Jacobs (a Pseudonym) v The Queen [2019] VSCA 285

CRIMINAL LAW - Appeal - Conviction - Applicant convicted on one charge of rape in third proceeding - Applicant denied non-consensual intercourse with complainant - Applicant offered complainant to stay in his apartment - Applicant told complainant apartment had two bedrooms - Apartment was a studio apartment - Complainant arrived and applicant told her he recently moved to studio apartment - Trial judge admitted lease of studio apartment on basis that lease was relevant to applicant's credibility - Whether substantial miscarriage of justice - Lease not admissible as credibility evidence under ss 108A and 108B of the Evidence Act 2008 - Documentary evidence tendered to jury capable of being given undue weight - Substantial miscarriage of justice due to admission of lease into evidence - Application for leave to appeal granted - Appeal allowed - Conviction in third proceeding quashed - Evidence Act 2008 ss 102, 108A, 108B.

1 The applicant was originally subject to a 21 charge indictment which alleged that he had committed a number of sexual offences in respect of six complainants over a seven week period between 30 March and 21 May 2015. As a consequence of an interlocutory appeal on behalf of the applicant, the charges relating to each complainant were severed.[2]

2 In the upshot, the applicant was subject to separate trials in four proceedings. The first trial ('the first proceeding') concerned two charges involving complainant 'AR'.[3] The applicant was acquitted on the first charge, and convicted on the second charge. The second trial ('the second proceeding') concerned three charges involving complainant 'AF'. The applicant was acquitted on the first charge, and convicted of the second and third charges. The third trial ('the third proceeding') concerned one charge involving complainant 'KL'. The applicant was convicted on that charge. The final trial, involving complainant 'LK', resulted in the applicant being acquitted on the five charges of rape, and one charge of false imprisonment. The prosecution discontinued the charges relating to the other two complainants.

3 The applicant was sentenced, in respect of the charges on which he was convicted, to a total effective term of imprisonment of 12 years and 4 months, with a minimum non-parole period of 7 years and 6 months.[4]

4 In each matter, the applicant seeks leave to appeal his convictions and sentence. One of the grounds of the applications for leave to appeal conviction, in respect of the first and second proceedings, concerns the admissibility of evidence by Dr Danny Sullivan, a forensic psychiatrist, which, in general terms, was directed to explaining responses by some complainants to unwanted sexual conduct, and delay by some complainants in reporting that conduct. There are some common issues that are raised by that ground of appeal in each application, but, in light of the different factual circumstances of each case, it is necessary to give the ground relied on separate consideration.

FIRST PROCEEDING - APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

5 At the time of the events with which the first proceeding was concerned, the applicant was 28 years of age, and the complainant, AR, was 29 years of age. The applicant was charged with two counts of rape which he was alleged to have committed on 24 April 2015. He was acquitted by the jury on the first charge, but convicted on the second charge. He was sentenced to a term of imprisonment of 6 years and 6 months in respect of that charge, with sixteen months of that sentence being directed to be served cumulatively with the sentences that were imposed in respect of the charges on which he was convicted in the second and third proceedings.

6 At some time before the date of the offence, the applicant and AR had each created profiles on an online dating platform, 'Plenty of Fish'. Having connected with each other through that platform, they met on two occasions before the date of the offending, on 21 and 23 April 2015.

7 On 24 April 2015, the applicant and AR attended a bar together after AR had finished work. They then travelled together in a taxi to the applicant's apartment. There, after watching a television show on a laptop, they commenced to become mutually intimate, in the course of which the applicant, with AR's consent, penetrated her vagina with his penis. After he had done so, AR told him to desist. The applicant, after a short delay, withdrew and apologised. Those circumstances were the subject of charge 1 (rape), on which the applicant was acquitted. AR agreed to remain in the apartment, and she lay down again on the applicant's bed. In due course they resumed becoming intimate. At one point the applicant was on top of AR. According to AR, she then told the applicant to desist. However, the applicant did not cease, and he inserted his penis into AR's vagina. AR alleged that while doing so he held her hands and wrists, and he used his body weight to pin her to the bed. Those circumstances constituted charge 2 (rape), on which the applicant was convicted.

8 AR then left the apartment. In the following days, AR and the applicant exchanged text messages, in which the applicant stated that the incident had been a misunderstanding. AR did not report the matter to the police. However, she told friends and a fellow employee. The matter came to the attention of the police after the applicant's telephone was examined as a result of a complaint by a different complainant. On 1 June 2015, police contacted AR and took a statement from her. That was the first occasion upon which AR complained to the police about the incident. No record of interview was conducted by the police with the applicant concerning the complaints made by AR.

9 At the trial, the applicant did not call evidence or give evidence on his behalf. He did not deny engaging in the sexual activity alleged by the complainant. The issues that were to be determined by the jury concerned AR's consent and the applicant's belief in AR's consent.

10 Before the commencement of the trial, counsel for the applicant objected to the admissibility of evidence that the prosecution proposed to call from Dr Danny Sullivan. In the proposed amended summary of prosecution opening, the prosecution identified five ways in which it sought to lead the evidence, namely:

(a) there are no normal or usual responses to rape or other unwanted sexual activity;

(b) the majority of rapes are not reported to police, and in many cases are significantly delayed, at times by years;

(c) sexual assault is less commonly a behaviour perpetrated by strangers, but is more likely to occur with acquaintances, friends or even partners;

(d) cultural backgrounds, which endorse strong patriarchal values and limited power of women, may also be associated with tolerance of violence and sexual violence against women, and with limited police interest in fairness in the prosecution; and

(e) reactions at the time of rape are extremely variable.

11 The judge ruled that that evidence was admissible pursuant to s 108C of the Evidence Act 2008 and s 388 of the Criminal Procedure Act 2009.[5]

12 The applicant seeks leave to appeal the conviction on three grounds, the first two of which were directed to that ruling. The grounds upon which the applicant relies are as follows:

(1) The Learned Trial Judge erred in admitting the evidence of Dr Danny Sullivan over objection.

(1A) A substantial miscarriage of justice was caused by the jury being permitted to reason that Dr Sullivan's evidence:

(a) enhanced the credibility of the particular complainant; and/or

(b) made it more likely that:

(i) The complainant did not consent; and/or

(ii) The accused was aware the complainant did not consent or might not have been consenting or did not have a reasonable belief in consent; and/or

(iii) The facts were as alleged by the prosecution.

(3) The Learned Trial Judge erred in refusing to administer a direction to the jury that the previous representations made by the complainant do not independently confirm her allegations.

13 In order to address those proposed grounds of appeal, it is necessary to summarise the evidence in the first proceeding in some more detail.

14 AR gave evidence that she was born in Egypt in 1985. She belongs to the Muslim faith. In 1994, she migrated with her family to New Zealand. In 2012, she moved to Australia.

15 AR explained how she had a profile on the dating website 'Plenty of Fish', and that, through that website, she met the applicant. After a number of days communicating with each other, they met at a bar in Windsor by arrangement on 21 April 2015. While they were at the bar, AR suggested to the applicant that he accompany her to a trivia event on the same evening. After attending that event, the applicant and AR left separately. They met again two days later on 23 April outside the gymnasium that AR attended. After they met there, they visited a café, and then went to a bar. While they were at the café, the applicant attempted to hold AR's hand, but she pulled it away. After attending the bar, the applicant and AR caught the same tram to their respective homes. While they were on the tram, the applicant held AR's hand. AR said that she did not feel comfortable about that, but she did not want to make a scene, so she allowed him to do so. When AR alighted from the tram in Prahran, the applicant walked her to her accommodation. There he kissed her and bade her goodnight.

16 On Friday 24 April 2015, the applicant and AR met again by arrangement. Before they met, AR had attended a bar to have drinks with a colleague. There she consumed five alcoholic drinks. In her evidence, she said she was not intoxicated at that stage, but she was 'just happy'. During the evening the applicant contacted AR by text messages. They arranged to meet on the same tram. Having met in that way, they travelled to Chapel Street, where they visited a bar and had a drink together.

17 After they left the bar, the applicant suggested that they should obtain some alcohol and go back to his house. AR responded that she had some alcohol at her own home, and that the applicant could accompany her there. They then caught a taxi together to AR's residence in Windsor. When they arrived there, AR went inside and saw that her housemates were asleep. The applicant remained outside in the taxi. Although AR wanted the applicant to have a drink at her home, the applicant persuaded her to accompany him to his apartment. After initially resisting that suggestion, AR relented, and agreed to go back to the applicant's home.

18 When they arrived at the applicant's apartment, AR and the applicant continued to drink and smoke cigarettes together. They then sat on the applicant's bed and watched a television show on the applicant's laptop.

19 While they were doing so, the applicant and AR kissed each other, and the applicant touched AR's breasts, slid his hand down her dress and kissed her bare breast. From there they commenced to become intimate, and the applicant undressed AR with her consent. He then removed his own clothes, got on top of AR, continued to kiss her, and inserted his penis into her vagina. At this stage there was no suggestion, in AR's evidence, that she was not consenting to what was occurring. However, after the applicant had penetrated her, she told him to stop. According to AR, the applicant 'kept going' and 'didn't stop'. He then did remove his penis from her vagina, and she got up and tried to cover herself with the sheets or duvet. When AR said to him 'what was that?', he responded 'I'm sorry I didn't realise I think I'm drunk'. The applicant continued to apologise to AR. He persuaded AR to remain and not to leave his apartment.

20 AR then covered herself with the sheet, and lay down. The applicant kissed AR, and she kissed him back. He started touching her breasts, and kissing her breasts again. He then got on top of AR. At that point, she said 'I don't want to do this'. However, the applicant inserted his penis into her vagina. She tried to push him off. At that stage, the applicant was holding her hands or wrists, and his weight was on her torso. Despite her protests, the applicant continued to have intercourse with her. Eventually he removed his penis, and let go of her wrists. She pushed him off her, and started to get up. The applicant tried to grab her, and she pushed him away. However, she felt a push, and fell to the floor.

21 The applicant then tried to prevent AR from putting her clothes back on. Ultimately she succeeded in doing so. He tried to persuade her to stay. Eventually she was able to dress and leave the apartment.

22 In the early hours of 25 April 2015, AR sent a text message to her housemate, CW (who is a male), who was then in Daylesford. In the text messages that ensued, she said to CW that she was 'Just in a bit of trouble but I'm okay now'. She also said 'It was an awful night but it's over now and I made it home okay'. On the following Monday, 27 April, she sent a message to a work colleague stating that her date with the applicant did not go well.

23 As mentioned, following the incident, there were a series of text messages between the applicant and AR. By a message dated 2 May, the applicant said that AR was 'very confusing and I don't know which part was real ... the very romantic and amazing part, or when you became so angry all of a sudden'. He said that he expected an apology from AR. In turn, AR rejected the suggestion that she owed the applicant an apology, and said that it was 'the worst night of my life'.

24 In a series of text messages that followed, the applicant suggested that AR's conduct on the night in question had been confusing, which, AR promptly rejected, stating that the night for her was frightening and a 'wake up call'. In order to address grounds 1 and 1A, it will be necessary to return to the content of those text messages.

25 AR also gave evidence that on 31 May she sent a message to her friend, LB, in which she described what had occurred, and wrote:

... he started getting a bit frisky, and then I said to stop, but he didn't. It was a bit out of control. I tried to leave and he hit me.

26 In cross-examination, AR agreed that, in the prelude to the physical intimacy, she and the applicant had been kissing and 'cuddling' together on the bed, that they both became naked and exchanged kisses, and that in that process the applicant progressed to physical intimacy. She agreed that she was happy for that to occur. She also agreed that it was impossible for her to say how long it was, after she said to the applicant to stop, that the applicant in fact ceased having intercourse with her and withdrew, on the first occasion. She confirmed that the applicant did withdraw, and that he apologised. She also agreed that very shortly after that, consensual intimacy continued, with AR returning the applicant's kisses 'in full'. She agreed that, at that point, she was an 'active, equal willing participant' in the events. At that stage, they were still both naked. There was more passionate kissing, with the applicant kissing AR's breasts, while she was on her back. She agreed that she then very suddenly 'moved' from being aroused, to not wanting things to go further. She also agreed that she could not say for how long the applicant penetrated her, after she told him to stop. AR agreed that, after that second episode, in order that she could get off the bed, the applicant had to let her do so. She agreed that when she got off the bed, she was highly emotional, and the applicant was telling her to calm down. She said that she struck the applicant, but that was after he first 'came at' her.

27 AR said that she did not recall having any redness, soreness or bruising to her wrists where she said she was held by the applicant. She did not take any photographs of any injuries. She said that she did not provide to the police officer, who took her statement, the name of the fellow employee to whom she spoke on the following Monday, 27 April. AR also said that she and the applicant are both Muslims, and, according to the tenets of that faith, the fact that she was having premarital sex was a sin.

28 In re-examination, the prosecutor asked AR some questions about that matter. She said that she identified as a 'modern Muslim'. She subscribed to the beliefs of the religion, but that she did not 'do a lot of the practising'.

29 LB gave evidence that she and AR were very close friends, 'like sisters'. She identified the text messages that passed between herself and AR, in which AR said (inter alia) that the applicant 'started getting a bit frisky, and then I said to stop, but he didn't ... was a bit out of control. I tried to leave and he hit me'.

30 CW gave evidence that at 3.16 am on 25 April 2015, his mobile telephone received a text message from AR asking if he was awake. CW was then asleep. When he responded to the message later that morning, AR replied with texts saying 'Was just in a bit of trouble but I'm OK now' and 'It was an awful night but it's over now and I made it home Ok'.

31 Dr Sullivan gave evidence, in a general form, relating to the reactions of persons who have experienced unwanted sexual activity. He stated that he based that evidence on his reading of academic literature, and his experience of practice in a clinical setting.

32 As we will discuss, the critical issue, in relation to Dr Sullivan's evidence, concerns whether any of it was relevant to the issues in the trial. For that purpose, it is convenient to summarise the salient aspects of his evidence as follows. Dr Sullivan stated:

(1) The two main factors, that influence a person's response to rape or other unwarranted sexual activity, are, first, the circumstances of the unwanted assault, and, secondly, the personal characteristics of the person who alleges the unwanted sexual activity, including that person's age, gender, sexual experience, cultural or religious background, and the degree of support that was available to that person.

(2) According to professional literature, a minority of alleged rapes are reported to the police, and many of those reports are made some time later. In the majority of cases reports to police are delayed.

(3) Research produced by the Australian Institute of Family Studies states that there are a range of reasons why people do not report sexual assaults, including uncertainty about what constitutes an assault, a concern about the repercussions of the report (shame), and a range of different factors. Some women may feel that they have brought it upon themselves, or feel inhibited about reporting a sexual assault, because they come from a cultural, social or religious background which says that premarital sex is forbidden.

(4) There are differences in cultural responses to unwanted sexual activity. One example are women of particular cultural or social backgrounds in which they are not expected to affiliate with men outside their immediate family.

(5) The cultural background of the person is an important consideration. It is a 'very critical and differing aspect' of the way in which people react with doctors, police or hospitals. In many cases, culture defines a particular role in the community for a gender. In some cultures, physically active and assertive males are privileged, and in others quiet and dedicated males are privileged.

(6) A number of persons, who have been the subject of unwanted sexual activity, continue to have further contact with the protagonist. In clinical practice, numbers of patients have reported having returned to a relationship or seeing the person who perpetrated the assault. In one study, thirty per cent of women said they had sex again with the person after they believed they had been sexually assaulted.

(7) A woman's immediate response to the commencement of unwanted sexual activity may depend on the circumstances, including if the protagonist is very violent and aggressive, it might be feared that resistance would lead to increased violence. Victims report a range of different responses, depending on their personality or their cultural, social or religious background.

33 Finally, the informant, who was a member of the Moorabbin Sexual Offences and Child Abuse Investigation team, gave evidence. She stated that on 31 May 2015 she contacted AR, and met with her on 2 June 2015 in order to take a statement from her.

34 We turn, then, to the three proposed grounds of appeal.

Application for leave to appeal against conviction - Grounds 1, 1A

35 Grounds 1 and 1A of the application for leave to appeal against conviction concern the admissibility of the evidence of Dr Sullivan.

36 At the commencement of the trial, before the jury was empanelled, counsel for the applicant objected to the admissibility of that evidence, primarily on the basis that none of it was relevant to any of the facts in issue in the case. Counsel also submitted that the evidence, that was proposed to be adduced from Dr Sullivan, and, in particular, that which related to the cultural backgrounds of the applicant and AR, invited unfair speculation, and would be likely to cause significant prejudice to the applicant. It was pointed out that AR, in her statement to the police, gave an explanation for her delay in speaking to the police. In her text messages with the applicant, AR said that she wanted to put the matter out of her mind and get on with her life. Thus, it was submitted, AR, by her own evidence, would give an explanation for why she did not speak to the police. Accordingly, it was submitted, the evidence that was sought to be adduced from Dr Sullivan was irrelevant.

37 In ruling that the proposed evidence was admissible, the judge stated that the prosecution sought to adduce the evidence of Dr Sullivan to meet an attack on the credibility and reliability of the complainant, arising from her delay in making a complaint, and from 'maintaining some form of relationship with the accused after the event'.[6] The judge noted that the prosecution would use the proposed evidence of Dr Sullivan 'to re-establish her credibility and dispel any myths put forward, or that the jury might conceive, about the behaviour of the complainant'.[7] The judge referred to the decision of this Court in MA v The Queen,[8] and stated:

By analogy in this case the evidence of Dr Sullivan is necessarily general and I am satisfied will assist the jury to identify a possible range of normal behaviour by a complainant, in this case as an adult, so as to allow the jury to properly assess her credibility and reliability. This applies particularly, even though the complainant does provide an explanation as to her delay in making a complaint, and also makes reference to matters of shame and embarrassment. The evidence is also relevant to the subsequent interaction between the complainant and the accused.[9]

38 Accordingly, the judge held that the evidence was admissible pursuant to s 108C of the Evidence Act and s 388 of the Criminal Procedure Act.

39 In support of ground 1 and ground 1A of the application for leave to appeal against conviction, counsel for the applicant noted that the rationale, relied on by the prosecution, for admitting the evidence of Dr Sullivan was to re-establish the credibility of AR, in view of the delay by AR in making a complaint about the conduct of the applicant, and the fact that they maintained a form of relationship after the date of the offence. Counsel submitted that that proposition was misconceived. It had not been foreshadowed by the defence that any such attack would be made on the credit of AR, nor was cross-examination directed to the delay by her in reporting the matter to the police, or to the content of the text messages that passed between herself and the applicant after the date of the offences.

40 Counsel for the applicant noted that, in order that the evidence be admissible under s 108C of the Evidence Act, it must have the capacity to 'substantially affect' the assessment of the complainant's credit. The evidence of Dr Sullivan could not have that effect, in the absence of any attack on the credibility of AR relating to the delay in making a complaint, or maintaining a continuing relationship with the applicant. Further, it was not in issue in the trial that sexual penetration had taken place, or that, at some point, AR had come to the view that the sexual penetration of her by the applicant was unwanted. The evidence of AR was not consistent with any of the evidence to be adduced from Dr Sullivan. The prosecution did not foreshadow an application to rely on s 38 of the Evidence Act to cross-examine AR to provide a basis for contending that the evidence of Dr Sullivan might have provided some different explanation for the manner, in which she conducted herself after the date of the alleged offences, than that given by AR. Accordingly, counsel for the applicant submitted, the evidence of Dr Sullivan was not capable of substantially affecting the assessment of the credibility of the complainant, and it was therefore not admissible under s 108C of the Evidence Act.

41 Counsel submitted that, similarly, the evidence of Dr Sullivan was not admissible under s 388 of the Criminal Procedure Act, because the opinions expressed by Dr Sullivan were not relevant to any fact in issue in the trial. It was not necessary for Dr Sullivan to give evidence about the 'nature of sexual offences' in accordance with s 388(a), as AR gave specific evidence that she resisted the applicant. Nor was the evidence admissible under s 388(b) since AR, on leaving the applicant's apartment, had made contact with her flatmate and sent him a text stating that she had had a troubling experience.

42 Counsel further contended that, even if the evidence of Dr Sullivan were admissible, it ought to have been excluded under s 137 of the Evidence Act. The probative value of the evidence was limited. On the other hand, the evidence had the capacity to impermissibly enhance the credibility of the complainant, by inferring that AR had behaved in a manner that was consistent with her being a victim of the offences that she alleged against the applicant. The prosecution case depended on the jury's acceptance of the evidence of AR. Thus, it was submitted, the impermissible bolstering of her credibility resulted in a substantial miscarriage of justice.

43 In response, counsel for the respondent submitted that the evidence of Dr Sullivan remained relevant, even if the defence did not explore or address the issues of the conduct of AR after the date of the offences, and the fact that she did not report the matter to the police during that period. A central issue in the trial was the credibility of AR. Evidence was led from the informant that it was the investigating police who contacted AR on 31 May 2015 and took a statement from her two days later. That evidence might have been misused by the jury to reason that AR's delay in reporting the event materially affected her credibility. Thus, it was submitted, the evidence of Dr Sullivan was relevant to dispel any such misconception which might be held by a member of the jury.

44 Counsel for the respondent submitted that the evidence of Dr Sullivan, that a majority of victims of rape know their perpetrators, was relevant in this case, because AR had some acquaintance with the applicant. The evidence as to the cultural background of AR was relevant, because there was evidence that AR was of Egyptian background and a member of the Muslim faith. Counsel noted that the issue of her faith, and reference to the fact that she and the applicant might have sinned, had been referred to in the subsequent text communications that were tendered in evidence.

45 Counsel conceded that although the evidence of Dr Sullivan was relevant, it was not capable of substantially affecting the credibility of AR, so as to be admissible under s 108C of the Evidence Act. However, he contended, s 388 of the Criminal Procedure Act provided an alternative avenue for the admissibility of that evidence, and it did not require that the evidence be capable of substantially affecting the credit of the complainant.

46 Counsel for the respondent further submitted that the judge correctly ruled that there was no basis upon which to exclude the evidence of Dr Sullivan under s 137 of the Evidence Act. The judge, in his charge, gave a standard direction to the jury on the topic of expert evidence, and as to how the jury should evaluate Dr Sullivan's evidence. The judge reminded the jury that the prosecution relied on the evidence to assist its assessment of the complainant's evidence. No exception was taken by defence counsel to the directions so given by the judge to the jury.

47 In any case in which the admissibility of opinion evidence is in issue, the starting point is to identify precisely the fact in issue to which that evidence is claimed to be relevant. That proposition is trite, yet of fundamental importance. Plainly, evidence that is not relevant to the proof of a fact in issue is inadmissible. Further and significantly, the precise identification of the issue, to which the proposed opinion evidence is relevant, is necessary in order to determine whether, in fact, the evidence is probative of that fact in issue, and, if so, whether the witness, who is to give the evidence, is qualified to express that opinion, and whether that opinion is wholly or substantially based on the witness' expert knowledge.[10]

48 Thus, in Dasreef Pty Ltd v Hawchar the plurality, in considering ss 76 and 79 of the Evidence Act 1995 (NSW), said:

Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered 'to prove the existence of a fact'. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between 'opinion' and 'fact' or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of 'fact'. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is 'evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.[11]

49 In the present case, the prosecution contended, and the judge ruled, that the evidence of Dr Sullivan was admissible as being relevant to the jury's assessment of the credibility of the complainant AR, pursuant to s 108C of the Evidence Act and s 388 of the Criminal Procedure Act.

50 Section 102 of the Evidence Act provides that credibility evidence about a witness is not admissible. Section 108C provides an exception to that rule. It is in the following form:

108C Exception - evidence of persons with specialised knowledge

(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if -

(a) the person has specialised knowledge based on the person's training, study or experience; and

(b) the evidence is evidence of an opinion of the person that -

(i) is wholly or substantially based on that knowledge; and

(ii) could substantially affect the assessment of the credibility of the witness; and

(c) the court gives leave to adduce the evidence.

(2) To avoid doubt, and without limiting subsection (1) -

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following -

(i) the development and behaviour of children generally;

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

51 Section 388 of the Criminal Procedure Act provides:

388 Evidence of specialised knowledge in certain cases

Despite any rule of law to the contrary, in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court may receive evidence of a person's opinion that is based on that person's specialised knowledge (acquired through training, study or experience) of -

(a) the nature of sexual offences; and

(b) the social, psychological and cultural factors that may affect the behaviour of a person who has been the victim, or who alleges that he or she has been the victim, of a sexual offence, including the reasons that may contribute to a delay on the part of the victim to report the offence.

52 The effect of those provisions was considered by this Court in MA. In that case, in 2011, the accused was convicted of seven charges involving sexual assaults against his daughter, which occurred between 1985 and 1989, when his daughter was between 11 and 14 years of age. The complainant first reported that offending to the police in 2008, after she had spoken to the pastor in her church. In the trial, the defence relied on the fact that, after the complainant had made a complaint to her mother when she was about 14 years of age, she continued to reside in the family home until she was 18 years of age. Subsequently, she voluntarily returned to the home to reside with the accused and her mother until she moved out five years later. The complainant continued to maintain a family relationship with the accused. Following his separation from the complainant's mother, she was the last of the family members to maintain contact with him. It was only after the complainant became involved in her church, and spoke to her pastor, that she came to report the matter to the police.[12]

53 Unsurprisingly in MA, a large part of the cross-examination of the complainant focused on her behaviour during and after the offending, which was said to be inconsistent with her evidence that the accused had sexually assaulted her on a number of occasions. It was to rebut the defence case that the prosecution successfully applied, to the trial judge, to call expert evidence from Dr Sullivan, which was directed to establishing that that behaviour of the complainant was neither necessarily inconsistent with the allegations she made, nor an abnormal response to offending of the type that she described.

54 The Court of Appeal held that the judge was correct to admit that evidence. Osborn JA (with whom Redlich and Whelan JJA agreed), referred to the report of the New Zealand Law Reform Commission, which explained the rationale for the admissibility of such evidence. The Commission relevantly stated:

... the purpose of the evidence is educative: to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and therefore be better able to evaluate it.

Part of that purpose is to correct erroneous beliefs that juries may otherwise hold intuitively. That is why such evidence is sometimes called 'counter-intuitive evidence' ... The purpose of such evidence is to restore a complainant's credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. This is similar to the use of expert evidence to dispel myths and misconceptions about the behaviour of battered women.[13]

55 Osborn JA stated, in respect of the evidence of Dr Sullivan:

Such evidence could not establish that it was probable the complainant was telling the truth, but it could establish that her behaviour was not demonstrative of untruthfulness by reference to common or usual patterns of behaviour as asserted by the defence. In this sense, it could establish that the counter-intuitive behaviour complained of was of neutral significance. It could not demonstrate that the behaviour rendered it more or less likely that the offending had occurred as alleged.[14]

For present purposes, it is sufficient to say that Dr Sullivan's evidence as to patterns of victims' behaviour was relevant to rebut the defence case as to counter-intuitive behaviour on the complainant's behalf. The evidence bore upon the complainant's credibility as contemplated by s 55 in the specific manner contemplated by s 108C(2). It was capable of substantially affecting the assessment of the complainant's credibility as required by s 108C(1).[15]

57 In reaching that conclusion, Osborn JA noted that s 388 of the Criminal Procedure Act might provide an alternative basis for the admission of Dr Sullivan's evidence.[16] In their concurring judgment, Redlich and Whelan JJA noted that no argument in the appeal had been heard as to how s 108C of the Evidence Act and s 388 of the Criminal Procedure Act 'might interact'. Their Honours considered, by way of obiter dictum, that 'ordinarily the decision as to admissibility is likely to be the same' whether the issue of admissibility arose under s 108C or s 388.[17]

58 In M v The Queen,[18] the New Zealand Court of Appeal considered the admissibility of 'counterintuitive' evidence. In doing so, the Court cautioned against misuse of that evidence, in terms which are consistent with MA, and which apply to the question of admissibility of such expert evidence under s 108C of the Evidence Act and s 388 of the Criminal Procedure Act.

59 In that case, the Court was concerned with the admissibility of expert evidence called by the prosecution as to the behaviour of children who have been sexually abused. Having referred to the report of the Law Reform Commission, the Court stated:

The Law Commission said that the purpose of counter-intuitive evidence is to restore the complainant's credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. Mr Weir [counsel for the appellant] submitted that counter-intuitive evidence tends to go further than this, to the point of bolstering a complainant's credibility. It was no doubt for this reason that this Court said in RA v R that care must be taken to make it clear to the jury that counter-intuitive evidence is by way of general background education and says nothing about the credibility of the particular complainant.[19]

60 The Court then summarised some relevant principles concerning the admissibility of such evidence, and to the use to which it may be put. Relevantly, for the purposes of this case, it stated:

To summarise, then:

(a) In many contested cases involving allegations of sexual abuse against children, the jury's verdict will depend critically on their assessment of the complainants' credibility.

(b) Research indicates that there is a substantial risk that a jury's assessment of a complainant's credibility will be influenced by behavioural assumptions that are unjustified.

(c) Section 127 is a partial recognition of this, in that it allows a judge to instruct the jury on the question of delay in reporting abuse.

(d) In cases where such unjustified behavioural assumptions may influence the jury's assessment, expert evidence as to those assumptions may be led (assuming the requirements of s 25 are met).

(e) Where that is done, however, the judge must take care to instruct the jury as to the purpose for which the expert evidence has been led and that the evidence says nothing about the credibility of the particular complainant. This is because there may be a tendency for the jury to reason that:

• delayed reporting (for example) is common where children have been sexually abused;
• this is a case where there was delayed reporting by a child alleging sexual abuse;
• given that there was delayed reporting, the child must have been sexually abused.

To use the language of Dr London, the risk is that what is descriptive or observational information (some sexually abused children act in this way) is used as a predictive or diagnostic tool (a child who acts in this way must have been sexually abused).

(f) Where the Crown wishes to lead this type of expert evidence, the matter should be addressed pre-trial so that the parties and the trial judge know in advance precisely what the position is.[20]

61 In accordance with those principles, in an appropriate case in which it is alleged that an accused person has engaged in non-consensual sexual conduct in respect of a complainant, evidence of the kind given by Dr Sullivan, in the first proceeding, may be relevant for two possible purposes. First, it may explain conduct or reactions by the complainant at the time of the alleged offending, which, in the absence of such an explanation, might be considered to contradict or be inconsistent with the evidence of the complainant that the sexual conduct, complained of, was not consensual. Secondly, such evidence might be relevant to explain conduct by a complainant, during the period between the date of the offence and the time at which it is reported to the police, which, if not explained, might seem to contradict or be inconsistent with the evidence of the complainant that the sexual conduct, complained of, was not consensual. In either or both of such cases, the evidence would be relevant to explain counterintuitive conduct by a complainant which, if not properly understood, might lead a jury to erroneously conclude that the conduct, alleged against the accused, might have been consensual. In that way, the evidence would be directed to dispel misconceptions or 'myths' held as to the manner in which it might be expected that a victim of a sexual offence might react either at the time of the offending or in the period that followed it.

62 In addressing the question of the relevance of the evidence adduced from Dr Sullivan in the first proceeding, two points are clear. First, in his thorough cross-examination of AR, counsel for the applicant did not, at any stage, suggest that, on her version of the events, her conduct, either in the course of the incident that was the basis of the charges against the applicant, or in the period between the date of that incident and when the police spoke to AR, in any way contradicted or militated against her account that she did not consent to being penetrated by the applicant. That being so, there was no issue, in the trial, to which the evidence of Dr Sullivan could be found to be relevant.

63 We have summarised, at some length, the cross-examination by counsel of AR at the trial. The topics, to which the cross-examination was directed, concerned the circumstances in which the two acts of penetration, that were the subject of the complaint, took place. In particular, the cross-examination was designed to establish that, in the immediate prelude to each act of penetration, there had been mutual physical intimacy between the applicant and AR. Counsel did not suggest that at that time AR had conducted herself submissively in a manner which might have given a false impression to the applicant that she was consenting. Rather, the cross-examination was directed to contradict her account that the applicant continued to have intercourse with her after she withdrew her consent (in respect of charge 1) or did not consent at all (in respect of charge 2).

64 Thus, at the time at which Dr Sullivan gave his evidence, there was no suggestion, on behalf of the applicant, that AR had engaged in any 'counterintuitive' conduct that was inconsistent with her evidence. Nor was it suggested that, in the period that followed, any of the conduct engaged in by her contradicted, or in any way militated against, the veracity of her claim that the two acts of penetration were non-consensual. Thus, at the time at which Dr Sullivan gave evidence, there was no issue in the trial to which the evidence, given by Dr Sullivan, could be or was relevant.

65 Further, and secondly, disregarding the cross-examination of AR, there was, in any event, no issue arising from the evidence of AR to which the evidence of Dr Sullivan could be logically relevant.

66 As we have discussed, on the evidence given by AR, there was no equivocality or ambiguity about the way that she conducted herself on the night in question, which might have led a jury to conclude that she was in fact consenting, or had given the false impression that that was so. In the first part of the incident - that was the subject of charge 1 - her evidence was that after penetration had commenced, she expressly told the applicant to stop. The prosecution case was that the applicant disregarded that instruction, and continued to penetrate AR against her consent. By its verdict the jury had a reasonable doubt that the applicant continued to penetrate her after she withdrew her consent. In the second part of the incident - that was the subject of charge 2 - AR's evidence was that she told the applicant to stop, and that she did not want to have intercourse, before the act of penetration commenced. She said that she tried to push the applicant off her, and that she protested when he commenced to penetrate her. She also described how the applicant restrained her, by holding her hands or wrists, and pressing down on her torso and legs. Thus, there was no suggestion that by reason of cultural or other factors, AR conducted herself in a manner which might have been misconstrued by the jury as evidence of her consent, or as indicating to the applicant that she was consenting, when she in fact was not doing so.

67 In addition, there was no suggestion in the evidence that the fact, that AR was born in Egypt and was of Muslim faith, played any relevant role in the manner in which she reacted to the applicant's conduct, either at the time of the incident, or in the period before she spoke to the police about it. Thus, the references by Dr Sullivan to the potential effect of a complainant's cultural or religious background, had no relevance to any issue in the trial. Further, in the present case, while AR did not report the incident to the police, and only spoke to the police after they had contacted her on 31 May 2015, there was uncontradicted evidence that she made complaints about the conduct of the applicant during that intervening period, commencing shortly after the incident. It will be recalled that at 3.16 am on 25 April 2015 AR attempted to contact her flatmate CW. On the next morning, she contacted him by text messages stating that she had been in 'a bit of trouble' and that she had had 'an awful night'. On the following Monday, 27 April, she sent a message to a work colleague that her date with the applicant had not gone well. On 31 May, she sent a message to her friend, LB, stating expressly that although she had said to 'stop' her date had not done so.

68 The only contact that AR had with the applicant, after the incident, was in a series of text messages that passed between them commencing on 2 May 2015. In those messages, AR made it plain that, from her point of view, she had had a most unpleasant and frightening experience. The applicant commenced with a message stating that he expected an apology from AR because she had acted in a very confusing manner. AR responded in three consecutive texts, in which she said, respectively, 'An apology from me?', 'Are you serious?' and 'That was the worst night of my life'. The applicant then persisted with text messages suggesting that AR's conduct had been confusing, and that he could not consider the evening they had had together to be a 'one night stand'. AR responded with a text that included the following:

Don't lie. ... That wasn't a one night stand for me. That was the scariest night of my life and a wake up call.

69 The series of text messages that ensued between AR and the applicant were very much in the same vein, and it is not necessary to set them out at length. However, two points are clear. First, AR made it plain to the applicant that she resented his conduct, and regarded that the evening had been quite frightening. Secondly, AR did not, in any way, suggest that they should have an ongoing relationship. The only continuing relationship with them was that constituted by the text messages which we have summarised. Thus, there was no relevance to the evidence of Dr Sullivan that a number of persons, who had been the subject of unwanted sexual activity, continued to have further contact with a protagonist in a manner which might appear to contradict the assertion that they had been the subject to non-consensual sexual assault with that person.

70 In those circumstances, it is clear that none of the evidence of Dr Sullivan, that we have summarised in point form in paragraph 32 of these reasons, was or could be relevant to any issue involving the conduct of AR, either at the time of the incidents that were the subject of the two charges, or in the period that followed those incidents until the police spoke to AR. That is, in terms of s 55 of the Evidence Act, the evidence was not capable of rationally affecting the assessment of a fact in issue in the proceeding.

71 It follows, from the foregoing, that it was plain, from the outset of the trial, that the evidence, that the prosecution sought to adduce from Dr Sullivan, and which was led from him, would be, and in fact was, entirely irrelevant to any fact in issue in this trial. As we have noted, it is trite, but of particular importance, to observe the principle that evidence is only admissible in a criminal (or civil) proceeding, if it is relevant to a fact in issue. That proposition is of particular importance in a criminal trial.

72 Counsel for the respondent sought to bypass that proposition, by submitting that, while the matters about which Dr Sullivan gave evidence were not relevant to any fact that was in issue in the trial, nevertheless it was relevant for Dr Sullivan to give evidence about them, in order to preclude the jury from misusing, or misconceiving, aspects of the conduct of AR in this case.

73 That proposition must be rejected for two reasons. First, as we have outlined, there was no aspect of the conduct of AR, either during the incident in question, or in the period before the police spoke to her, which the jury could have regarded as being counterintuitive conduct, or from which the jury could have drawn a conclusion (albeit erroneously) that might have been precluded by the evidence of Dr Sullivan. Secondly, if there was any reason to apprehend that the jury might, in some way, draw a conclusion from some counterintuitive conduct by AR, such an erroneous approach by the jury could be precluded by an appropriate direction given by the judge under s 52 of the Jury Directions Act 2015. It is almost a matter of routine, in criminal trials in this State, for judges to give cautionary directions to juries, in order to ensure that they do not misuse evidence that is put before them, or use such evidence for an impermissible purpose. Most often, such directions are given in order to preclude a jury from engaging in a line of reasoning that might be impermissible and unfair to an accused person. However, equally, it is appropriate for a judge to give such a direction, where necessary, in order to ensure that a jury does not engage in impermissible reasoning that might be to the disadvantage of the prosecution. It is for that precise reason that the legislature has specified the particular direction prescribed by s 52 of the Jury Directions Act.

74 The submission made by counsel for the respondent would, if accepted, have extraordinary consequences. In essence, as counsel properly conceded, if that submission were accepted in this case, then evidence, such as that which was adduced from Dr Sullivan, would be admissible in a very large number of criminal trials in this State involving sex offences, notwithstanding that there is no issue between the parties to which that evidence is relevant.

75 It follows, from the foregoing analysis that the evidence that was adduced from Dr Sullivan in the trial was irrelevant and inadmissible.

76 The question, then, is whether, as a result of the erroneous admission of the evidence of Dr Sullivan, there has been a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act.

77 The principles, that relate to an appellate court's decision as to whether such a miscarriage has occurred, have been considered by a number of decisions of the High Court.[21] The relevant principles were conveniently summarised in the recent decision of this Court in Dailakis v The Queen in the following terms:

The principles relating to the correct application, of s 276(1)(b) of the Criminal Procedure Act, were considered by the High Court in Baini v The Queen, and have since been summarised in this Court. The principles, discussed in Baini, that are applicable in this appeal, include the following:

(1) A miscarriage may occur where the Court of Appeal cannot be satisfied that the error or irregularity, in the trial, did not make a difference to the outcome of the trial.

(2) A Court of Appeal's satisfaction that a finding of guilt, against an appellant, was inevitable, notwithstanding the error or defect in the trial, may lead to the conclusion that there has not been a substantial miscarriage of justice.

(3) In such a case, the question is not whether a guilty verdict was open to the jury. Rather, the essential enquiry is whether such a verdict was inevitable.

(4) Thus, where a respondent to an appeal seeks to establish that the verdict was inevitable, an appellant may successfully meet that point, by demonstrating no more than that, had there been no error, the jury 'may' have entertained a doubt as to his or her guilt.

(5) In considering whether a guilty verdict was inevitable, notwithstanding an error or defect in the trial, the court must act on the written record of the trial, but taking into account the natural limitations that may exist in undertaking such an analysis.[22]

78 In the present case, counsel for the respondent submitted that the admission of the evidence of Dr Sullivan did not occasion a substantial miscarriage of justice, because his evidence was of a general nature, and did not reflect on the specific issues that were to be determined by the jury in the trial. We do not accept that proposition for the following reasons.

79 First, it could not be concluded that, in the absence of the evidence of Dr Sullivan, the conviction of the applicant was inevitable. In the circumstances of the case, the first part of the incident, in which the applicant initially penetrated AR, was, on any view of the facts, consensual. The jury acquitted the applicant on the basis that it was not satisfied beyond reasonable doubt that he had continued to penetrate her after AR had withdrawn her consent. The second act of penetration, which occurred shortly after that circumstance, and which was the subject of charge 2, commenced with further mutual intimacy between the applicant and AR. The critical question for the jury was whether it was satisfied, beyond reasonable doubt, that in that context AR did, as she maintained, refuse her consent. In the context to that factual contest, it could not be properly concluded that, in the absence of the evidence of Dr Sullivan, it was inevitable that the jury would be satisfied beyond reasonable doubt that, at that point, AR did refuse her consent to being penetrated by the applicant. There was, in a very real sense, a live issue as to whether AR did, at that stage of the incident, express her lack of consent.

80 Secondly, although the evidence of Dr Sullivan was general in nature, the prosecutor, in his final address, submitted to the jury that the evidence was in fact of specific relevance to the case which it was to determine. In his final address, after referring to Dr Sullivan's qualifications, the prosecutor said:

He told you several things of particular application to this case.

81 The prosecutor then told the jury that Mr Sullivan had explained that there were a broad range of responses to unwanted sexual assault. He reminded the jury that Dr Sullivan had referred to factors such as age, gender, sexual experience, cultural and religious background and the degree of support available to a person. He then said:

I suggest to you that when you heard these things being described by Dr Sullivan, your ears would have pricked up, when you heard various of these things being mentioned.

Now I would suggest to you that Dr Sullivan was of great assistance, and you'll be able to go from the general to the specific and to apply what he said generally to the specific instance of [AR] and what she told you, her responses, what she and what she didn't do.

83 In that way, the prosecutor did make the evidence of Dr Sullivan specific to the issue of the credibility of AR in the case. In his charge to the jury, the judge did not rectify that proposition, or explain to the jury what uses it may, and what uses it may not, make of the evidence of Dr Sullivan. Rather, the judge gave to the jury the standard direction that is given to juries about expert witnesses, namely, that it is the jury, as judges of the facts, who are to evaluate the evidence, and that the jury was not required to accept the opinion of Dr Sullivan. Thus, the jury was left with the submission made by the prosecutor - which was not remedied by appropriate direction by the judge - that it might use the evidence of Dr Sullivan, in some way, to bolster the credibility of AR. That proposition was inconsistent with the principles stated by this Court in MA, and by the New Zealand Court of Appeal in M.

84 The third aspect of the evidence of Dr Sullivan, relevant to the issue of whether there was a miscarriage of justice, concerned Dr Sullivan's reference to the importance of culture and religion in assessing the response by a person to unwanted sexual activity. In referring to that aspect, Dr Sullivan principally, but not exclusively, focused on the issue of the response of the recipient to the unwanted sexual conduct. However, at one point, he went further. He said:

So in many cases culture defines what it is to ... have a particular role in the community and that's particularly so for the genders. ... [W]e see that in some cultures physically active and assertive males are privileged and in others quiet and dedicated males are privileged. So, again, culture has a strong influence on the formation of personality. (Emphasis added)

85 In that passage, Dr Sullivan went beyond discussing the reaction of the recipient of the sexual conduct, and reflected on the position of the male. Relevantly, in the present case, the jury was aware that the applicant had come to Australia from Egypt, and was of Muslim faith. The evidence given by Dr Sullivan thus had the potential to affect the jury's assessment of the conduct of the applicant, by inducing it to engage in a form of impermissible general tendency reasoning that would be prejudicial to the applicant.

86 Taken together, those three matters, to which we have referred, lead to the conclusion that as a result of the admission of Dr Sullivan's evidence, there has been a substantial miscarriage of justice. In that respect, it must be borne in mind that, in a criminal trial, expert evidence has the real potential to be given particular weight by a jury, in excess of that which it deserves. In Dupas v The Queen,[23] and in MA,[24] this Court quoted the following passage from Dawson J in Murphy v The Queen[25] concerning the dangers of wrongly admitting expert evidence:

The admission of such evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted.

87 For those reasons, we have reached the conclusion that, in the first proceeding, the application for leave to appeal against conviction must be granted, and the appeal allowed.

88 In addressing ground 3 of the application for leave to appeal against conviction, counsel for the applicant noted that evidence of complaint was adduced from two friends of the complainant, namely, LB and CW. In addition, the complainant gave evidence of having made a partial complaint to a work colleague. Further, the Facebook exchange between the complainant and LB, and the exchange of text messages between the complainant and the applicant, were tendered in evidence. At trial, counsel sought a direction to the jury that the complainant's account to LB, CW and to her work colleague did not provide independent support for the complainant's account. The need for that warning was heightened in light of the fact that the text messages and the Facebook chat had been tendered in evidence. Accordingly, counsel contended that, although s 44C of the Jury Directions Act provides that a judge is not required to give such a direction, nevertheless, in the particular circumstances of this case, it was necessary that the judge direct the jury that the evidence of the previous representations made by the complainant to her friends and colleague did not independently confirm her evidence. It was submitted that the judge erred in failing to give such a direction.

89 In response, counsel for the respondent contended that the judge did not err in not giving any such a direction to the jury. Section 44C(2) makes it plain that a judge is not required to give such a direction to the jury. In the circumstances of the case, it was obvious that the complaints made by AR, to her friends and colleague, did not provide independent support to her account. The fact that the jury discriminated in terms of its verdicts on the two charges demonstrated that it did not give improper weight to that evidence.

90 Section 44C(2) of the Jury Directions Act provides that a trial judge is not required to direct a jury that the evidence of a previous representation by a person does not independently confirm the victim's evidence of the commission of an offence against that person. However, by its express terms, s 44C does not preclude or prohibit a judge, in an appropriate case, giving such a direction. There may be cases where, in the interests of ensuring that both parties have a fair trial, such a direction should be given.

91 In the present case, the complaint by AR to CW was of short and limited compass. As we have already noted, in one of the text messages she sent to CW, AR said that she 'was in a bit of trouble'. In the next text, she said 'It was an awful night but it's over now and I made it home okay'. While both of those texts might be relevantly considered to be a complaint by AR about the conduct of the applicant, they were expressed in general terms, and lacked detail. Similarly, the message that AR sent to LB on 31 May was brief and quite unspecific.

92 The text messages that passed between the applicant and AR commencing at 8.20 am on 2 May 2015 were somewhat more explicit. However, and relevantly, the messages contained, in effect, the applicant's response to the suggestion that he had misconducted himself with AR. The gravamen of the applicant's texts to AR constituted a complaint by him that AR had acted in a very confusing manner, at one time being 'romantic' and at another time all of a sudden becoming angry. Thus, the tenor of the text messages passing between AR and the applicant not only contained the general complaint made by the applicant, but also AR's response, namely, that he had difficulty comprehending the volatile changes of AR's response while they were being intimate.

93 In those circumstances, we do not consider that the judge was obliged to give a direction to the jury that the text messages did not provide independent support to the evidence of AR. His Honour correctly directed the jury that those messages were relevant to the credibility of AR, and that they might show that her account of the events in question have been consistent. In the circumstances of the case, that direction was sufficient. Accordingly, we would not uphold ground 3 of the application for leave to appeal against conviction.

94 However, for the reasons earlier stated, we consider that the applicant has made out ground 1 and ground 1A, so that the application for leave to appeal should be granted, the appeal allowed, and the applicant's conviction on charge 2 in the first proceeding quashed.

SECOND PROCEEDING - APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

95 In the second proceeding, the applicant was charged with one count of false imprisonment, on which he was acquitted, and two counts of rape, on which he was convicted. Those charges arose from an incident between the applicant and the complainant, AF, on 6 May 2015. AF had come to Australia from Colombia in August 2014 in order to advance her career. At the time of the incident, she was 36 years of age. The applicant was sentenced to a term of imprisonment of 7 years on the first charge of rape, and 7 years and 6 months' imprisonment on the second charge of rape.

96 Sometime before the incident with which the charges were concerned, AF had created an online profile on a dating platform 'OK Cupid'. The applicant also had a profile on the same platform. In about April 2015, they started to communicate with each other. In due course, they exchanged telephone numbers. In the course of their communications, the applicant offered to help AF find employment. He said that he needed to view AF's resume, and he suggested that they meet in order to do so.

97 At about 10.00 pm on 6 May 2015, AF and the applicant met at a tram stop. They proceeded to the applicant's apartment. After a preliminary conversation, the applicant tried to hug and kiss AF. The applicant asked AF to spend the night at his apartment. He grabbed her and threw her on the bed, and removed her jumper and t-shirt. When AF tried to escape by running to the door, the applicant blocked her exit, and forced her back onto the bed. Those circumstances were the subject of charge 1 (false imprisonment), on which the applicant was acquitted. The applicant then removed AF's pants, leggings and underwear. AF requested that he use a condom. The applicant then digitally penetrated AF's vagina. That conduct was the subject of charge 2 (rape), on which the applicant was convicted. He then, using a condom, inserted his penis into AF's vagina. That action was the subject of charge 3 (rape), on which the applicant was also convicted.

98 Shortly after those events, AF got dressed and left the applicant's apartment. In the days that followed, AF and the applicant communicated with each other by way of text messages and WhatsApp messages. During those communications, AF told the applicant that she was willing to be his girlfriend, and that she liked having sex with him. In her evidence, AF said that she disclosed the incident to a friend, Mark Rocha ('Rocha') who was living in Barcelona, via Skype, and showed him a bruise on her chest. On 3 June 2015, AF told a friend, Miguel Mantilla ('Mantilla'), what had occurred. On the same day, they attended the police station, and in the days that followed she made a statement to the police.

99 On the first trial of the charges, the jury was unable to reach a unanimous or majority verdict, so that the jury was discharged without verdict. On the re-trial of the charges, most of the evidence (including the evidence of AF) was presented to the jury by an audio visual recording of the evidence that had been given in the first trial.

100 Before the empanelment of the jury, counsel for the applicant objected to the admissibility of evidence that was proposed to be adduced from Dr Sullivan, and to the admissibility of the evidence that AF had told Rocha that she had suffered a bruise during the rape. In ruling that the evidence of Dr Sullivan was admissible, the judge applied the same reasoning, that he had adopted in the ruling in relation to the evidence of Dr Sullivan that was admitted in the first proceeding (relating to the complainant AR). The judge also held that the evidence, concerning what AF told Rocha, was admissible.

101 The applicant seeks leave to appeal conviction on two grounds, namely:

Ground 1

A substantial miscarriage of justice arose as a result of:

(a) The erroneous admission of the evidence of Dr Sullivan; and/or

(b) inadequate direction as to the use of Dr Sullivan's evidence.

Ground 3

The Learned Trial Judge erred in refusing to administer a direction pursuant to section 43 of the Jury Directions Act, occasioning a substantial miscarriage of justice.

102 It is necessary, then, to summarise the evidence at the trial that was relevant to those grounds of appeal.

103 AF gave evidence that she first made contact with the applicant, on the 'OK Cupid' website, in April or May 2016. After they had exchanged telephone numbers, the applicant offered to help find her a job, because he had a friend who owned a restaurant. In due course, they arranged to meet at a tram stop on St Kilda Road. After they had met, they walked to the applicant's apartment, because the applicant told her that he could check up on her curriculum vitae on his computer in his home.

104 After they entered the apartment, the applicant pulled a chair next to his bed, and AF sat on it. The applicant sat on his bed. They drank some soda or coca cola, had a smoke, and talked together. The applicant asked AF, a number of times, if she wanted to be his girlfriend. At that stage AF felt uneasy, and she asked if she could use the bathroom. When she returned, they continued to talk. The applicant was sitting on the bed, but was leaning towards AF. He tried to hug and kiss AF. She permitted him to hug her, but not to kiss her. She then tried to push the applicant away. The applicant told her that he wanted her to stay at his house. He said that she could sleep on the bed, and he would sleep on the couch. AF responded that she had classes the next day, and she needed to go home to study for them.

105 When she had been in the bathroom, she had seen some moisturiser. So, in order to distract the applicant, she asked him for some moisturiser on her hand, and he gave her some. She said that she felt as if the applicant was 'controlling' all the space around her. Then, at some stage, he threw her onto the bed and removed her sweater and t-shirt. She said to him that she wanted to go to the toilet. The applicant permitted her to stand. She ran towards the door, and, while doing so, grabbed the applicant's mobile telephone. However, the applicant retrieved the telephone, and blocked her path to the door, saying to her 'You cannot leave naked'.

106 The applicant then pushed AF back onto the bed, and got on top of her. He removed her pants and underwear. AF tried to scream, but the applicant grabbed her around the throat and started to choke her. AF said that she did not have enough strength to fight him, so she gave in. She begged the applicant to use a condom. He put his fingers in her vagina (charge 2). He then put on a condom and introduced his penis into her vagina, penetrating her (charge 3). After he had done so, AF got up, put her clothes back on, and left the apartment.

107 After she had left the applicant's apartment, AF realised that she did not have her spectacles with her. She returned to the applicant's apartment and knocked on the door. At her request, the applicant returned her spectacles to her. After she left, and was walking down the road, the applicant sent her a text message that she had left her wallet in his apartment. When AF realised that she did not have her wallet with her, she returned again to the apartment, and the applicant gave her her wallet. She then left and went home.

108 In her evidence-in-chief, AF was taken through a number of text messages that had been passed between herself and the applicant leading up to their meeting that evening. She was then taken to further text messages that passed between them after she had left the applicant's home. In the first such message, which she sent to the applicant at 11.36 pm, she asked him 'Are you my boyfriend?'. In her evidence, AF said that she sent that message, because the applicant had raped her repeatedly and asked if she wanted to be his girlfriend. She said she wanted to keep in contact with him, because she wanted to be able to take revenge and get justice done 'because of what he had done to me'.

109 In the messages that followed, the applicant asked AF 'why she did not seem happy with him, and why she kept pushing him away. AF responded 'No, is really'. Subsequently, the applicant sent her a text message 'So are you my girlfriend now?' to which she responded 'If you are nice with me and good'. In a subsequent text, she responded to the applicant saying 'Good night my bf', with 'bf' standing for 'boyfriend'. Seven minutes later, the applicant asked her 'Did you like sex with me?', to which she responded 'Of course'. Two minutes later, she sent a text stating 'Do you want again?'. In evidence, she said she wanted to keep the applicant 'Hooked up', because she needed to take revenge.

110 On the following day, at 12.41 pm the applicant sent a text to AF stating that he wanted to 'Fuck [her]', to which AF responded 'Of course, I like you'.

111 AF stated that, as a result of what occurred, she received a bruise to her upper chest level. She said that Rocha was a person with whom she communicated on the internet. A couple of weeks after 6 May, she spoke to Rocha, and told him that she had 'met a person and that that person wanted to have sexual access to me but I didn't let him'. She told Rocha that that person had caused bruising to her body. Rocha responded that she should go to the police.

112 In her evidence, AF said that she had not gone to the police, because she had no idea where the police station might be, she did not know the emergency numbers for the police, and did not know how to deal with the police.

113 On 3 June 2015 Mantilla, a friend, came to AF's house. She told him that she had met a man on a tram, and had accepted to go to his house, where he tried to rape her. In her evidence, AF said that she gave that version to Mantilla, because in Colombia it is not acceptable for people to meet on dating websites. She said she did not tell Mantilla that she had been raped, because she did not trust Mantilla that much, she felt very guilty, she felt she had put herself in that position, and that Mantilla was going to judge her. However, on the following day she met again with Mantilla and told him the truth, that the 'guy had raped me ... that I met ... on a dating website'. As a result they went to the police station and reported the matter.

114 In cross-examination, AF agreed that she knew that 'OK Cupid' was a dating site. She said that she used that site in order to meet people and make friends. She agreed that, based on the applicant's photographs and reading his profile, she thought he was reasonably attractive. However, she did not discuss with the applicant anything about having a romantic date together. Rather, they met in order that they could review her CV, which she had formulated while she was in Colombia, and make any changes that were necessary for the local market. She also said that, after they arrived at the applicant's apartment, at no time did he want to talk about her employment prospects. Rather, he kept asking AF whether she liked him. Counsel then put to AF a series of questions which suggested that, before the applicant penetrated her, they had engaged in mutual intimacy. AF denied each of the propositions that were put to her to that effect. She said that when he digitally penetrated her vagina, he did so without her consent. At that point, she was 'feeling totally defeated and I gave in'. She said that she begged the applicant to put on a condom 'because I knew he was going to rape me'.

115 AF agreed that, before she spoke to the police on 3 June, she had never had any problems with police in Australia or Colombia. However, she added that in Colombia, the police are very corrupt, and when you go to them with a problem, you can 'end up in even more of a big thing than the original problem you had before'. She agreed, however, that she had no previous experience in Australia, which would have made her distrustful of the police. She understood that if she was a victim of a crime, she could report it to the police in Australia. She said that she did not know where the police station in St Kilda was, because she had moved three times. She agreed that she could have looked up the address or telephone number of the police on the internet.

116 AF said that she regarded Rocha as a close friend. She said that she asked Rocha whether he would make a statement to the police, and he said he did not want to get involved. AF confirmed that she had never provided the police with the contact details of Rocha. She said that the police had Rocha's contacts on Facebook and his username, and they could contact him through that medium. AF agreed that Rocha was the only person who saw any bruise on her chest. She did not show the bruise to Mantilla. She did not take a photograph of the bruise. By the time she spoke to the police, the bruise had healed. AF agreed that when she made her statement to the police in June 2015, she made no mention about showing her bruise to Rocha. The first occasion, upon which she told that to anyone, was in November 2017 in a conference with the prosecution. She also told the prosecution that she found no records of the Skype conversation that she had had with Rocha. She said that she was unable to produce any record of the conversation. However, at some point between June 2015 and November 2017, she had seen a record of that conversation.

117 Counsel then cross-examined AF concerning the content of the messages that passed between herself and the applicant following the incident that occurred in the applicant's apartment. Counsel drew AF's attention to the fact that she signed a text 'Bye B' meaning 'Bye Baby', and used emoji depicting kisses. AF said that she did that because she wanted to keep in contact with the applicant, because she wanted to 'keep him hooked'. She wanted to be able to get revenge and get justice for what the applicant had done to her. She denied that she wanted to have any sort of continued relationship with the applicant. She pretended, in the messages, that she was interested in him. She said that she never met the applicant again, and denied the suggestion (put in cross-examination) that she had met him at a tram stop on 15 May.

118 Mantilla gave evidence that he came to Australia from Colombia in 2013. He first met AF in 2015 when she was looking for a room to rent. In May 2015, he received a telephone call from AF. She sounded upset. Accordingly, Mantilla visited AF. She was very upset and said she wanted to leave Australia. She said she had contact with a man on the internet, and she met with him because he was going to help her. She told Mantilla that when she went to his apartment, he wanted a kiss from her and wanted to be her boyfriend. She said that the man removed her top, she tried to escape, but was unable to do so. She said that the man raped her. Mantilla told AF she should see the police. Either on the same day, or on the next day, Mantilla spoke to AF, and took her to the St Kilda Road Police Station.

119 Before the commencement of the trial, the prosecution gave notice that it intended to call evidence from Dr Sullivan in relation to seven matters, namely:

(a) There are no 'normal' or 'usual' responses to rape or other unwanted sexual activity. Factors which may influence the response are broad;

(b) The majority of rapes are not reported to police, and in many cases reports are significantly delayed, at times by years;

(c) Sexual assault is less commonly a behaviour perpetrated by strangers but is more likely to occur with acquaintances, friends or even partners;

(d) Delayed reporting may be particularly associated with shame and fear of stigma, particularly when individual, social, cultural and religious factors condemn premarital or extramarital sexual activity;

(e) Issues of shame may be associated with cultural and religious attitudes towards virginity, monogamy, fidelity and premarital sex. People who have arrived recently in Australia may be more uncertain about social and cultural mores than those who have been in the country for many years;

(f) Confusion about what occurred, ambivalent attitudes towards the protagonist, shame, and uncertainty about relationship status may result in sustained contact notwithstanding earlier sexual assault;

(g) Reactions at the time of rape are extremely variable.

120 At the commencement of the trial, counsel for the applicant formally objected to the admissibility of that evidence. However, he conceded that, in light of the First Ruling given by the judge (in respect of the first proceeding), there was no utility in re-arguing the issue. The judge accordingly adopted that ruling as expressing his reasons for holding that the proposed evidence, to be called from Dr Sullivan, was admissible.

121 In giving evidence at the trial, Dr Sullivan did not cover each of the matters that had been foreshadowed by the prosecution. It is, again, convenient to summarise the salient aspects of his evidence in point form. Dr Sullivan stated:

(1) There are no normal or usual immediate responses to unwanted sexual activity.

(2) The factors which may influence a person's immediate response to unwanted sexual activity include the person's age, background, cultural background and personality.

(3) The cultural background of a person may be relevant, because a victim may come from a background in which sexual activity is frowned upon or in which women are not meant to assert themselves. People within certain religious faiths will have trouble processing the fact that it is a sexual assault, or will have a stereotype about how it is that the person is meant to respond.

(4) The majority of people, who are subject to unwanted sexual activity, do not immediately report the sexual assault to the police. This is particularly so where the attacker is known to the victim.

(5) Cultural responses are particularly relevant in that regard. Talking about sexual matters with a male interviewer can result in feelings of shame, particularly in the case of women from some cultural backgrounds. Some women come from backgrounds which are strongly patriarchal, in which women have a lesser or subjugated place to men, and in which women's voices are not as easily heard, and the sexual expression of women is not acceptable.

(6) In addition, some victims may have had previous interactions with police, which have left them mistrustful or they may have expectations that the police will not hold their confidence or investigate or treat them properly.

(7) Most of the research studies suggest that a significant minority of people will continue to have further sexual contact with the person who has sexually assaulted them.

122 The final witness, on behalf of the prosecution, was Detective Sergeant David Quirk of the Moorabbin Sexual Offences and Child Abuse Investigations Unit. He confirmed that on 3 June 2018 AF, in company with Mantilla, attended the Moorabbin Police Station. In the following days, with the assistance of a Spanish interpreter, she made a statement to the police. In cross-examination, Detective Sergeant Quirk confirmed that the police were never provided with the contact details of Rocha, so that the police have not been able to contact him. In the ordinary course of events, Rocha would have been a witness to whom the police would wish to speak. He also confirmed that the first occasion, upon which AF had mentioned that she had shown Rocha a bruise, was on 23 November 2017.

Submissions on ground 1 of application for leave to appeal against conviction

123 In addressing ground 1 of the application for leave to appeal against conviction, counsel noted that the evidence of Dr Sullivan was admitted in the trial as 'counterintuitive evidence', so as to dispel assumptions that a jury might have about the manner in which the complainant had conducted herself either during or after the alleged sexual offence. However, he submitted, such evidence cannot be substituted for an explanation for such conduct, which is alternative to an explanation expressly proffered by a complainant for her conduct, and which the jury does not accept.

124 In the present case, it was submitted, that is precisely what occurred. In her evidence, AF said that she did not go to the police after the assault, because she did not have any idea where the police station might be. Subsequently, in cross-examination, she made the observation that Colombian police were corrupt, but she did not say that that was her reason for not going to the police in Australia. In his evidence, Dr Sullivan stated that mistrust of police may be a factor why unwanted sexual activity is not reported to police. He also gave evidence of the relevance of cultural background to reporting rapes. In those circumstances, it was submitted, there was a risk that the jury might have combined AF's observation about police in Colombia, with Dr Sullivan's evidence as to why complainants may not report to police, in order to substitute or supplement the reasons that AF gave for her delay to make complaint to the police, or to obviate the need for the jury to examine the reason she actually gave, in determining her overall credibility. In either case, such a use by the jury of Dr Sullivan's evidence would have been impermissible.

125 Similarly, it was submitted, the complainant gave evidence as to her reason for maintaining contact with the applicant, and for sending him text messages which reflected that their sexual encounter had been consensual. She said that she had conducted herself in that way in order that she could visit revenge on the applicant. Thus, it was irrelevant for Dr Sullivan to give evidence, as he did, that a significant minority of people continue to have further contact with a person who has sexually assaulted them, and for Dr Sullivan to proffer reasons for such conduct. Again, there was a risk that the jury might have substituted, for the complainant's express explanation for her conduct, the evidence given by Dr Sullivan, so as to deflect the jury from a proper assessment of the credibility of the explanation so given by the complainant. Further, counsel noted, Dr Sullivan made repeated reference to a person's cultural background as a significant factor bearing on responses to rape and unwanted sexual activity. However, there was limited evidence relating to AF's cultural background. Thus, there was a risk that the jury might incorporate the evidence given by Dr Sullivan, concerning that factor, in an impermissible manner.

126 Counsel contended that the problem, relating to Dr Sullivan's evidence, was exacerbated by the judge's charge. The judge outlined to the jury that Dr Sullivan did not give evidence about the specific case, and he identified the factors stated by Dr Sullivan that may influence responses to rape and unwanted sexual activity. However, the judge did not explain to the jury the use it was permitted to make of Dr Sullivan's evidence. In those circumstances, in the absence of such a direction, it was likely that the jury was not aware as to how it ought not to use the evidence.

127 Counsel contended that, in a case in which the delay in reporting was not long, and where AF had given specific reasons for her behaviour, the counterintuitive evidence of Dr Sullivan was of little (if any) probative value. By contrast, the risk of unfair prejudice, through misuse of it by the jury, was high. In those circumstances, it was contended, the evidence ought not to have been admitted, and its admission has occasioned a substantial miscarriage of justice.

128 In response, counsel for the respondent submitted that the judge did not err in admitting the evidence of Dr Sullivan. That evidence was relevant, notwithstanding that the defence did not explore, in cross-examination or final address, the issue of delay in reporting to the police, and the maintenance of subsequent communications between AF and the applicant. Counsel contended that the evidence, nevertheless, was designed to dispel myths or misconceptions, that might be held by members of the jury, concerning that delay, and the conduct engaged in by AF after the incident. The creditworthiness of AF was a central issue in the trial, and the evidence of Dr Sullivan was relevant to the jury's assessment of it. Counsel contended that Dr Sullivan's evidence was relevant, because it assisted the jury to assess the explanations given by AF as to her subsequent behaviour. It was submitted that, in the absence of that evidence, the jury might impermissibly devalue that evidence, due to misconceptions it held, rather than as a result of rational or logical process of reasoning.

129 Counsel for the respondent submitted that Dr Sullivan's evidence as to the reasons for delay in reporting was relevant, because in the present case there was some delay before AF spoke to the police about the matter. The evidence given by Dr Sullivan concerning issues such as shame and stigma was relevant, in light of the evidence given by AF that she felt embarrassment revealing the circumstances of the attack even to Mantilla. She said that she felt guilty and was concerned that he might adversely judge her. In the present case, AF gave evidence that according to Colombian cultural values it was improper to arrange meetings through the medium of dating websites.

130 Accordingly, it was submitted, the evidence of Dr Sullivan did not impermissibly bolster the weight to be attached to the evidence of AF. Rather, it precluded the jury from undertaking impermissible lines of reasoning that might otherwise have been engaged in by the jury. In his final address, the prosecutor did not employ the evidence of Dr Sullivan in order to bolster the evidence of AF, but rather to preclude the jury from engaging in reasoning which would be inconsistent with empirical scientific studies.

131 Counsel for the respondent further noted that the judge gave orthodox directions to the jury concerning the evidence given by Dr Sullivan as an expert witness. Counsel for the applicant at trial did not take exception to those directions. The directions were sufficient to have enabled the jury to understand how it was to approach the evidence of Dr Sullivan. There was no danger of the jury misusing the evidence, in light of the explanation given to the jury that his evidence was of a general nature on the topic of failing to report incidents of sexual assault. Accordingly, counsel submitted that the judge's ruling, that the evidence of Dr Sullivan was admissible, was correct.

132 On analysis, the conclusion is irresistible that the evidence that was adduced from Dr Sullivan was irrelevant to any issue in the trial, and accordingly was inadmissible.

133 As we have discussed, in accordance with the principles discussed in MA, and in the New Zealand decisions, in an appropriate case, the nature of the evidence that was given by Dr Sullivan may be relevant for two purposes. First, it may provide an explanation for conduct engaged in by a victim of sexual assault, at the time of the offence, which, if unexplained, would be considered to be counterintuitive. Secondly, such evidence might provide an explanation for conduct by a person who has been the recipient of unwanted sexual activity in the period between the date of the offence and the time at which the matter is reported to the police, where, if such conduct was not explained, it would be ordinarily inconsistent with that of a person who has been sexually assaulted. It is clear, on the facts of the case that was adduced on behalf of the prosecution in the second proceeding, that Dr Sullivan's evidence did not, and could not legitimately, be deployed to perform either such function.

134 In relation to the first matter, there was no suggestion in the evidence of AF that, at the time of the offending, she acted in a manner which might be considered to be inconsistent with that of a person who was being subjected to a non-consensual sexual assault. In her evidence, AF stated that almost from the outset she resisted any attempt by the applicant to become physically amorous with her. When he tried to kiss her, she attempted to push him away. She said that she did not wish to stay the night, because she had classes the next day. She said that when the applicant then became physically aggressive towards her, she resisted. She tried to escape and he blocked her path. She tried to scream, but was prevented from doing so because the applicant grabbed her around the throat.

135 Thus, if the jury accepted AF's evidence as to what occurred in that incident, the conduct of AF could not be misconstrued as in some way evidencing the possibility that she might have been consenting to the two acts of penetration which constituted the charges on which the applicant was convicted. That is, there was no counterintuitive conduct by AF, at that point, which required some form of explanation such as that proffered by Dr Sullivan. Hence, there was no relevance to the evidence of Dr Sullivan as to a number of matters. They include his evidence that there are no normal or usual responses to rape or other unwanted sexual activity, and his evidence that factors, which may influence a person's immediate response to such activity, include a person's age, background, cultural heritage and personality. There was no suggestion that AF's culture or background, her age or personality, caused her to act in a manner which might be misconstrued, either by the jury, or indeed by the applicant, as conveying consent to the applicant's unwanted sexual activity.

136 The second aspect, of Dr Sullivan's evidence, related to the conduct of a recipient of unwanted sexual activity between the date of the offence and the time at which it comes to the attention of the authorities. In the present case, there was, quite plainly, a very live issue relating to the conduct of AF between the date of the offences and the date on which she spoke to the police. On the face of it, and without explanation, AF's conduct, during that period, was plainly inconsistent with that which might ordinarily be expected of a person who has been subjected to offences of rape in the manner described by AF. In particular, during that period, AF engaged in a number of text messages with the applicant, in which she conveyed to him her affection for him, and in which she used language, and emoji, to express her feelings towards the applicant. The text messages that passed between AF and the applicant were also quite explicit in describing their mutual enjoyment of their sexual relationship, the applicant's desire to continue such relationship with AF, and AF's assent to his suggestions that they should do so.

137 In those circumstances, the defence at trial had a strong basis upon which to impugn the credibility of the account given by AF of the circumstances in which she claimed to have been raped by the applicant in his apartment. Unsurprisingly, counsel for the applicant addressed those topics, both in cross-examination, and in his final address.

138 However, and most importantly, the conduct of AF during that period, in engaging in that text communication with the applicant, and her delay in reporting the offences to the police, was the subject of express explanation by AF in her evidence-in-chief. As we have earlier set out, when asked by the prosecutor why she engaged in those text messages, AF responded that she wanted to get the applicant 'hooked' so that she could exact revenge on him in due course. She made it plain, on a number of occasions in her evidence, that her strategy was to keep in contact with the applicant and to beguile him into believing that she wished to continue a sexual relationship with him, so as to be able, at some stage, to extract retribution from him for his conduct.

139 In those circumstances, it was quintessentially a matter for the jury as to whether it accepted that explanation by AF of her conduct which would otherwise have been quite inconsistent with her complaint that she had been raped. The fact, that AF gave that explanation for her conduct in that way, rendered irrelevant any alternative explanation which might be derived from the evidence given by Dr Sullivan. For example, Dr Sullivan's evidence that some victims of sexual assault are precluded by matters such as shame, culture or religion from articulating a complaint about the conduct, was irrelevant to the present proceeding. Similarly, the evidence of Dr Sullivan that some victims, because of their religious faiths and backgrounds, may have difficulty processing the fact that their experiences of sexual assault, was irrelevant. Dr Sullivan's evidence, that research suggested that a significant minority of people would continue to have sexual contact with a person who has assaulted them, was similarly immaterial. AF did not have any further sexual contact with the applicant. She gave an express explanation for engaging in text messages which suggested that she was interested in such contact.

140 AF also gave an express explanation as to why she did not report the matter to the police for almost one month. She said:

I just didn't have any idea of where the police station might be. I didn't know the numbers of the emergency number for Melbourne. I just didn't have any knowledge at all of how to deal with that, with the police.

141 In that explanation, AF did not state, at all, that she did not trust the police, or that she had had an unpleasant or difficult previous experience with the police which deterred her from reporting the applicant's conduct to them. In cross-examination, she did say that the police in Colombia are corrupt. However, she also agreed that she had had no previous dealings with police in Australia, and she had no reason to distrust them.

142 In view of that express explanation given by AF, it was irrelevant for Dr Sullivan to give evidence that some victims of sexual assault may have had previous interactions with police, which left them mistrustful, or that they may have expectations that the police would not hold their confidence or investigate or treat them properly. There was nothing in the testimony of AF which suggested that that alternative explanation may have accounted for the fact that she did not report the applicant's conduct to the police until one month later.

143 For those reasons, it may readily be concluded that the evidence given by Dr Sullivan was irrelevant. Further and importantly, the jury was given no guidance as to precisely what the relevance of the evidence was. When counsel for the applicant first objected to the evidence of Dr Sullivan, the judge, in effect, ruled that the evidence was admissible for the same reasons that he had given in relation to the first proceeding involving the complainant AR. It will be recalled that, in that proceeding, the judge ruled that the evidence of Dr Sullivan was relevant, because it would allow the jury to properly assess the complainant's credibility and reliability. However, in the second proceeding, before Dr Sullivan's evidence was played to the jury, the judge gave the following direction:

His evidence says nothing about the credibility of the complainant in this matter or whether what she alleges actually occurred. I instruct you that if you accept the evidence, you should not reason that the fact that the complainant behaved in one or more of the relevant ways is of itself indicative that the alleged events did or did not occur. So he's just giving general evidence. It's a matter for you as to whether you accept it. And it's not about this specific case and he's not giving evidence as to whether or not the complainant is giving true evidence or false evidence.

144 In his final address, the prosecutor also gave little assistance to the jury as to what use it may or may not make of the evidence of Dr Sullivan. The prosecutor told the jury that it may consider that his evidence was 'very interesting', and he summarised parts of that evidence for the jury. In doing so, he told the jury that if it was previously of the belief that most victims of sexual assault reported the assault to the police, having heard Dr Sullivan's evidence, the jury would know that the majority do not do so. Pausing there, that observation was plainly irrelevant, given the explanation by AF for the fact that she had not reported the matter to the police for one month. The prosecutor then referred to matters such as 'feelings of shame' involving people from cultural backgrounds with 'strong patriarchal communities'. That aspect of Dr Sullivan's evidence was, again, irrelevant. Having proceeded further, the prosecutor then concluded:

After hearing from Dr Sullivan if you thought that full well we're all better informed aren't we?

145 The judge, in his charge to the jury, again directed that Dr Sullivan's evidence '... says nothing about the credibility of the complainant in this matter or whether what she alleges actually occurred'. While that direction - and the preliminary direction that he gave before Dr Sullivan's evidence was played to the jury - was of itself correct, it was contradictory to the reason why the judge admitted the evidence in the first place. Further, and importantly, while giving that cautionary direction to the jury, the judge did not explain to the jury how it might legitimately use that evidence.

146 In summary, then, the evidence adduced from Dr Sullivan was irrelevant to any of the issues in the trial. Further, the judge gave no explanation to the jury as to what the relevance of the evidence was, or as to why it was being led in the trial. The jury, in those circumstances, was left with evidence, called from an expert witness, which was irrelevant, but which, of its very nature, was given with the authority of a witness who was well qualified as an expert in the field of forensic psychiatry.

147 In those circumstances, we are persuaded that the admission of the evidence of Dr Sullivan did result in a substantial miscarriage of justice. The critical issue in the trial concerned the credibility of the evidence of AF, that the two acts of sexual intercourse, engaged in by the applicant with her, were non-consensual. The prosecution case depended on the credibility of AF's evidence to that effect. As we have stated, the conduct, engaged in by AF during the period before she spoke to the police, was, in the absence of any appropriate explanation, quite inconsistent with the conduct of a person who has been subjected to the kind of sexual assault complained of by AF. Thus, a critical aspect of the trial concerned, first, the credibility of the reasons given by AF for her exchange of text messages with the applicant which plainly conveyed that she felt amorous and sexually attracted towards him, and, secondly, the credibility of her explanation as to why she did not attend the police station and report AF's conduct to the police for a period of almost four weeks.

148 On the face of it, AF's explanations, for those two matters, were not particularly convincing. In those circumstances, in our view, there was a realistic possibility that, if the jury were not satisfied with the explanations given by AF for her conduct, it might have impermissibly relied on the evidence of Dr Sullivan as providing an alternative explanation for her conduct. The risk that the jury might have engaged in such an impermissible intellectual process, was enhanced by the fact that, at no time during the trial, was it explained to the jury what use it may make of the evidence of Dr Sullivan. We interpolate that no such explanation was given, because, on a proper analysis, the evidence was irrelevant. Nevertheless, while the jury was cautioned against using the evidence in relation to the credibility of the complainant, that general caution was insufficient to preclude the jury from accepting some of the factors referred to by Dr Sullivan as an alternative explanation for the conduct of AF after the offence.

149 As we have mentioned when discussing the first proceeding, it is the experience of the courts that juries may give undue weight to expert evidence. In the present case, the fact that Dr Sullivan was a highly qualified and experienced forensic psychiatrist, who gave evidence based on his long-standing expertise and studies of the literature, invested his evidence with a particular sense of authority and weight. It is those considerations which added to the potential for the jury to be persuaded by such evidence to substitute, for the explanations given by AF, the evidence of Dr Sullivan, in order to explain AF's conduct, both in engaging in the text messages with the applicant after the offending, and in not reporting the offending to the police for a month.

150 In the present case, it could not be concluded that, if Dr Sullivan had not given evidence, the conviction of the applicant was inevitable. There were many aspects of AF's conduct, that were the subject of cross-examination, which might have caused the jury to have some reservations. It is in respect of those aspects that, we apprehend, the jury may have been influenced by the evidence of Dr Sullivan in a manner which was quite impermissible.

151 For those reasons, we are persuaded that ground 1 of the application for leave to appeal against conviction must be allowed, and the appeal of the applicant against his convictions in the second proceeding be allowed.

152 In view of that conclusion, we will deal, only briefly, with ground 3 of the application for leave to appeal conviction.

Submissions on ground 3 of application for leave to appeal conviction

153 In support of ground 3, counsel for the applicant noted that, as a result of the refusal of the complainant to provide to police the contact details of Rocha, the police did not take a statement from him, and he was not called to give evidence. At trial, defence counsel sought a direction, pursuant to s 43 of the Jury Directions Act, as a result of the failure of the prosecution to call or question Rocha. That course was opposed by the prosecutor. The judge refused to give the direction on the basis that the prosecution was not obliged to call the witness 'on the other side of the world' who had indicated that he would not cooperate with the police, and that the prosecution had adequately explained why that witness had not been called.

154 On this application, counsel contended that Rocha was the only witness capable of contradicting the complainant's account about having sustained a bruise, or about having made a complaint of sexual assault before AF contacted the police. Thus, he was an important witness. The police did not appear to have made any effort to contact him. Accordingly, there was good reason for the direction that was sought. In the circumstances, the judge was obliged to give a direction to the jury pursuant to s 43 of the Jury Directions Act as to the failure of the prosecution to adduce evidence from Rocha. The judge's failure to do so, it was submitted, had resulted in a substantial miscarriage of justice.

155 In response, counsel for the respondent submitted that at trial the prosecution had satisfactorily explained why it did not call or adduce evidence from Rocha, pursuant to s 43(2)(b) of the Jury Directions Act. Rocha was not available, he resided in Barcelona and he did not wish to contact the prosecution. There was therefore no legal avenue by which the prosecution could have called evidence from Rocha. Accordingly, it was submitted the judge was correct not to give a direction pursuant to s 43 of the Act.

156 Section 43(1) of the Jury Directions Act provides that, if the prosecution does not call or question a particular witness, defence counsel may request that the judge give a direction to the jury on that fact. The subsection provides that in giving such a direction the judge may inform the jury that it may conclude that the witness will not have assisted the prosecution case. Such a direction is based on the principle stated by the High Court in Jones v Dunkel.[26]

157 Section 43(2) provides:

(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution -

(a) was reasonably expected to call or question the witness; and

(b) has not satisfactorily explained why it did not call or question the witness.

158 In the present case, it is clear that, if Rocha was available, the prosecution might reasonably have been expected to have called him to give evidence. In her evidence, AF stated that sometime after 6 May 2015 she spoke to Rocha either on Facebook or Skype, she told him that she had met a person who had wanted to have sexual 'access' to her, but she did not let him. She also told Rocha that in that incident she had sustained bruising to her upper chest, and, in her evidence, she said that she showed that bruising to Rocha. Clearly, the evidence, not only that AF made that complaint to Rocha, but also that he saw bruising which she said she had incurred in the course of her struggle with the applicant, was important in the context of the case.

159 The question, then, is whether it had been satisfactorily explained to the jury why the prosecution did not call Rocha as a witness. The judge concluded that such an explanation had been given, because Rocha 'lived on the other side of the world'. Such an explanation was, on its face, plainly inadequate. However, the evidence went a little further than that. Both AF and the informant gave evidence that AF did not provide to the informant any contact details for Rocha. AF also added that the police could have ascertained his contact details on Facebook and from his username. On the other hand, the informant stated that the first time the police were told anything about Rocha was on 23 November 2017, in the first trial of the second proceeding (in which the jury was discharged without verdict).

160 On the evidence of AF, Rocha was a relevant witness. She did not wish to disclose his contact details to the police. That explanation was plainly insufficient. If, as AF maintained, Rocha was a person who knew of an important aspect about the case - the bruising to her chest - it was not a matter for her to determine whether or not he should be called as a witness. That is, the fact that a complainant will not cooperate in disclosing the contact details of a relevant witness, does not constitute a sufficient explanation why that witness was not called on behalf of the prosecution. The fact that the witness is living 'on the other side of the world' is of no moment in the modern times. Such a witness could have been interviewed, and given evidence, by audio visual technology.

161 In those circumstances, we consider that the judge erred in failing to give to the jury a direction under s 43(3) of the Jury Directions Act, despite being requested to do so by defence counsel. Of itself, we do not consider that the failure of the judge, to give that direction, resulted in a substantial miscarriage of justice. However, the failure of the judge to give that direction did add to the injustice occasioned to the applicant as a consequence of the erroneous admission of the evidence of Dr Sullivan.

162 For the foregoing reasons, the application for leave to appeal the applicant's convictions in the second proceeding must be granted, the appeal allowed, and the convictions of the applicant quashed.

THIRD PROCEEDING - APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

163 In the third proceeding, the applicant was charged with one count of rape, on which he was convicted. That charge arose from an incident between the applicant and the complainant, KL, on 21 May 2015. KL had come to Australia from Hong Kong on the previous day in order to look for employment. At the time of the incident, she was 30 years of age. The applicant was sentenced to a term of imprisonment of 7 years and 6 months, three years of which were directed to be served cumulatively on the sentences imposed in respect of the charges on which the applicant was convicted in the first and second proceedings.

164 In April 2015, KL and the applicant connected on the internet application 'OK Cupid' while KL was living in Hong Kong. KL had previously spent some time in Australia, and at that time was planning to return in the coming months. The applicant and KL exchanged telephone numbers, and they communicated on WhatsApp as well as OK Cupid. In the course of those communications, the applicant made an offer to KL that she could stay at his apartment when she arrived in Australia until she established herself with employment and a place of her own. During those communications, the applicant told KL that his apartment had two bedrooms.

165 When KL arrived in Melbourne on 20 May 2015, she met with the applicant at a tram stop near his apartment on St Kilda Road. While they were walking to the apartment, the applicant told KL that he did not have a two bedroom apartment anymore. He told KL that he would sleep on the floor and she could use the bed.

166 After their arrival at the apartment, the applicant and KL had consensual sexual intercourse, and they had a shower together. That night, they went out to dinner together with KL's friends. On returning to the apartment, KL slept in the bed and the applicant slept on the floor. On the next morning, after he awoke, the applicant entered the bed where KL was lying. He attempted to become intimate with KL, but she told him she did not want to have sexual intercourse with him. Despite her resistance, the applicant removed KL's pants, used his legs to prevent her from moving, and held her hands and wrists. He then penetrated her vagina with his penis, although she again reiterated that she did not want to have sex with him. While doing so, the applicant bit KL on the lip. It was those circumstances, as described by KL in her evidence in the trial, that constituted the charge of rape.

167 KL remained at the applicant's apartment during that day. In the evening, the police arrived to execute a search warrant based on other complaints received by them about the applicant. KL answered the door, and told the police what had occurred between the applicant and herself that day. The applicant was interviewed by the police on the next day. He denied that KL had not consented to having intercourse with him. In doing so, he said:

And if she ever said that she doesn't like to have sex, I would have stopped having sex with her.

168 The prosecution called three witnesses, namely, KL, a medical practitioner who examined KL, and the informant. Shortly before the informant gave evidence, the prosecution sought to tender a copy of the applicant's residential lease dated 26 February 2015. Counsel for the applicant objected to the admissibility of the lease. The judge ruled that the lease was admissible, because it was relevant to the credibility of the denials by the applicant of the alleged offending in the record of interview.

169 The one ground upon which the applicant seeks leave to appeal is directed to that ruling. By that ground, the applicant contends:

The Learned Trial Judge erred in permitting the prosecution to adduce evidence of the Applicant's residential lease as bearing on the credibility of the Applicant's denials in his police interview.

170 KL gave evidence as to the communications she had with the applicant before she had arrived in Melbourne. She said that, in the course of those communications, the applicant had told her that he had a two bedroom unit or apartment. After she arrived in Melbourne on 20 May 2015, she travelled by train to the Windsor area. There she met the applicant at a tram stop at about 11.00 am. They then walked together to the applicant's apartment. While doing so, the applicant wanted to hold her hand, but she told him not to do so.

171 KL then said that they arrived at the apartment block. The applicant's apartment did not have two bedrooms, but was a 'studio apartment'. The applicant offered that KL would sleep on the bed and he would sleep on the floor. The applicant and she then spent time together in the apartment during the afternoon. In the evening, they were on the balcony together, and the applicant kissed her. They went back inside the apartment, and had consensual sexual intercourse. After that, they had a shower together. At that time, KL told the applicant she was unsure who she was in love with. She had another person who she liked or loved, and she was feeling a bit guilty about having intercourse with the applicant. She told the applicant she needed some time to think through what she really wanted.

172 On the same evening, the applicant and KL went out shopping. They then had dinner at a restaurant with KL's friends. After dinner, the applicant and KL returned to the applicant's apartment, where they watched television shows together. KL then went to sleep on the bed, and the applicant went to sleep on the floor.

173 On the following day, 21 May, they both awoke late in the morning. The applicant was lying on the floor. He asked KL to 'go over' to him, but she said she was warm in the bed. The applicant then attempted to get into the bed. They talked together on the bed, and she again said she would like to have some time to think who she liked. The applicant tried to touch her breasts, and to remove her pants. KL told him to stop and used her hand to push his hands away. She said that she needed time to think, and she did not want to have sex with him when her mind was unsure. The applicant wanted to know why she had changed her mind. When he asked to have sex one more time, she responded 'No'. At that point, the applicant removed her pants. She was lying on her back on the bed, and the applicant was on top of her. His legs were pressing down on hers, and he was grasping her forearms near the wrists. He then penetrated her vagina with his penis. She said to him 'No', and said she did not want to have sex. At about that point, the applicant bit her on the lower lip. In her evidence, she said that the penetration took some time, 'five/ten minutes'.

174 After that incident, KL remained in the applicant's apartment for the remainder of the day, using the internet to find alternative accommodation. Later that night, two police members came to the door. As a consequence, she was taken to a hospital for a medical practitioner to examine her.

175 KL then gave evidence as to the various text and WhatsApp messages that passed between herself and the applicant, and they were tendered in evidence. On 6 May 2015, KL had asked the applicant, by text, whether he had a two bedroom apartment. The applicant responded 'Yeah and a bathroom'.

176 In cross-examination, KL agreed that the 'OK Cupid' dating app was an application that allowed a person to meet a prospective partner. She agreed that the messages that she had exchanged with the applicant, before she came to Melbourne, were messages that she expected would be exchanged with a person who she was getting to know as a prospective partner. She agreed that she would not sleep with the applicant, until she decided that he might be a partner. KL also agreed that on the way to the applicant's apartment, he told her that he was not in a two bedroom apartment 'any more'. Nevertheless, she continued walking to his apartment with him. KL said that she had enough money to stay in a hotel, but she did not want to leave the apartment. She saw the applicant as someone who was a 'possible candidate' for being something more than a friend. She agreed that not long after they had arrived at the apartment, the applicant and she had sex together. She also agreed that although she claimed that she was raped on the next morning, she did not leave the apartment on that day. Instead, after the incident, she stayed and had breakfast with the applicant. The applicant then left for work, and she did not leave the apartment during the day. Nor did she call the police during that time. She knew that the applicant was going to return home at the end of the day. During the day she exchanged a number of messages with the applicant which were of a friendly nature.

177 KL agreed that when she first went to the applicant's apartment on 20 May, not long after arriving there, they started to kiss and they engaged in consensual sex on the bed. She said that she was 'most probably' returning the applicant's kisses. She confirmed that after they had sex, they had a shower together. While they did so, they were hugging and kissing each other. She confirmed that they then went shopping together, and had dinner with friends.

178 Counsel then asked KL about the circumstances of the alleged rape on 21 May. She agreed that, in the statement that she made to the police, she did not mention that she had pushed the applicant's hands or arms away when he started to touch her breasts. She also agreed that she did not tell the police that, during the incident, the applicant grabbed her by the wrists or held her wrists down with his forearms. She agreed that the first time that she mentioned that fact was in her evidence-in-chief.

179 KL also stated that when the police attended at the apartment that evening, the applicant was lying in bed, and she was working on the laptop. After the police arrived, she became aware that they had attended to speak to the applicant. She disagreed that it was only when the police arrived that she started to have concerns about whether she wanted to continue to have a relationship with the applicant. KL was then asked questions about the texts that passed between herself and the applicant on 21 May. She said that she found him to be a 'normal friend'. She was reluctant to stay in his apartment and she was trying to find a place to move to. She said it would have been difficult to move to a hotel.

180 Dr Natasha Mitik-Dineva, a legally qualified medical practitioner, gave evidence of the examination that she made of KL at the Monash Hospital at 1.25 am on 22 May. She took a history in which KL said that the offender had become aggressive and had sexually assaulted her by penile/vaginal penetration. On examination, Dr Mitik-Dineva found a purple bruise to the left side of KL's bottom lip. She also found two small parallel scratch abrasions to the right shoulder under the collarbone, a superficial abrasion to the right lower limb, and small bruises to the upper thigh, to the knee area and just above the ankle. On the left leg, she found a cluster of small bruises around the knee and on the inner aspect of the shin. In cross-examination, she agreed that the abrasions and bruising, that she observed, would be equally consistent with consensual or non-consensual intercourse, and could also have resulted from ordinary day to day activities.

181 The informant, Detective Senior Constable Georgeana Jones, gave evidence that, at 9.50 pm on 21 May 2015, she attended the applicant's apartment in company with Detective Sergeant Quirk. On arrival, Sergeant Quirk immediately led KL out of the apartment into the hallway and spoke to her. KL asked the police members if she needed to be checked out by a doctor for a disease, because the applicant had had sex with her without using a condom. When asked by the police 'Tell me about the sex?', she responded 'Well last night it was okay, bit rough', and then she said 'This morning, though, very forceful, and I say "I don't want to" but he just do'. She said that she was 'just sore' and wanted to see a doctor. Detective Jones also produced the recording of the interview that was conducted with the applicant on the following day. The applicant's lease of his apartment was tendered through Detective Jones.

182 As mentioned, before Detective Jones gave evidence, the prosecutor told the judge that he sought to tender the lease through the informant, but that counsel for the applicant objected. In doing so, the prosecutor drew the judge's attention to the question asked of KL in cross-examination, that when they were walking to his apartment, the applicant told her that he was not in a two bedroom apartment 'any more'.

183 Counsel for the applicant objected to the admissibility of the lease on the ground that it was not relevant to an issue in the case. He pointed out that notwithstanding that she was told that the apartment did not have two bedrooms, KL was happy to stay with the applicant in it, and that they engaged in consensual sexual intercourse there together. He submitted that by seeking to tender the lease, the prosecution was intending to lead evidence of 'bad character'.

184 In the discussion that ensued, the judge rejected that proposition, and, on a number of occasions, he remarked that the lease was relevant to the applicant's credibility. His Honour considered that the lease would enable the jury to assess the credibility of the denials, made by the applicant in his interview, that he had had non-consensual intercourse with KL. In the course of that discussion, the prosecutor submitted that the lease was admissible because it demonstrated the applicant's determination to get KL to go to his apartment. He submitted that the applicant was 'prepared to say anything to get her to come to the apartment'. The prosecutor further submitted that the lease was relevant to the applicant's credibility.

185 At the conclusion of discussion, the judge stated that the evidence was admissible. His Honour said:

Well, I'm ruling that I'm going to allow it. It doesn't really matter whether its credibility evidence. I accept the prosecution submission that its credibility evidence. It goes, in the sense, to the credibility of your client.

186 Counsel for the applicant then interjected asking 'But are you ruling that it's not character evidence?'. The judge responded 'I don't need to rule whether its character or not character evidence. It's only being led by the prosecution as to credibility'.

Third proceeding - submissions in support of application for leave to appeal conviction

187 Junior counsel for the applicant submitted that the evidence of the lease was inadmissible, first, because the evidence was not relevant to a fact in issue, and, secondly, the admissibility of that evidence in respect of the credibility of the applicant was precluded by s 108A and s 108B of the Evidence Act.

188 Counsel contended that the evidence of the lease was not logically relevant to any issue in the trial. First, she contended, it was illogical for the prosecution to argue to the jury that, because the applicant had been living in the bedsit for almost three months and had misrepresented to KL that he had recently moved there, the jury should use that false representation to reject his denial that he had non-consensual sexual intercourse with KL when he was interviewed by the police. Further, it was illogical for the prosecution to rely on that false representation as evidence of the applicant's desire or readiness to have non-consensual sex with KL.

189 Further, counsel noted that the judge admitted the evidence as being relevant to the credibility of the denials made by the applicant, in the police interview, that he had had non-consensual intercourse with KL. Section 108A provides that credibility evidence may only be admitted, about a person who has made a representation that has been admitted in the proceeding, if the credibility evidence could 'substantially affect the assessment of [that] person's credibility'. In the present case, it could not be maintained that the proof of the false representation made by the applicant to KL - concerning how long he had been in the one bedroom apartment - could substantially affect the assessment of the denials made by him to the police that he had had non-consensual sexual intercourse with KL. Further, counsel referred to s 108B as a further barrier to the admissibility of the evidence. Section 108B(2) provides that if the person who made the previous representation, and whose credibility is sought to be impugned, is the accused, the credibility evidence is not admissible unless the court gives leave. Section 108B(4) prescribes the circumstances in which a judge may give leave to admit credibility evidence about an accused person. The circumstances, prescribed by that subsection, do not apply to the present case.

190 Accordingly, counsel submitted that the judge erred in admitting evidence of the lease as credibility evidence. She contended that the admission of that evidence has resulted in a substantial miscarriage of justice. Apart from limited medical evidence, which provided equivocal support for the complainant's account, the case was essentially a 'word on word case'. In those circumstances, the unlawful attack on the applicant's credibility, and thus on the truthfulness of the account that he gave to the police, has resulted in a substantial miscarriage of justice.

191 In response, counsel for the respondent submitted that the evidence as to exchanges between the applicant and KL, before they arrived at the applicant's apartment, was relevant as part of the narrative of events, so as to enable the jury to make a realistic assessment of KL's account. As part of that evidence, it was submitted, it was relevant for the jury to receive the evidence of the lease, in order to demonstrate the 'determined conduct' of the applicant in having KL stay at his apartment and engage in sexual activity with him. Thus, it was submitted, while the evidence was not admissible as credibility evidence, nevertheless it was admissible as being relevant to demonstrate the designs that the applicant had on KL and what he was prepared to do in order to satisfy those demands.

192 Counsel for the respondent further contended that, in any event, if the evidence was not admissible, its reception into evidence occasioned no substantial miscarriage of justice. At trial, the prosecutor and defence counsel, in their closing addresses, made only brief reference to it. The judge, in his charge, dealt with the evidence in concise terms. Counsel submitted that, in the context of the case, the evidence was a very minor piece of evidence which could not have impermissibly affected the decision made by the jury to convict the applicant.

193 In our view, it is clear that the judge erred in admitting the evidence of the lease on the basis that it was credibility evidence. Indeed, on this application, counsel for the respondent did not seek to defend the decision of the judge on that basis.

194 Section 102 of the Evidence Act provides that, by way of general rule, the credibility evidence about a witness is not admissible. Section 108A(1) provides an exception to that general rule. In summary, subsection (1) provides that if evidence of a previous representation has been admitted in a proceeding, and the person who made that representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about that person is not admissible 'unless the evidence could substantially affect the assessment of the person's credibility'.

195 As we understand it, the judge considered that the evidence of the lease was relevant to the credibility of the denials made by the applicant, in his interview with the police, that he had had non-consensual intercourse with KL, and, in particular, it was relevant to his assertion that if KL had said she did not wish to have sex, he would have stopped doing so. However, on analysis, and taking the view that would be most favourable to the prosecution, it could not be sensibly maintained that the evidence of the lease would have the capacity to 'substantially' affect the assessment of those denials made by the applicant in his interview. Put simply, the fact that the applicant may have lied to KL about whether he ever had a lease over a two bedroom apartment, could not substantially affect the rational assessment by a jury of the credibility of the denial by the applicant that he had had non-consensual sex with KL. We should observe that it was not contended, on behalf of the respondent, that the evidence of the lease was capable of having such an effect.

196 There was a further barrier, however, to the admissibility of the evidence of the lease as credibility evidence. Section 108B(2) provides that, if the person referred to in s 108A is an accused person in a criminal proceeding, the credibility evidence is not admissible unless the court gives leave. Section 108B(3) provides an exception to that rule, which is plainly not applicable to this case. Section 108B(4) provides:

The prosecution must not be given leave under subsection (2) unless evidence adduced by the accused has been admitted that -

(a) tends to prove that a witness called by the prosecution has a tendency to be untruthful; and

(b) is relevant solely or mainly to the witness's credibility.

197 At no stage during the trial was evidence adduced by the accused which fulfilled the two criteria specified in s 108B(4). Accordingly, even if the evidence of the lease could substantially affect the assessment of the applicant's credibility, s 108B precluded its admissibility, as credibility evidence.

198 As we have mentioned, counsel for the respondent, quite correctly, did not seek to defend the decision of the judge, to admit the evidence of the lease as credibility evidence. Rather, it was submitted that the lease was relevant as background or 'narrative' evidence, because it demonstrated that the applicant was prepared even to tell untruths to KL in order to induce her to stay in his apartment so that he could have sex with her, regardless of whether she was consenting or not.

199 In our view, that argument is unsustainable. The circumstance, that the applicant may have told an untruth to KL - namely, that he did not have a two bedroom apartment 'any more' - while they were walking to his apartment, or that he had previously told an untruth to her that he did have such a two bedroom apartment, might logically support an inference that he wished to induce KL to stay at his apartment in order that they could have sexual relations. However, logically such an untruth could not support or enhance the proposition that he intended to have sex with KL regardless of whether she consented. Indeed, at no time in the prosecution case, was it put that, from the outset, the applicant intended to have non-consensual sex with KL at the apartment. That proposition was not, as we understand it, part of the prosecution case. Nor, indeed, did the prosecution go to the extent of making a submission to that effect in final address.

200 It follows that the evidence of the lease was irrelevant, and accordingly it was wrongly admitted in the trial in the third proceeding.

201 The question, then, is whether the wrongful admission of the lease into evidence resulted in a substantial miscarriage of justice. On behalf of the respondent, it was contended that the evidence played, at best, a peripheral role in the trial, and that only fleeting reference was made to it in the final addresses of counsel.

202 In analysing the issue, whether there has been a substantial miscarriage of justice, it is important to note that, based on the evidence in the trial, the conviction of the applicant was far from inevitable. On her own evidence, KL engaged in consensual sex with the applicant on the same afternoon in which they met together. They then went out to dinner together and returned to the applicant's apartment. During the night, KL slept in the bed and the applicant slept on the floor. On the next morning, the applicant again had sexual intercourse with KL. The critical question is whether the prosecution could prove, in those circumstances, beyond reasonable doubt, that that intercourse was non-consensual. All of the conduct engaged in by KL, in the day that followed, was inconsistent with that of a person who has been the subject of a rape. She had breakfast with the applicant. She remained in the applicant's apartment, after he had left for work. During the day, she exchanged friendly text messages with the applicant. In cross-examination, she said that she did have the financial capacity to seek alternative accommodation, but she nevertheless remained in the apartment throughout the day, knowing that the applicant would return to it in the evening. In those circumstances, the success of the prosecution in the trial was far from guaranteed.

203 It was in that context that the lease was wrongly admitted into evidence. The prosecutor referred to it twice in the course of his relatively brief final address. As we have explained, as a matter of law, it was not permissible for the lease to have been admitted on the basis that it was relevant to the credibility of the denial made by the applicant that he had had intercourse with KL without her consent. There was, in our view, a realistic risk that the jury might impermissibly reason - as in fact the judge did - that the lease, in some way, affected the credibility of the applicant's denials that the sexual intercourse that he engaged in with KL was non-consensual. It is the long experience of those involved in the criminal justice system that documentary evidence, tendered to a jury, is capable of being given undue weight, and being misused by a jury. In those circumstances, we are persuaded that the admission of the lease into evidence did result in a substantial miscarriage of justice.

204 It follows that the application for leave to appeal should be granted, the appeal allowed, and the conviction of the applicant in the third proceeding be quashed. In those circumstances, we do not need to consider the application for leave to appeal against sentence.

205 For the foregoing reasons, we have concluded that, in each of the three proceedings in which the applicant was convicted, the application for leave to appeal should be granted, the appeal allowed, and the convictions of the applicant, in those proceedings, quashed.

206 Before departing from these applications, we should also add one observation. In the first and second proceedings, the evidence given by Dr Sullivan encompassed a significant number of facets of the conduct of persons who complain of, or have been subject to, unwanted sexual activity. As we have earlier stated, it is important, in any case, that, pursuant to s 79(1) of the Evidence Act, an expert witness be only permitted to proffer an opinion that is wholly or substantially based on that expert's training, study or experience. In the applications concerning the first and second proceedings, the issue, concerning the admissibility of Dr Sullivan's evidence, was confined to the relevance of that evidence. The question of the qualifications of Dr Sullivan to give each aspect of that evidence was not agitated on these applications. Accordingly, we express no views on that question.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the complainants and other witnesses.

[2] Jacobs (a pseudonym) v The Queen [2017] VSCA 309.

[3] To ensure that there is no possibility of identification, this judgment has been anonymised by the use of initials in place of the names of the complainants and other witnesses.

[4] DPP v Jacobs (a pseudonym) [2018] VCC 721 ('Reasons').

[5] DPP v AS (a pseudonym) (Ruling No 4) [2017] VCC 1675 ('First Ruling').

[8] [2013] VSCA 20; (2013) 40 VR 564 ('MA').

[10] Evidence Act 2008 ss 55, 79; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 743-4 [85] (Heydon JA).

[11] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 602 [31] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Honeysett v The Queen (2014) 253 CLR 122, 132 [25].

[12] MA [2013] VSCA 20; (2013) 40 VR 564, 566-8 [8]-[18].

[13] New Zealand Law Reform Commission, Evidence: Evidence Code and Commentary (Report No 55, 1999) vol 2, 67 [C110]-[C111].

[14] MA [2013] VSCA 20; (2013) 40 VR 564, 568 [22].

[18] [2011] NZCA 191 ('M').

[20] Ibid [32] (emphasis in original). See also DH v The Queen [2015] NZSC 35; [2015] 1 NZLR 625, 636-7 [30].

[21] See, eg, Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 479-82 [25]-[33]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, 102-4 [21]-[29]; Lane v The Queen [2018] HCA 28; (2018) 357 ALR 1, 8-10 [38]-[43]; Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62, 101-7 [112]-[127]. See also Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 677-8 [85].

[22] Dailakis v The Queen [2018] VSCA 101, [38] (citations omitted).

[23] [2012] VSCA 328; (2012) 40 VR 182, 214 [125].

[24] [2013] VSCA 20; (2013) 40 VR 564, 585 [97].

[25] [1989] HCA 28; (1989) 167 CLR 94, 131.

[26] [1959] HCA 8; (1959) 101 CLR 298.