecution had to prove that at the time of sexual penetration the applicant was either aware that the complainant was not consenting or was aware that she might not be consenting and determined to penetrate her whether she was consenting or not.

29 In relation to count 2, the judge said that Akrem Jabir admitted that penile vaginal penetration occurred but 'he says it was with consent, so that is a critical issue that I will come to in a minute'. In relation to count 3, the judge said that Jabir denied anal penetration. In relation to count 4, the judge said that Nur Ahmed agreed that he had penetrated the complainant's vagina with his penis:

'and he says in his interview that he was wearing a condom and that the penetration was with consent. So once again, when I come to the issue of consent, it is clear that consent is a fundamental matter in dispute concerning Count 4'.

30 Later, the judge said that the evidence was that the complainant said she manifested her lack of consent in various ways and that was the way the case was put by the Crown. The Crown case was that the complainant said that she did protest and there was physical resistance.

31 Later, on the issue of consent, the judge said, inter alia:

Concerning Count 2, I will go to the evidence that bears on consent. This of course is the allegation of penile/vaginal penetration. Once again the complainant says she did not consent. She says that Nass has left the room, and she remembered KJ, as she described him, on top of her. She said she tried to push him off and told him to stop but he did not stop. She said he held her hand behind her back so she could not remove her arms, and she was telling him to stop and get off. So that is the evidence relating to lack of consent that is relied upon by the prosecution.

Akrem Jabir says there was penile/vaginal penetration but it was nothing like this. It was consensual. You have his account of this in his record of interview which you have the CD of and the transcript, and I am not proposing to go to any of the accused's record of interview and read slabs from it, because you have heard them, you have had the transcript and you have had counsel go to each of the records of interview, so, in the context of this case, in my view it is not necessary to go to the detail. If, on concluding my charge to you, counsel urge me to do so then I will, but at the moment I do not think it is necessary and I do not propose to do it.[2]

Concerning Count 3, which is the allegation of penile/anal penetration, what is the issue on consent? Well, of course, with this particular count, of course, penetration is very much in dispute. Akrem Jabir says he did not penetrate the complainant's anus with his penis. The complainant says a little after the penile/vaginal penetration, she was on her side, although she cannot say how she got in that position. She said she did not want him to be doing what he was doing. She said she felt some pain in her anus and compared it to a knife. She said he penetrated her anus with his penis. She said her arms were pinned together, like held together, so she could not move. That is the evidence in respect of lack of consent that the Crown relied upon.

She next said in her evidence that she remembers unknown male 1 was on top of her and, as the case has developed, there does not seem to be any dispute that that is a reference to Nur Ahmed. So concerning Count 4, the allegation of penile/vaginal penetration and consent, what is the evidence? Well, in this instance, we have the evidence of Nur Ahmed and what he says in the record of interview. Mr Nur Ahmed says there was consensual penile vaginal penetration. He sought and obtained the complainant's consent for both this and for digital penetration of her anus.[3]

Once again you have the account of Nur Ahmed in the interview and I am not going to go to it.[4] [The complainant] says she remembers seeing his face on top of her and realised it was him penetrating her. She told him to stop and get off, but he did not. She said he pushed her face to the side and had her hands back on the bed. She said that she was not very strong and was telling him to stop and get off. His penis was in her vagina. So, once again you can see that she alleges that she manifested her lack of consent physically and verbally.

...

I now move to the fourth element, that is the state of mind of the accused. The fourth element relates to the accuseds' state of mind about the complainant's consent. The prosecution, I repeat, must prove beyond reasonable doubt that at the time of sexual penetration, the accused was either aware the complainant was not consenting or aware that the complainant might not be consenting. I have used the shorthand expressions.

...

Concerning Count 2, the vaginal/penile penetration, once again on the prosecution case, the complainant, the prosecution would say, has made feelings well known. During the digital penetration, she tried to push his, sorry, during the vaginal penetration, as I recall her evidence, she said she tried to push him off and told him to stop. She says he was holding her arms, accordingly the prosecution would say that is the evidence you can rely upon to establish that, if you accept that evidence, that Akrem Jabir would have been well aware she was not consenting.

Concerning Count 3, the penile/anal penetration, once again, it would be open to the Crown to rely upon the assertion that this alleged rape follows the digital and penile/vaginal rapes. Accordingly, it would be open to the Crown to argue that Akrem Jabir was well aware that [the complainant] was not consenting. Furthermore, when the anal penetration occurs, the allegation from [the complainant] was that Akrem Jabir was pinning her arms. So that is the evidence that would be relevant to determining this fourth element. Of course, Akrem Jabir says there was no anal/penile penetration.

Concerning Count 4, the penile/vaginal penetration with Ahmed, prosecution says the complainant told him to stop and get off but he did not. The complainant says he pushed her face to the side and had her hands back on the bed. She says she was not very strong and was telling him to stop and get off. Accordingly the prosecution would be entitled to argue if you accept this evidence that Nur Ahmed was obviously aware she was not consenting.

Concerning Count 5, the count of - let me just go back to Count 4, of course, Nur Ahmed says that she was consenting.

...

Concerning awareness of lack of consent each accused says he believes the sexual contact he had with the complainant was consensual. [If] [t]he prosecution cannot exclude this possibility beyond reasonable doubt, the fourth element will not be met. It is for you to determine whether the prosecution has proved that the accused had the state of mind necessary for this fourth element to be proved, so once again I am just emphasising that it is not for the accused to disprove anything, it is for the prosecution to prove beyond reasonable doubt each of these elements.

In making this determination you must consider all of the circumstances. This includes what was said or done or not said or done at the time of the alleged penetrations, as well as any relevant statements in the records of interview concerning the accused account and in particular in the context of element four the accused state of mind at the relevant time.

I draw your attention to the directions I have already referred to concerning the fact that this is a case in which there is a very stark contrast between the account alleged by the complainant concerning each count and the account of each accused. There is a real division here.

If you are unable to reject, beyond reasonable doubt, the account given by any particular accused you must find him not guilty. If you are left with a reasonable doubt that his account may be correct then you could not convict. However, if you do reject, beyond reasonable doubt, the account of any accused before you could convict you would have to go on and determine whether the elements of the count under consideration have been proved beyond reasonable doubt.

32 As against what was said to the jury by the judge, as indicated above, the following principal (and typical) passages from Akrem Jabir's record of interview were not read or directly quoted by the judge to the jury:

We're all sitting there, we're drinking. And then we're asking her just, like, you know what I mean? If we could kick it with her you know what I mean. Like, do something with her. And she's like, 'look, I am, like, 32-34 years old. I like doing whatever, that's why I came with youse. But I like to do it individually', like, one person by herself [sic], you know what I mean. 'And we're, like, cool, we're all grown here. You choose whatever you want to do. We happy with it', you know what I mean, 'nobody's gonna force you to do something you don't like'.

...

And I went to her, I said, 'hey, it's me. Akram,' you know. 'You remember what - before?' you know. And she's like, 'yeah, as long as one on one, I don't care,' you know. And we're like, 'sweet.' And then I went. Done whatever I had to do. Came out. Anwar, the same thing. He went and asked her and she said 'yes'. He went in. He did his thing. And then we went back to the lounge room, you know.

...

Before I even touch her or lay in the bed, I go, 'hey, do you know my face? Do you know who I am? Are you alright if I come here?' And she's like, 'yeah, it's fine.'

33 Similar kinds of statement were made by Nur Ahmed, concerning the relevant events and his state of mind, in his record of interview. These statements were not read or directly quoted by the judge to the jury either.

34 The issues of consent by the complainant and awareness of that consent by the applicants were quite stark, as the judge said. Both applicants based their belief upon the complainant's expressed willingness to have sex with them. It is clear from what the judge said to the jury that the jury had heard the records of interview and that the applicants' counsel had referred to relevant statements by the applicants, such as those quoted above setting out what the complainant had said and done. It seems to us that what the judge said about the defences of the applicants sufficiently related the evidence to the issues of lack of consent and the applicants' belief that the complainant had consented. There was no imbalance in the charge in circumstances where the substance of the applicants' defence was stated by the judge and the jury must have been well aware of the relevant statements in the records of interview.

35 We are fortified in that conclusion by the fact that the applicants' counsel were expressly given the opportunity to ask that the judge go to the details of the records of interview and the judge stated his preparedness to do so if he was asked. Counsel did not take him up on this invitation and must have formed the view that it was unnecessary. It is a fair inference that counsel did not perceive any imbalance in the charge or at any rate were happy with the fact that the jury had heard the records of interview and that the jury's attention had been drawn to the relevant passages. Accordingly, we do not think that this ground, insofar as it relates to the judge's common law obligation, is made out.

Compliance with the rule in Pemble v The Queen

36 It was further submitted that in accordance with the common law obligation the jury should have been reminded of all of the evidence which bore upon both applicants' belief even if it was not evidence that was specifically relied upon as providing a foundation for that belief.

37 The applicants drew attention to evidence given by Mr Tesfamichael, the fourth man in the Kingsville house at the relevant time, immediately prior to the commission of the offences. Tesfamichael said that while the complainant was having sex with Nasser Jabir in the bedroom, there was a discussion involving all of the accused in the lounge room during which it was suggested that the complainant probably wanted to have sex with three or four of them but it was agreed that each of them should talk to her, 'one by one'. He further testified that when Nasser came out of the bedroom, he was holding some black underwear and told the men present that the complainant was in the bedroom and that he did not think she would mind 'if all of us go, just talk to her one by one'. Tesfamichael further testified that after both applicants had been in the bedroom with the complainant, he went into the bedroom and found the complainant crying. She said she had been raped.

38 Akrem Jabir's submission was that the trial judge should have drawn the jury's attention to Tesfamichael's evidence as it bore upon whether the applicants believed that the complainant consented and whether that belief was reasonable. Counsel for the applicants acknowledged that at trial, the defence did not rely upon those facts to explain the applicant's asserted belief, but argued that the principle discussed in Pemble v The Queen[5] required the trial judge to identify any evidence for the jury which supported an alternative or additional basis for their belief.[6]

39 We reject this submission. Neither applicant in his record of interview mentioned either of these matters or suggested that these conversations provided a basis for their belief. Their belief was said to rest upon the complainant's statements of consent to which they had referred in their records of interview. Both applicants claimed in their interviews, that the complainant said, before she retired to the bedroom, that she was willing to have sex with each of them. They further alleged that the complainant said to each applicant when they separately approached her in the bedroom that she was willing to have sex with them and then did so. The only foundation for their belief was her having expressed consent to having intercourse with them. That the evidence of Tesfamichael provided the foundation for a belief, albeit mistaken and unreasonable, that the complainant was consenting, was never adverted to by anyone during the trial as being a possible foundation for any belief as to consent.

40 The decision of the House of Lords in Director of Public Prosecutions v Morgan[7] did not alter the law of Victoria that the prosecution would fail to establish the necessary mens rea of the offence of rape unless it could negate a belief by the accused, whether reasonable or unreasonable, that the complainant was consenting. The reasonableness of the asserted belief bore upon the likelihood that the accused had such a belief.

41 The matters described by Tesfamichael, did not provide a reasonable basis for any belief that the complainant would consent. Evidence of facts which could only support an unreasonable or mistaken belief as to consent becomes relevant where they are relied upon at the trial to explain the alleged belief. Ordinarily, it is the prosecution that draws attention to facts that are unreasonable as they might influence the conclusions as to whether the accused held such a belief.

42 If there was a basis on which the jury could have reached a conclusion favourable to the applicant, his Honour was obliged to leave that possibility to the jury and direct them accordingly.[8] But the obligation of the trial judge to identify the evidence that bears upon the facts in issue,[9] extends only to logically probative evidence which bears upon the 'real issue arising from the evidence as distinct from a remote or artificial possibility.'[10] In R v Bertand, in which a similar argument was advanced that the trial judge was obliged to advert to an alternative defence hypothesis, it was said that obligation would only arise if the evidence permitted an 'intermediate finding of mistaken belief.'[11] In that case as in the present, the practical reality did not allow for such an intermediate finding. If the complainant's evidence was accepted at least to a significant degree, not only had she not consented but the applicants would have been obviously aware of that fact.

43 The trial judge had no duty, of his own motion, to refer to evidence that was not relied upon and which could not, as a matter of logic, reasonably support a basis for either applicant's belief. There was no evidence from which it could be inferred that the applicants had formed a mistaken belief that the complainant had consented. Moreover, Tesfamichael's evidence was inconsistent with the applicants' claims that the complainant had said to all of the men present in the lounge room, before retiring to the bedroom with Nasser Jabir, that she was willing to have sex with each of them but one at a time. The witness could not remember the complainant saying any such thing. It is therefore not surprising that the trial judge was not asked to suggest to the jury that Tesfamichael's evidence provided any basis for their belief. To do so would have seriously undermined the asserted basis for their belief.

Compliance with s 37, s 37AA and s 37AAA

44 Even if the trial judge complied with his obligations at common law, the applicants further contend that he failed to direct the jury in accordance with ss 37, 37AA and 37AAA of the Crimes Act 1958 which it was said calls for directions more extensive than those required at common law. The applicants also contend that these provisions require the trial judge to comply with the rule as stated in Pemble.

45 Section 37 of the Act was amended in 2007 by the Crimes Amendment (Rape) Act 2007 (57/2007). A new s 37 and s 37AAA and s 37AA were inserted. Part of what had previously been contained in s 37 was retained in the new s 37 but the balance of the old s 37 was placed in s 37AAA and s 37 AA. These sections, by virtue of s 609 of the Act, were applicable to the present trial.

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.

37AAA. Jury directions on consent

For the purposes of section 37, the matters relating to consent on which the judge must direct the jury are-

(a) the meaning of consent set out in section 36;

(b) that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;

(c) that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting;

(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement;

(e) that the jury is not to regard a person as having freely agreed to a sexual act just because -

(i) she or he did not protest or physically resist; or

(ii) she or he did not sustain physical injury; or

(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.

37AA Jury directions on the accused's awareness

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider -

(a) any evidence of that belief; and

(b) whether that belief was reasonable in all the relevant circumstances having regard to -

(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether

the accused was aware that that circumstance existed in relation to the complainant; and

(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

(iii) any other relevant matters.

47 As can be seen, the new s 37 retains the obligation to give directions 'relevant to the facts in issue in a proceeding' and to relate the directions to those facts so as to aid the jury's comprehension of the directions (sub-s (1)). As Ashley JA recently observed in Worsnop v The Queen,[12] this appears to be a statutory invocation of the celebrated dictum of Sir Leo Cussen referred to by the High Court in Alford v Magee.[13] The prohibition against giving a direction that was not relevant to the facts in issue was retained in sub-s (2). The content of the directions as to consent which includes the obligations previously set out in s 37, are now prescribed in s 37AAA. The content of the directions as to the applicant's awareness including those previously set out in s 37 are now prescribed in s 37AA.

48 Section 37 in its form prior to the 2007 amendments, has been the subject of consideration in a number of decisions of this Court and the Court of Criminal Appeal.[14] Those authorities remain relevant as the terms of the old section have largely been retained though divided up and placed within the three new sections.

49 The introductory words to s 37 requires that the trial judge must direct the jury in accordance with s 37AA and s 37AAA where 'relevant to the facts in issue'. The amendment to s 37 did not alter those introductory words. Section 37 (3) requires the trial judge to relate the directions required by s 37AAA and s 37AA to 'the facts in issue' and to 'the elements of the offence'. In the explanatory memorandum to the Bill this provision was said to be a response to the decision of this Court in R v Yusuf[15] regarding 'the need to relate any direction only to the facts in issue'. We do not understand the reasons of Winneke P to so limit the trial judge's obligation. Be that as it may, the reasons of Winneke P as to the purpose and scope of the obligation under s 37 otherwise remains apposite. He said:[16]

The section is procedural in nature and the amending words which were added in 1997 were clearly inserted to ensure that only directions relevant to the facts in issue in a particular case were given; and that directions were not given which were superfluous to those facts. It is clear that the amending words add little to the obligations which are imposed by the common law upon a trial judge - namely to give to the jury directions as to such of the law as is necessary to enable them to determine the issues in the case before them and to relate that law to the facts in issue before the jury. This was Sir Leo Cussen's 'great guiding rule' referred to by the High Court in Alford v. McGee. This Court has, over the years, constantly reminded trial judges of this obligation (see, e.g. R. v. Franks (No.1); R. v. Anderson; R. v. De'Zilwa; R. v. Dardovska ...

50 In Yusuf, Winneke P stated that it was required by s 37 that the trial judge remind the jury of the passages in the evidence which bore upon 'the relevant facts which have been placed in issue in the proceeding'[17] which included, inter alia, the reasonableness of the applicant's asserted belief that the complainant was consenting to the sexual act. This obligation as we have said required the trial judge to act in conformity with the long standing doctrine of the common law[18] as referred to in Alford v Magee.[19]

51 The applicants' submissions misconceive the purpose and scope of the new provisions concerning the accused's awareness. Since the amendments to the Crimes Act 1958 by the Crimes (Rape) Act 1991 (81/1991)[20] a trial judge has been required to direct a jury that it must take into account whether that belief was reasonable in all the circumstances. Neither the 1991 nor 2007 amendments to the Act, which are concerned with the accused's awareness, were introduced with the object of affording an accused a greater level of protection. Rather their purpose was to ensure that the directions to a jury were sufficiently focussed upon circumstances

51 relevant to disproof by the prosecution of an accused's asserted belief that the complainant was consenting. This accords with the conventional approach that reasonableness of belief bears upon the question of whether the belief was held. But the obligations arising under s 37 and s 37AA do not extend to directing the jury as to evidence of facts which have not been relied upon or identified during the trial as providing a foundation for the accused's belief. Such evidence is not relevant to the facts which have been placed in issue. As Harper AJA stated in R v Salih,[21] a jury will only need to consider the reasonableness of the accused's belief where the issue is surrounded by ambiguity but not where the competing accounts are that consent was clearly and unequivocally refused or clearly and unequivocally given. We reject the contention that any aspect of s 37 or s 37AA is concerned with the principle in Pemble.

52 The applicants also complain that the trial judge failed to direct the jury in accordance with s 37AA(b)(i) and (ii.). His Honour had informed the jury, in the terms stated in s 37AAA(d), that the fact that a person did not say or do anything to indicate free agreement is enough to show that the act took place without that person's free agreement. He also informed the jury in the terms stated in s 37AAA(c) (i) and (ii) that they were not to regard the complainant as having freely agreed just because she did not protest or physically resist or because she did not sustain physical injury.

53 Although no exception was taken at trial, it was contended on appeal that the jury should have been directed that in considering whether each accused's asserted belief was reasonable, they must consider whether the accused was aware of the existence of that circumstance - as required by s 37AA(b)(i), and whether the accused took any step to ascertain whether the complainant was or might not be consenting- as required by s 37AA(b)(ii).

54 The alleged step taken by the applicants to inquire of the complainant whether she was willing to have intercourse with them was at the forefront of their defence and was adequately dealt with in the charge.

55 There is no substance in the complaint that the trial judge should have directed the jury in accordance with s 37AA(b)(i). As we have already said in dealing with the question of the reasonableness of the applicants' belief, such matters must be 'relevant to the facts in issue' before such an obligation arises.

56 In a case such as the present, where the complainant alleges that she plainly and clearly stated her objection to any degree of any intimacy with either applicant and physically resisted them and the applicants alleged that the complainant clearly expressed her willingness to have sexual relations with each of them and did not resist in any way, the factual bases described in s 36 or s 37AAA (d) were not relevant to any issue. They were not relied upon by either party as bearing upon the question of consent or the applicants' belief that the complainant consented.

57 Before leaving this issue we should observe that it was not suggested that the prosecution had relied upon this evidence as inconsistent with the applicants' asserted belief, but if it did, the trial judge would then have been obliged, both at common law and by virtue of s 37, to draw such evidence to the jury's attention. Ground 2 of Akrem Jabir's appeal and ground 5 of Nur Ahmed's appeal must be rejected.

58 This ground complains that the trial Judge failed to direct the jury as to the possibility of either or both of the appellants having a genuinely held, though unreasonable, belief that the complainant was consenting at the time of penetration by each of them.

59 As has already been pointed out in relation to ground 2 the question of the complainant's consent or lack of it was central to the trial. No issue was ever raised as to there being the possibility of either applicant, in the circumstances of this case, having an unreasonable, yet honest, belief in the complainant's consent. In his charge to the jury, an extract of which appears in paragraph [31] above, the trial judge referred to awareness of lack of consent in the context of each of the cases made by each of the applicants. Those cases left no room for the possibility of either of the applicants having a belief in consent when the complainant was, in fact, not consenting.

60 Further, neither counsel sought any direction to the jury on this issue from the trial Judge. Nor did he take any exception to his Honour's charge because it did not contain the direction upon which ground 3 (or ground 6 in the case of Ahmed) is based.

61 In his argument on ground 3 (and 6 respectively) counsel for each applicant referred to Zilm's case.[22] The argument was that the reasoning in Zilm's case dealt with the potential confusion that might be created by a lack of clarity and directions relating to reasonableness of belief. But Zilm was a completely different case. Its facts squarely raised circumstances in which there could well have been doubt as to the accused's belief in consent. A new trial was ordered because the trial judge was obliged to relate those facts to the law as to belief in consent and did not do so. Here, no question of mistaken belief in consent arises on any view of the facts.

62 There is no substance in Jabir's ground 3 or Ahmed's ground 6.

63 These grounds, which are raised only by Jabir, are all concerned with the evidence of Dr Morgan, the forensic physician. Dr Morgan's evidence was to the effect that the complainant had a tear in her anal passage and that she had an anal swab taken from her which tested positive for Akrem Jabir's DNA. The applicant submitted that the Judge ought to have given a direction to the jury as to the danger of drawing any inference as to his having penetrated the complainant's anus from the finding of that DNA, having regard to the doctor's concession that it was possible that it got into the position in which it was found by transference from the complainant's vaginal area; such transference having occurred by reason of Nur Ahmed's subsequent sexual activities with her.

64 In his charge to the jury the trial Judge referred to the anal swab DNA. He told the jury that it and its link to Akrem Jabir together with the anal tear found by Dr Morgan was potentially supportive evidence of the complainant's evidence of penile/anal penetration by Akrem Jabir. Subsequently, he specifically referred to defence counsel's submission that the jury should not draw the inference that the tear and the DNA were due to penile/anal penetration by his client because other reasonable inferences could not be excluded. Indeed, the trial judge went further and pointed to the fact that the prosecutor did not address any argument concerning the likelihood of Akrem Jabir's DNA being deposited in or near the vagina of the complainant and subsequently being transferred by other sexual activity. The judge directed the jury that if they were not satisfied beyond reasonable doubt that the anal tear and DNA on the anal swab supported the complainant's evidence then her evidence stood alone. His Honour went on to instruct the jury that if they were satisfied beyond reasonable doubt that the evidence of the anal tear and the DNA on the anal swab supported the complainant's evidence then they might more readily accept her allegation of anal penetration.

65 The trial judge's directions to the jury as to the use they might make of the forensic evidence concerning the applicant's DNA and its being found in the complainant's anus clearly exposed the relevant issue for the jury. He repeated defence counsel's argument as to transference. Later in his charge, his Honour returned to this matter in a way which may have been unduly favourable to the accused. He told the jury that if they were satisfied beyond reasonable doubt as to Akrem Jabir's involvement in the anal tear and as to his DNA being found in the complainant's anal area, that evidence would support the complainant's account. In doing so he may have overstated the standard of proof. This evidence would have been capable of supporting the complainant's account even if the jury were unable to reach satisfaction as to its connection with Jabir to the criminal standard.[23]

66 In ground 4 the applicant specifically complains of a failure by the trial judge to give any direction on the dangers of drawing any inference of penile/anal penetration in respect of count 3 merely on the basis of equivocal DNA evidence. But the Crown case was not based merely on the DNA evidence. The Crown case relied, principally, on the oral evidence of the complainant. The anal tear and the DNA, if accepted by the jury in the way the Crown argued, could have provided support for the complainant's evidence. That was how the judge directed the jury. There was no error in his so doing. There is no substance in the applicant's complaint.

67 Ground 6 alleges that the trial judge failed to direct the jury that the DNA evidence on the anal swab could not be regarded as corroborative evidence unless the Crown excluded the possibility of DNA 'transference' beyond reasonable doubt. As already pointed out, the trial judge instructed the jury that if they were not satisfied beyond reasonable doubt as to the anal tear and the DNA on the anal swab supporting the complainant's evidence, then that evidence stood alone. In dealing with this issue his Honour ensured that the jury were left in no doubt as to how they could use this evidence and its effect if they accepted it beyond reasonable doubt. In fact, as already pointed out, it was capable of supporting the complainant's evidence even if it were not proved to the criminal standard. Ground 6 is not made out.

68 In ground 7 the applicant asserts an error by the trial judge in failing to give any direction on the dangers of using the DNA evidence to convict him. Again, the Crown case was based principally on the complainant's own evidence. It is quite clear from the judge's charge that the DNA evidence and, for that matter, the anal tear, was not the principal evidence implicating Akrem Jabir. It is only evidence which, if accepted, was capable of supporting the complainant's account. The error complained of is not made out.

69 This ground asserts, in the case of Jabir, a miscarriage of justice because the 'verdicts of the jury on counts 2 and 3 are unsafe and unsatisfactory'. In the case of Ahmed, of course, the ground relates to count 4.

70 The High Court has recently, again, in R v Nguyen,[24] set out the task of an appellate court in considering whether a verdict of guilty returned by a jury 'should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence' - the criteria prescribed by section 568 of the Crimes Act 1958.[25] Quoting from M v The Queen[26] the Court (Hayne, Hayden, Crennan, Keifel and Bell JJ) said:

the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

71 Counsel for Akrem Jabir put no specific argument that his client's convictions were unsafe and unsatisfactory. Rather, he adopted the arguments of counsel for Nur Ahmed in respect of the same ground. Ahmed's counsel's argument was based on a number of inconsistencies he referred to in the evidence of the complainant. Counsel referred to discrepancies between statements made by the complainant and the Crown case at trial. He pointed out that in her first statement the complainant alleged rape against Akrem Jabir, Nur Ahmed and the witness Tesfamichael (who was never charged). In her first complaint of rape (to Tesfamichael) she said that 'they all raped me'. In subsequent complaints she referred to a number of men, three or four, of having raped her, which allegation probably included Tesfamichael and Nasser Jabir with whom she had consensual intercourse. It is clear from a reading of the evidence that the complainant was extremely upset and confused after the events in the bedroom and gave accounts which were to a greater or lesser extent inconsistent. She was cross-examined on all of these matters and gave explanations for those inconsistencies. The jury, of course, heard and observed the complainant giving those explanations.

72 That there were inconsistencies in the complainant's evidence upon which the Crown case rested is undeniable. The trial judge specifically drew the jury's attention to them in this passage:

I have already given you directions concerning the fact that this is a case that depends on the evidence of the complainant with the exception of proof of penetration concerning Count 5 is based on the admission by Nur Ahmed in his interview. Otherwise the case depends on the evidence of the complainant. Accepting her as a witness of truth and reliability is critical in finding guilt. Contrast between her evidence and the account of each accused is starkly dramatic. The Crown concedes the existence of inconsistencies, as I understood Mr Lynch's submissions, in the account she has given to various people. In the context of this case though, inconsistencies is a blunt fact that needs to be faced. The defence submits that the vagueness, uncertainty, false allegations, inconsistencies and shifts in her account or accounts make her a wholly unreliable witness and you should not act on her evidence. Prosecution says these are discrepancies are understandable in all the circumstances, given what she has suffered. You might expect a jumble, inconsistent and incoherent account or accounts.

Because this is a case that depends so much on the truthfulness and accuracy of the complainant, and because of the exceptional nature of the variations in her account and the discrepancies between much of what she has alleged to various people and the account she gives to you, relied upon by the Crown to prove the counts, I warn you as a matter of law that you need to exercise particular care in how you approach this case. In giving you this warning, I am not suggesting, and it would be wrong to suggest that people who make complaints in sexual offences are less reliable than other witnesses, that is not the case. The warning the necessary because the case against each accused depends so much on the complainant and because of the considerable body of material concerning prior inconsistent statements.

The risk of acting on the complainant's evidence, given the prior inconsistent statements which are not in dispute, it is not in dispute that these inconsistent accounts were given, are considerable. So, the risks of acting on her evidence in this context are considerable. I emphasis however, that it is entirely a matter for you. I am just directing you about what the law says. As a matter of law, I am directing you of the need for particular care in such a case. You should very carefully scrutinise her evidence with particular attention to the prior inconsistent statements as well as the other arguments put by counsel and paying heed to the warning that I am now giving you and then ask yourselves if you are satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence as it relates to any count under consideration. The risk that I have referred to will be of particular significance in this case if you find the complainant's evidence is unsupported by independent evidence. For this reason, you must consider carefully whether there is support for the evidence of the complainant.

His Honour then proceeded to again refer to the DNA and anal tear evidence.

73 As against the sworn evidence of the complainant with its acknowledged inconsistencies, the applicants relied solely upon their answers to the investigating police contained in their records of interview. The trial judge was careful to direct the jury that if they were unable to reject, beyond reasonable doubt, the account given by any particular accused, they must find him not guilty. If they had a reasonable doubt that his account may be correct then they could not convict said the judge.

74 An examination of the complainant's evidence establishes that the Crown case is proved if that evidence is accepted notwithstanding the inconsistencies to which the trial judge referred and which were the subject of criticism by counsel. The jury must have accepted the complainant's evidence as to her lack of consent to sexual activity with these men. In the circumstances, this Court is unable to reach a conclusion that the jury, which was properly instructed, should have entertained a doubt as to their guilt. Accordingly, this ground fails in respect of each of them.

75 These grounds allege an inconsistency between the jury's verdict on count 4 by which Nur Ahmed is convicted of penile/vaginal rape of the complainant and his acquittal on count 5 of the offence of digital/anal rape and the Jabir brothers' acquittals on count 1. There is nothing in this ground.

76 The complainant did not give evidence of having been digitally raped per anum by Nur Ahmed. The only evidence of his having inserted his finger into the complainant's anus was his admission to that effect in his record of interview, which admission was accompanied by an assertion that he performed this act with the complainant's consent - indeed, at her request. It is not surprising that the jury did not consider it appropriate to convict Ahmed of this offence. The well known passage from King CJ's judgment (with the concurrence of Olsson and O'Loughlin JJ) in R v Kirkman[27] is in point:[28]

[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.

This passage was specifically approved by the High Court (Gaudron, Gummow and Kirby JJ) in MacKenzie v The Queen.[29] There is no substance in this ground.

77 The second of the two grounds concerned with inconsistency alleges an inconsistency between Ahmed's conviction on count 4 and the acquittal of the Jabir brothers on count 1.

78 There was no admission in either of the Jabir brothers' records of interview as to the performance by Akrem Jabir of the actus reus of count 1, nor was there any other evidence of the digital penetration by Akrem Jabir of the complainant's vagina, apart from her own evidence. In each of the counts which resulted in a guilty verdict there was some evidence, apart from that of the complainant, of the actus reus having occurred - either an admission or, in the case of count 3, the evidence of Dr Morgan. There is no inconsistency.

79 Further, as far as Nasser Jabir at least is concerned, the trial judge instructed the jury as a matter of law that before it could convict him of aiding and abetting his brother to digitally rape the complainant, it would have to be satisfied that some time before that event in the lounge room of the Kingsville house, he had said words to the effect: 'what I say goes'. The jury may have acted in accordance with that direction and acquitted Nasser Jabir on count 1 because they were not so satisfied.

80 For the reasons set out above, both of these grounds must fail.

81 This ground complains that the trial judge failed to direct the jury on the issue of the complainant's motive to complain.

82 In cross-examining the complainant, counsel for Akrem Jabir suggested to her that she was lying about his client. She, of course, denied the suggestion. In his final address he again raised the issue of the complainant telling lies but added that he could not suggest why she had done so. In his charge, the trial judge told the jury, as a direction of law, that the defence 'are not obliged to explain why a complainant might lie, and nothing flows from an inability to do so'. No exception was taken by any counsel as to this direction and no further or other direction was sought.

83 In R v Palmer[30] the High Court considered the propriety and, indeed, the relevance of a prosecutor cross-examining an accused as to whether he has knowledge of any fact which would provide a motive for a complainant in a sexual assault case to lie. The Court was emphatic that such cross-examination was irrelevant to any issue properly before the jury and invites the jury to speculate to a conclusion that they should accept the complainant's evidence unless they are satisfied by the accused that she has a motive to lie. Such questioning has the tendency to diminish the standard of proof borne by the Crown.

84 Here, what has occurred is no more than that defence counsel has unsuccessfully cross-examined the complainant to the effect that she had lied to the jury but, nevertheless invited the jury to reach the conclusion that she had, in fact, lied. He apparently then added, gratuitously, that he could not suggest any reason why she should do so.

85 In giving the direction which he did to the jury, the trial judge was correctly stating the law. He could have put his direction in the context of the onus of proof resting always on the Crown. But he was not asked to do so and had fully and adequately instructed the jury as to the onus and standard of proof elsewhere in his charge. In the overall context of this case the reference to the complainant's veracity and counsel's inability to suggest a reason for her to lie was minor indeed. It required no further direction that that which the judge provided. This ground fails.

86 This ground relied upon an aggregate of errors as pleaded in grounds 1 to 9. As none of those grounds was successful, ground 10 must also fail.

87 As none of the grounds argued has been upheld in respect of either applicant, each of their applications for leave to appeal against their convictions should be dismissed.

[1] The provisions in the Crimes Act 1958 relating to sexual offences were substantially amended by the Crimes Amendment (Rape) Act 2007. The amendments included replacing s 37 with a new s 37. In its new form, s 37 did not contain s 37(1)(a). A different, though similar, provision, s 37AAA(d), was inserted by s 4 of the amending act. The new 37(2) accommodated the insertion of s 37AAA (and s 37AA) into the Act. These new provisions which commenced on 1 January 2008 applied to the trial of the applicants by virtue of s 9 of the amending act, such trial having commenced on 7 July 2008. Thus, this ground of appeal is erroneously framed, as it refers to provisions which did not apply to the applicants' trial. However, this judgment deals with the substance of the ground alleged according to the law as it applied to the trial.

[5] [1971] HCA 20; (1971) 124 CLR 107 ('Pemble').

[6] The principle in Pemble was the subject of consideration by McHugh J in Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, 198-199.

[7] [1975] UKHL 3; [1976] AC 182; [1975] 2 All ER 347.

[8] R v Tran [2007] VSCA 19; R v Alexander [2007] VSCA 178; (2007) 174 A Crim R 297.

[9] R v AJS [2005] VSCA 288.

[10] R v Tran [2007] VSCA 19; R v Thompson [2008] VSCA 144, [106]-[108].

[11] [2008] VSCA 182; (2008) 188 A Crim R 223, 244.

[12] [2010] VSCA 188, [34].

[13] [1952] HCA 3; (1952) 85 CLR 437.

[14] R v Lucien, (Unreported Court of Criminal Appeal, 25 March 1994); R v Ev Costa (Unreported Court of Appeal, 2 April 1996); R v Laz [1998] 1 VR 453; R v Yusuf [2005] VSCA 69; R v Salih [2005] VSCA 282; R v Soldo [2005] VSCA 136; R v Munday [2003] VSCA 189; (2003) 7 VR 423, R v Zilm [2006] VSCA 72; R v Gose [2009] VSCA 66.

[15] [2005] VSCA 69 ('Yusuf').

[18] These passages from Yusuf were referred to with approval in R v Gose [2009] VSCA 66 [49]-[56] (Vickery AJA ) with whom Vincent and Nettle JJA agreed.

[19] [1952] HCA 3; (1952) 85 CLR 437.

[20] Section 37(1)( c ), now s 37AA(b).

[21] [2005] VSCA 282 [71].

[22] R v Zilm [2006] VSCA 72; (2006) 14 VR 11.

[23] Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, 583 (Dawson J) 592 (McHugh J); Doney v R [1990] HCA 51; (1990) 171 CLR 207, 211 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); R v Andrews (1992) 6 A Crim R 137, 167 (Olsson J).

[24] [2010] HCA 38 (3 November 2010).

[25] Now section 276(1)(a) Criminal Procedure Act 2009.

[26] [1994] HCA 63; (1994) 181 CLR 487, 493.

[27] (1987) 44 SASR 591.

[28] (1987) 44 SASR 591, 593.

[30] [1998] HCA 2; (1998) 193 CLR 1.