Keogh v The Queen [2018] VSCA 145

CRIMINAL LAW - Appeal - Conviction - Rape (3 charges) - Complicity - Consent - Whether complainant consented - Whether applicant reasonably believed complainant consented - Complainant's evidence of saying 'No' - Whether any alleged deficiencies in complainant's evidence, coupled with statements made by complainant, coupled with complainant's intoxication and applicant's good character required jury to acquit - Whether jury must have entertained reasonable doubt - Application for leave to appeal granted - Appeal dismissed.

1 On the evening of Saturday 13 February 2016, the applicant and the complainant were engaging in consensual sexual intercourse in a camping area at the Colac Bachelor and Spinster's Ball. While so engaged, a friend of the applicant, Patrick McGrath, was observed walking in the area. The applicant suggested that McGrath 'join in'. The complainant's response to this suggestion was a matter of dispute at the subsequent trial of the applicant and McGrath for the rape of the complainant. What is not in dispute is that, subsequent to the suggestion that McGrath join in, the complainant was sexually penetrated twice by McGrath (charges 1 and 3) and twice by the applicant (the first of these was not charged, and the second was the subject of charge 2).

2 The applicant and McGrath were tried in the County Court for the rape of the complainant. Each was tried as a principal in respect of his own penetration of the complainant, and as being complicit in relation to the penetration of the complainant by the other. Each was found guilty of three charges of rape. The applicant now seeks leave to appeal against his conviction on the following grounds:

1. The trial judge erred in his directions to the jury on the law of complicity in relation to charges 1 and 3 by failing to direct the jury that the self-induced intoxication of the applicant was relevant to the mental element of intention.
2. The verdicts on charges 1, 2 and 3 are unreasonable or cannot be supported having regard to the evidence in view of the cumulative effect of the following matters:

(a) deficiencies in the complainant's account;

(b) inconsistencies in the complainant's account;

(c) the complainant's intoxication; and

(d) the applicant's good character.

3 The Colac Bachelor and Spinster's Ball was held at the Recreation Reserve at Irrewillipe on Saturday 13 February 2016. It was attended by the complainant, the applicant and McGrath. The complainant and her friends arrived at the Recreation Reserve around lunchtime, and set up an area between their cars where they socialised for the afternoon. The complainant saw the applicant during the afternoon, and recognised him from a previous B & S Ball. The complainant did not know McGrath.

4 At the time of the ball, the applicant was aged 20, the complainant was 20 and McGrath was 18.

5 The ball began at around 8:30 pm and was in a marquee on the reserve. While the complainant was getting food with a friend, the applicant grabbed her from behind and they began kissing. The applicant asked the complainant if she wanted to go back to his camp with him, and she agreed. The complainant was aware that this was an invitation for sex and she was 'happy with that'.

6 The applicant and the complainant engaged in consensual sex in the applicant's camping area. As they were engaging in intercourse, the complainant noticed another person walking among the parked cars. It was McGrath. According to the evidence, the applicant either called McGrath over and asked him if he wanted to join in and/or asked the complainant 'if she wanted Paddy to join in'. At trial, the complainant's evidence was that she said 'no'. In their records of interview, tendered at trial, the applicant and McGrath each said that the complainant agreed to McGrath joining in. Subsequently, there were four penetrations of the complainant, two by McGrath and two by the applicant:

• a penile/oral penetration by the applicant (uncharged);
• a digital/vaginal penetration by McGrath (charge 1);
• a penile/oral penetration by the applicant (charge 2); and
• a penile/vaginal penetration by McGrath (charge 3).

7 The trial at which the applicant was convicted was the fourth trial. The jury in the first trial was discharged after it failed to reach a unanimous or majority decision. The juries in the second and third trials were discharged before the conclusion of evidence in each case. It is not necessary to further describe the circumstances in which those juries were discharged.

8 The first trial ran from 26 April 2017 to 8 May 2017; the second trial ran from 9 to 10 May; the third from 11 to 15 May; and the fourth from 16 to 23 May. All four trials were conducted by the same judge and the same counsel.[1] Issues that were raised and determined in the first trial were, generally speaking, not reargued in the subsequent trials. For example, there were discussions between counsel and the judge at the conclusion of the evidence in the first trial about whether directions about intoxication should be given to the jury in accordance with R v O'Connor.[2] Trial counsel for McGrath said that such a direction was not necessary, and trial counsel for the applicant did not demur - telling the judge that he had 'had the advantage of the homework done by my two learned friends'. The issue then appears to have been treated as resolved.

9 In the fourth trial, most of the oral evidence was called by playing to the jury the evidence previously given by the witnesses, and recorded during, or for the purposes of, the first trial. The critical evidence consisted of the evidence of the complainant, and evidence given by witnesses who observed the complainant and heard various things said by her following her encounter with the applicant and McGrath.

10 Neither the applicant nor McGrath gave evidence at trial. Their versions of the events in dispute were contained in records of interview that were tendered by the Crown.

11 It is not necessary to refer to the evidence of all of the witnesses played or called at trial. We will refer to the evidence of those witnesses that bear upon the applicant's proposed grounds of appeal.

12 The complainant gave evidence in the first trial. Her evidence was recorded. In the fourth trial, the complainant's evidence was played to the jury.

13 After giving evidence of background matters, the complainant described meeting the applicant at the ball. The applicant put his hands around her waist and then they kissed. She said that she and the applicant both agreed to go to his ute and have sex. She said she showed her consent by agreeing to go back to his ute with him. When they got back to the ute, they were kissing, up against the ute. She said the applicant then got his swag out and they 'made out on the side of the ute for a while and then [they] had sex'. The complainant described having penile/vaginal sex while she was on her back, then oral sex and then sex where the complainant was on top of the applicant.

14 The complainant said that she was on top, and then she decided that she did not like that and so they 'then changed back to missionary again'. The complainant said that the reason she did not like being on top was that there were other cars around and she did not like being seen.

15 The complainant then described having sex with the applicant while she was on her back. While this was happening, she said that the applicant looked up and said to another person 'Hey, do you want to join in?' The complainant said that she turned around and noticed a person behind her. Asked whether she responded in any way to what the applicant said, the complainant said: 'Yeah, yeah, I said no.'

16 The complainant described herself as being 'in a crunch position' - 'the top half of me was crunched facing up to [the applicant]'. She then laid back down. The applicant, who had then been between the complainant's legs, moved up and sat on the complainant's chest or stomach area. The complainant described herself as feeling 'intimidated' at that stage 'because [she] had a whole person sitting on top of [her]'.

17 The complainant said that the other male (McGrath) came around behind the applicant and put his fingers in her vagina. At that stage, the applicant was on her chest. These were the events that constituted charge 1.

18 The complainant said that while McGrath had his fingers in her vagina and the applicant was sitting on her chest, the applicant 'wanted head again so I gave it to him'. When asked why she did that, the complainant said:

Well, there was two people and I - well, I was intimidated by it so I just went along with it. Not went along, that's not the right word ... I felt overpowered.

These events constituted the uncharged oral penetration by the applicant, to which we have already referred.

19 Asked about any conversation that occurred at this time, the complainant said that the applicant said to McGrath 'let's put her on the spit'. The complainant said that she understood this to mean that they would both have sex with her at the same time 'one in my mouth and one in my bits'.

20 The complainant then described the applicant getting off her and then facing the other way. McGrath put his penis in her vagina, while the applicant put his penis back in her mouth. In the complainant's words:

Then he puts his penis back in my mouth and like crouches over the top of my face, like lies a bit over the top of my face and then like so he's like right on top of me then and sort of like squishes my head into the ground, like sort of like screws my head, if you know what I mean.

21 The complainant said that she felt really scared, 'because I couldn't breathe'. The complainant said that the applicant was over her face for about 30 seconds. She tried to push him off. Asked if she managed to push him off, the complainant said 'Not at first, so like he didn't get off straight away'.

22 When asked how long the whole of the episode with the applicant and McGrath lasted, the complainant said 'probably lasted like two minutes'. The complainant gave evidence that she did not give her permission or consent to McGrath putting his fingers or his penis in her vagina. She also did not give her permission to the applicant to put his penis in her mouth after McGrath joined in. Asked whether she gave permission for any sexual activity after McGrath came over, the complainant said 'No, so from when I said no I withdraw all permission'.

23 The complainant was cross-examined about her consumption of alcohol on the day. She said that she had three drinks over about eight hours. Asked whether she was 'in any way incapable through alcohol', the complainant replied that 'she wasn't drunk at all'. We interpolate here that expert evidence was given at trial that the results of a blood test taken at 3.45 am on 14 February 2016 suggested that the complainant's blood alcohol level at 9.15 pm the previous night was in the range 0.13 to 0.165, and that a 'reasonable degree of impaired concentration and decision making abilities can be expected' in this range.

24 The complainant was cross-examined as to whether there was any more 'conversation' after she said no. She said there was 'no more conversation at that point', 'later there was more conversation'. Asked about whether, in saying no, the complainant was withdrawing consent from the applicant, the complainant agreed that she did not say 'I am withdrawing my consent'. The complainant said 'no, but I said no'. The complainant was asked and answered the following questions in cross-examination:

When you said no, you're telling us, that you are saying I am withdrawing any more - I am withdrawing consent for any more sex between you and myself, that is directed at [the applicant], I am taking away the consent I've given you?---Yes, and for anyone else to join in.

...

All you say is no. You don't tell [the applicant] to stop do you?---No [it] is implied, stop.

Others may decide what's implied. So if you just answer my question. You do not tell [the applicant] to stop do you?---No, I do not tell him to stop.

25 The complainant was cross-examined about her evidence that the applicant moved up and sat on her stomach and put his penis in her mouth. The complainant agreed in cross-examination that she did not tell the applicant to get off her or that she had already told him no. She agreed she said nothing.

26 The complainant was cross-examined about whether she walked back to the ball holding hands with the applicant. She said she could not remember doing that. She was asked and answered the following question:

So you may have been but you just say, you give evidence now you can't recall holding hands as you walked back to the ball?---Yes.

27 The complainant was cross-examined about statements she was said to have made after her encounter with the applicant and McGrath. It was put to her that she had told a witness that she 'wanted it to happen'. The complainant denied that proposition.

28 It was also put to the complainant that she said 'It wasn't their fault'. The complainant said that she did not recall saying that. She was then asked and answered the following question:

So you're not saying that you didn't say that, is this right, but you're saying now that you can't recall saying those words to [CE]?---I would not have said it's not their fault, but no, I cannot recall that.

29 The complainant was cross-examined about a statement she made in which she said her response to the suggestion that McGrath join in was 'No, he can't join in'. While the words 'he can't join in' were in the complainant's statement, the complainant denied that that was what she said at the time of the encounter. She said that she just said 'no'.

30 It was also put to the complainant in cross-examination that on more than one occasion on the evening after her encounter with the applicant and McGrath, she said that it was McGrath who put his penis in her mouth. The complainant denied ever saying this. Additionally, it was put to the complainant that she told Rowena Singleton (a medic who attended her on the night) that what happened on the night happened in a canopy in the back of a ute. The complainant denied saying this.

31 Finally, it was suggested to the complainant that what actually happened on the night was that the applicant asked 'whether it was ok with you for [McGrath] to join in', and she said 'yes'. The complainant's response to that suggestion was, 'No, that never happened'.

32 A number of the complainant's friends gave evidence (as with the complainant's evidence, the evidence of these witnesses was given and recorded in the first trial, with the recordings then being played in the fourth trial). For present purposes, it is only necessary to mention two pieces of evidence. One of the witnesses, CE, gave evidence that at a point during the evening the complainant was not as happy as she had been earlier. She looked 'a bit upset'. Later, she was crying. 'Out of the blue', the complainant said 'It wasn't their fault'.

33 Another witness, RE, gave evidence of her encounter with the complainant back at the camp. The complainant was screaming, crying and unable to breathe properly. RE said that the complainant said:

I didn't want to. We were having sex. Someone, another bloke came in and pushed his penis in my mouth.

34 Rowena Singleton's evidence was also recorded during the first trial and played to the jury in the fourth trial. Her evidence was that she worked as a medic at the ball. At about 10:00 pm or 10:30 pm she noticed the complainant was hysterical and inconsolable. The complainant kept saying things, 'Oh I wanted it but I didn't', and 'no, it's ok. Please just - I want all my friends to go off and enjoy themselves. Don't worry about me'. Ms Singleton said:

One minute she was stating that yes, something happened and they shouldn't have done things to her and then one minute she was saying, no, it's ok, I wanted it to happen.

35 Ms Singleton was asked whether the complainant gave details about what happened. Ms Singleton said:

She proceeded to say that she was having sexual intercourse. She was having vaginal intercourse with one fellow and then the fellow yelled out to a friend who was apparently nearby and said, 'Come on, mate, let's get in on this. You should come over and have a go at this'.

...

The details of the conversation she said to me, she goes, 'it was fine with the guy that I was having vaginal sex with' - actually those weren't her words exactly. Her words exactly were, 'I was having sex with him, with one of them and that was fine, but then the other guy came over. He jumped on my face and put his penis in my mouth and I felt suffocated and I couldn't breathe and I wanted him to get off'.

36 A little later in her evidence, Ms Singleton said:

So one minute she was saying no, I didn't want it but then, yes, no, I didn't want him putting his penis in my mouth and that shouldn't have happened.

37 Ms Singleton was cross-examined about a statement she had made in which she said that the complainant told her that she was 'having sex with Daniel', while lying on her back, and that they were in a canopy in the back of a ute. Ms Singleton said that the name Daniel was inaccurate. She agreed, however, that the complainant told her that it happened in the back of a ute and not on a swag on the ground next to a ute.

38 Police officers gave evidence of their observation of the applicant and McGrath on the evening after their encounter. The applicant was observed to be severely intoxicated, unsteady on his feet and holding a can of liquor. McGrath was observed to be intoxicated, but was said to be less affected than the applicant.

39 Additionally, the applicant and McGrath each put their character in issue. In cross-examination, the informant, Detective Senior Constable Bell, gave evidence that neither of them had any prior criminal history of any sort. We interpolate that, in his charge, the judge told the jury that they had heard evidence that both the applicant and McGrath were persons of good character, neither of them having any convictions. This was a precursor to a direction to the jury, given by the judge in conventional terms, and about which no complaint is made in this Court, of the use the jury could make of good character evidence.

40 The applicant did not give evidence at trial. A DVD of his record of interview was tendered and played to the jury. The record of interview was conducted at 7.00 am on Sunday 14 February 2016.

41 In his record of interview, the applicant said he arrived at the ball at about 2:30, 3:00 pm. He had been drinking Jack Daniels since about lunchtime. He had three beers before he arrived. He probably had 'roughly 10 cans of pre-mixed drinks'.

42 The applicant said that he had consensual oral and vaginal sex with the complainant. They were having 'missionary-style sex'. McGrath came over. He asked the complainant 'Do you want Paddy to join in?'. She said, 'yes'. The applicant then said 'Happy, happy as Larry'. A little later in his record of interview, the applicant said, when asked if she wanted Paddy to join in, the complainant said 'No worries'. At still later points in the interview, the applicant said that the complainant said 'Yes'.

43 The applicant said that after the complainant said yes, he 'yelled at Paddy "Come join in" and ... Paddy joined in for a minute, not even a minute and then we went back to the ball.'.

44 The applicant said that he put his penis in the complainant's mouth, McGrath put his penis in the complainant's vagina. It was not working, and so they all got up and left. He and the complainant held hands as they walked back to the ball. He could not recall if she said anything. He was highly intoxicated. He threw up in the police car on the way to the station.

45 The applicant was asked in his record of interview about the use of the word 'spit'. He gave the following answers to the following questions:

Q: Have you ever used the term 'a pig on a spit'?

A: No, I wouldn't use 'pig on a spit'. That - that'd be weird. No, I wouldn't use 'pig'.

Q: What would you use?

A: I'd say 'put her on the spit'. I wouldn't say 'pig'.

Q: And what does that mean?

A: That means a bloke at each end basically and - - -

Q: Did you use it last night?

A: I think I did use the word 'spit' last night. 'Put her on a spit', yes.

Q: And then she says that you invited Ryan - sorry, Patrick to have sex with her.

A: Yep.

Q: Is that right?

A: I did. I asked for her consent first but - - -

Q: She says that's not the case.

A: Well, she can say that but - yep.

46 McGrath did not give evidence at trial. A DVD of his record of interview was tendered and played to the jury.

47 In his record of interview, McGrath said that he arrived at the ball at about 4:00 pm. He started drinking. He was drinking VB. He was not 100 per cent sure how much he consumed. It may have been six VBs and a couple of rums. The ball itself started at about 8:00 pm. He described the relevant events in the following terms:

[The applicant] was with a girl in a swag. They were having sex. I - everything seemed consensual, I was like happy that he was ... it didn't seem like he was forcing himself on her, she was - seemed 100 per cent fine with everything that was going on. I was invited to join. I did. She - so she was still seemed 100 per cent fine with everything that was going on. She was still grabbing him while I was invited to join and I did. I never got off, I never did any of that. I was going for a bit and then after a while I was like, nuh, I'm out, I'm having a drink, I'm going back to the ball, which I did.

...

[A]s far as I'm concerned everything that happened was 100 per cent consensual, I would never have forced myself on anyone there.

48 A little later in his record of interview, McGrath said that it was the applicant who 'told me to go join in'. He said that he could not remember exactly what the applicant said to him, 'I think pretty much I was invited to join'. McGrath's record of interview contained the following questions and answers:

Q: So how do you establish that she was happy with you having sex with her?

A: She wasn't saying no. She wasn't pushing away. She wasn't ---

Q: Did you ask?

A: Well, I'd never - no, I didn't get a chance to ask her, no.

Q: And why was that?

A: I do not know, I'm sorry I couldn't tell you. I don't know why I didn't get to ask.

Relevant statutory provisions and the issues at trial

49 Section 38 of the Crimes Act 1958 ('the Crimes Act') defines rape as follows:

38 Rape

(1) A person (A) commits an offence if -

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

50 At trial, there was no issue about element (a). The issues at trial concerned elements (b) and (c), whether the complainant consented to the three penetrations charged, and whether the applicant and McGrath did not reasonably believe that the complainant consented. Consent for these purposes means 'free agreement'.[3] Whether a person reasonably believes that another person is consenting to an act 'depends on the circumstances'.[4]

51 The Crown put the case on complicity in relation to both accused by reference to s 323(1)(a) of the Crimes Act. Each was submitted to be complicit in the other's offending (and thus taken to have committed the offence)[5] because each intentionally assisted, encouraged or directed the commission of the other's offence.[6]

52 The third element of the offence of rape (sometimes called the fault element) can be satisfied by the prosecution proving beyond doubt that the accused had one of the following states of mind:

(a) the accused believed that the complainant was not consenting;

(b) the accused did not believe the complainant was consenting (this includes cases where the accused gave no thought as to whether the complainant was or was not consenting); or

(c) even if the accused believed the complainant was consenting, the accused's belief was not reasonable in the circumstances.

53 In his written case, the applicant asserted that, at trial, the prosecution only relied upon the third of the three mental states for proof of the fault element of rape (even if the accused believed the complainant was consenting, his belief was not reasonable in the circumstances). In its written case, the Crown accepted that the trial was conducted on the basis asserted by the applicant. The transcript of the trial, however, does not bear out the applicant's assertion.

54 In the first trial, the prosecutor commenced her final address by saying:

'No.' 'No.' A very short word. I can guarantee that each of you knows the meaning of 'No'. It's the opposite of 'Yes'. Simple, short, understood even by a very small child. ... Capable of no misunderstanding.

Now, when you look at all the things that I've - matters I've raised, ladies and gentlemen, the prosecution says you'll have no difficulty in coming to the conclusion that, No 1, [the complainant] did not consent to the sexual activity in charges 1, 2 and 3; that [the applicant] knew that she wasn't consenting, if you accept she says no, because she said no to him, and no means no. No to him and to have his friend come and join in the sexual activity.

56 No complaint was made by the applicant's trial counsel about the prosecutor's address or that the prosecutor had enlarged the basis upon which the prosecution case was put.

57 In her final address in the fourth trial, the prosecutor did not put the issue as clearly as she had put it in her address in the first trial. Nevertheless, the prosecutor again told the jury that 'no' is a 'very clear word'; no means no; and 'no' was the answer the complainant gave to the applicant.

58 Notwithstanding the way the prosecutor put the Crown case against the applicant at trial, the judge charged the jury on the third (fault) element of rape as follows:

The third element relates to the accused's state of mind, that is [the applicant] and [McGrath], about [the complainant's] consent. The prosecution must prove beyond reasonable doubt that at the time of sexual penetration the accused did not reasonably believe that [the complainant] was consenting. This third element will be met in any of the following circumstances_: the accused gave no thought to whether [the complainant] was consenting; and_ even if either [the applicant] or [McGrath] may have believed that she was consenting, the belief was not reasonable in the circumstances.

59 Thus, the judge (who had charged on this issue in identical terms at the conclusion of the first trial) limited proof of the fault element to the second and third mental states identified above (giving no thought to whether there was consent; and any belief in consent being not reasonable in the circumstances). The judge did not, however, limit the prosecution case in the way asserted in the applicant's written case, and conceded in the respondent's written case.

60 Curiously, the omission of the first of the three mental states was raised in an exception taken to the judge's charge by counsel for McGrath - rather than by the prosecutor. Moreover, the exception was taken only in the fourth trial, notwithstanding that the judge's charge was relevantly identical to that which he gave in the first trial. Upon counsel for McGrath pointing out what he said was an omission, the prosecution then sought a redirection so that the jury could be told that the fault element could also be established by proof that the accused (specifically the applicant) believed that the complainant was not consenting. The judge, however, declined to redirect the jury on the issue.

61 The issue of complicity, and the form of the judge's proposed direction to the jury on complicity, was raised in argument before the judge charged the jury in the first trial. All counsel at trial recognised that the relevant principles, in respect of complicity, were to be found in ss 323 and 324 of the Crimes Act.[7]

62 The prosecutor submitted that the 'statutory complicity' charge found in part 5.2.2 of the Victorian Criminal Charge Book was an appropriate form of charge in the present case. No party demurred from that proposition. Ultimately, the judge charged in accordance with part 5.2.2 of the charge book. Specifically, the judge charged that, in order for complicity to be established, three elements had to be proved:

(a) the commission of the offence of rape;

(b) the accused assisted, encouraged or directed the principal offender to commit the offence; and

(c) the assistance, encouragement or direction was provided intentionally.

63 The judge then gave more detailed directions about the first and second elements of complicity, before turning to the third element. In respect of the third element, the judge said:

Now, the third element the prosecution must prove beyond reasonable doubt is that [the applicant] intentionally assisted, encouraged or directed the commission of rape. And to prove this the prosecution must show at the time he provided the assistance, encouragement or direction that [the applicant] knew all the essential circumstances needed to establish the offence of rape, or believed those essential circumstances existed. This is because a person cannot intentionally assist, encourage or direct an offence unless he knows the essential circumstances of that offence.

The essential circumstances that are needed to establish rape are the three matters that I have just explained to you in relation to the first element. So for this first step to be met, [the applicant] must have known or believed that [McGrath] intentionally sexually penetrated another person, [the complainant]; [the complainant] does not consent to the penetration; and [McGrath] does not reasonably believe that [the complainant] is consenting to the penetration.

64 As we have already observed, there was a discussion between counsel and the judge, at the conclusion of the evidence in the first trial, about directions that might be given in relation to levels of intoxication. Counsel for McGrath submitted to the judge that 'this is not an intoxication case that requires a specific direction a la O'Connor'. With reference to a particular section in the charge book,[8] counsel for McGrath said:

That goes to the question of the person being so drunk that they can't remember, that it affects their intention and so forth. I don't ask for that in relation to my client. He gives a version of events and he speaks for himself. He both speaks at 12.30 and then at 6.00 in the morning and doesn't - he has difficulty remembering some aspects and that may well be part of what I put to the jury as to accepting that his memory might be limited to a degree because of alcohol consumption, but it's not alcohol consumption that leads to a lack of intent or failure to form an intent.

65 There is then further discussion, without any specific direction being sought by counsel for McGrath. Counsel for McGrath then completed his submissions on the topic of alcohol, before the judge asked counsel for the applicant what he wished to say on the issue. It was at this point that counsel for the applicant said that he had nothing to say; he had the benefit of the work done by counsel for McGrath and the prosecutor; and there was essential agreement at the bar table.

66 Section 37H(1)(a) of the Crimes Act, as in force at the relevant time,[9] provided that in determining whether a person who is intoxicated has a reasonable belief at any time, 'if the intoxication is self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as that person at the relevant time'. Thus, it was agreed at trial (correctly in our view) that on charge 2, the question of whether the applicant reasonably believed that the complainant was consenting to his penetration of her fell to be determined by the standard of a reasonable person who was not intoxicated.[10] In conformity with s 47(3)(b)(i) of the Jury Directions Act 2015, the judge directed accordingly. The judge said:

If you find the men were intoxicated at the relevant time you must not take that into account when assessing whether he reasonably believed that [the complainant] was consenting. The law requires you to consider whether his belief in [the complainant's] consent would have been reasonable to a person who was not intoxicated at the relevant time.

67 While s 37H of the Crimes Act applied when considering the fault (or third) element of rape, there is no equivalent provision so far as s 323(1) and the issue of complicity is concerned. It is the absence of an equivalent provision in relation to complicity that is the basis for the applicant's proposed ground 1. At trial, there was, however, no discussion between counsel and the judge concerning the absence of an equivalent of s 37H in relation to the complicity provisions of the Crimes Act.

68 As we have already observed, the issues at trial in the case against the applicant concerned the complainant's consent and the applicant's belief as to any consent. The matters actually in dispute at trial were further refined by the applicant's counsel in his final address as follows:

(1) At the commencement of his final address, counsel for the applicant said that he hoped it was 'very, very clear' that underpinning the case against his client was a factual dispute. '[The complainant] says she said no, [the applicant] says she says yes. It's clear, its start [?stark] and at the end of the day your verdicts in relation to [the applicant] will depend upon the resolution, if any, that you can bring to your consideration of that factual dispute'.

(2) There are then many references in the final address to it being 'very clear', and to it being very clear that the applicant said in his record of interview that the complainant was consenting. Counsel said 'he is clear, she gave her consent'. Later, counsel said:

They [the accounts of the complainant and the applicant] are the two crucial accounts, and as I have made very clear to you, in this case there is a simple factual dispute. [The complainant]: 'I said no'. [The applicant]: 'She said yes. She was consenting'.

(3) Submissions were made by counsel that the complainant was 'not reliable', as compared to the applicant who, it was submitted, answered questions in his record of interview 'very straightforwardly, very directly'.

So ladies and gentlemen in conclusion remember and I know you will. This is a simply factual dispute. [The complainant] says, 'I said no', [the applicant] says, 'she said yes'. And in light of all of the above my submission to you, ladies and gentlemen, is that there are such issues and such questions around the reliability of [the complainant] that you could not act upon her evidence and if you could not act upon her evidence then your verdicts in relation to [the applicant] must be one of not guilty.

69 In relation to proposed ground 1, the applicant accepted that the judge correctly directed the jury in relation to the relevance of intoxication to the fault element of the offence of rape. Specifically, the applicant accepted the correctness of the judge's direction given pursuant to s 47(3)(b)(i) of the Jury Directions Act 2015. The applicant submitted, however, that 'self-induced intoxication assumed significant relevance with respect to the question of complicity' (charge 1 and charge 3). The applicant contended that the judge was required to direct the jury that the applicant intended to assist, encourage or direct the commission of the offence of rape; and that the issue of intention required consideration, among other things, of the self-induced intoxication of the applicant.

70 In support of this submission, the applicant contended that, on the issue of complicity, it was for the prosecution to prove that the applicant acted with the requisite intention, despite his level of intoxication. Reliance was placed upon O'Connor and a decision of the New South Wales Court of Criminal Appeal, R v Coleman.[11] With respect to Coleman, the applicant relied upon the following passages in the judgment of Hunt J (with whom Finlay and Allen JJ agreed):

The trial judge should direct the jury that the Crown must establish that the accused had in fact formed the state of mind which is relevant to the offence charged. In relation to that issue (if intoxication has been sufficiently raised in the evidence), the judge should tell the jury that the onus lies on the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused's intoxication. To do that, the Crown must persuade them beyond reasonable doubt that the accused's state of intoxication was not such as to deny the existence of the relevant state of mind which may otherwise be apparent from all of the other evidence in the case.[12]

...

In [a particular case] it would be quite appropriate for the judge to point out that the factual issue litigated was whether the accused was so intoxicated as to have caused him to make a vital mistake about the events in which he was engaged - generally, his mistaken perception or understanding either as to the nature of his own actions or as to the nature of the victim's reaction to those actions.[13]

71 The applicant submitted that, with respect to charges 1 and 3, the prosecution was required to prove that the applicant intended to assist, encourage or direct McGrath, and that the level of the applicant's intoxication was relevant to the proof of that intention. The applicant conceded that trial counsel failed to request the direction that it is now submitted should have been given. The applicant submitted that this was of no moment because the judge was obliged by s 16 of the Jury Directions Act 2015 to give the direction even though it had not been requested.

72 The respondent's submissions on proposed ground 1 were encapsulated in the following submissions in its written case:

In this case it is submitted that the applicant intended to assist, encourage or direct the essential facts of the principal offence of which he has knowledge. That is, he clearly intended to commit sexual acts with the complainant while the co-accused was also performing sexual acts with the complainant. That is clear from his statement to the co-accused 'Hey do you want to join in?'. It does not appear that this statement by the applicant was in dispute, it was accepted he made this statement.

The question of the applicant's intoxication and his complicity was not a live issue, if the above analysis is correct, as the applicant undoubtedly intended that both he and the co-accused perform sexual acts on the complainant at the same time.

The applicant was therefore complicit, if he had the requisite state of mind for the offence of rape, namely that although he believed the complainant was consenting, his belief was not reasonable in the circumstances.

73 The respondent submitted that it followed from these contentions that there was no substantial miscarriage of justice resulting from the judge's failure to direct the jury that self-induced intoxication of the applicant was relevant to the mental element of intention so far as the question of complicity was concerned.

74 Proposed ground 1 must be rejected. The directions the judge gave on the issue of complicity were entirely consistent with the way in which the case was conducted. The judge's directions were also in accordance with the wishes of trial counsel, who it must be observed were not inexperienced - and there is no suggestion of any question as to their competence.

75 Counsel for the applicant conducted the case on the basis that the applicant's level of intoxication, while relevant to his recollection of particular events, was not such as to lead to some lack of intent or failure to form a requisite intent. Moreover, as is plain from the applicant's trial counsel's final address, the applicant's case to the jury was that he was clear (and it was clear) that the complainant consented. There was, and there was said to be, no doubt about that. Further, it was specifically not the applicant's case that intoxication may have caused him to make some mistake.[14]

76 Section 15 of the Jury Directions Act 2015 prohibits a judge from giving a direction to the jury that has not been requested under s 12 of that Act. Section 16, however, requires the judge to give a direction if the judge considers that 'there are substantial and compelling reasons for doing so even though the direction has not been requested under s 12'. As has been observed previously,[15] the language of s 16 of the Jury Directions Act 2015 is 'a good deal more stringent than that of its predecessor' (s 15 of the Jury Directions Act 2013).[16] What was said in Xypolitos v The Queen,[17] about the Jury Directions Act 2013 must now be read in the light of the different language contained in the present Act.[18]

77 The arguments of trial counsel are (in the absence of some suggestion of incompetence) generally speaking powerful indicators as to what were, in truth, the relevant issues for the jury's determination.[19] Quite properly, it was no part of the applicant's submissions in this Court that his trial counsel had been incompetent.[20]

78 In our view, a review of the entirety of the transcript of the four trials in this case discloses that trial counsel for the applicant discharged his obligations to his client, both generally and under ss 11 and 12 of the Jury Directions Act 2015, with obvious care. We are unable to conclude that there were substantial and compelling reasons for the judge to give a direction not sought by any counsel at trial.

79 In his record of interview, the applicant was emphatic in his statement that the complainant consented. The applicant's certainty, expressed in his record of interview, was a cornerstone of the applicant's case at trial. Plainly, the applicant's trial counsel would not have wanted the judge to give any direction that might have had the capacity to undermine his core defence.

80 A direction, in respect of complicity, about the applicant's level of intoxication in relation to the complainant's consent, giving rise to a possibility that the applicant's intoxication may have caused him to make a mistake about the complainant's consent,[21] had the capacity to undermine the certainty of the applicant's emphatic statements in his record of interview. It was the applicant's principal case that the complainant consented to all penetrations. A direction about the effects on the applicant of his self-induced intoxication may have assisted him in respect of charges 1 and 3. Perhaps more importantly, however, such a direction had the capacity to be positively unhelpful to the applicant in respect of the second element of charge 2 (the issue of the complainant's actual consent) - undermining, as it arguably might, the applicant's principal case that the complainant said yes to him. Moreover, because of s 37H(1)(a), a direction of the kind now suggested could be of no assistance to the applicant on the third (fault) element of charge 2.

81 The applicant's case at trial was run on the basis that he was not guilty of any of the three charges. While convictions on three charges might have been a worse result for the applicant than a conviction on one charge alone, one could well imagine why the applicant's trial strategy was designed to achieve an acquittal on all charges (as it turned out on sentencing, the orders for cumulation on the complicity charges only added 6 months to the term of imprisonment ultimately imposed on charge 2). As a matter of rational forensic choice,[22] we see nothing wrong with a decision not to seek a direction that may have made conviction less likely on charges 1 and 3, but risked making conviction more likely on charge 2 by undermining the applicant's principal defence (he asked the complainant, and she said yes).

82 Far from there being substantial and compelling reasons for giving a direction about the applicant's level of intoxication so far as it related to the complicity charges, there were good reasons for the judge not to have given a direction that would have cut across the applicant's defence. Proposed ground 1 is not reasonably arguable and must be rejected.

83 Before we leave proposed ground 1, we should mention that there was an argument before us as to whether the judge was correct to direct the jury that, in relation to the complicity charges (charge 1 and charge 3), the Crown needed to establish that the applicant knew or believed that McGrath did not reasonably believe that the complainant was consenting. It is not necessary for us to decide that question. If the judge was in error in this respect, it was to the benefit of the applicant.

84 In relation to proposed ground 2, the applicant submitted that it was unreasonable for the jury to conclude that there was no consent. It was also submitted that even if there was no consent, it was unreasonable for the jury to conclude that the applicant did not reasonably believe that there was consent. In support of these submissions, the applicant relied upon the following matters:

(1) Deficiencies in the complainant's account. The applicant submitted that the complainant's account was not sufficient to justify conviction because her account was 'inconsistent with a lack of consent'. As the applicant put it in his written case:

Significantly, the complainant gave evidence that, at the time McGrath put his fingers in her vagina (charge 1), the applicant was 'sitting on my chest and then he wanted head again so I gave it to him'. At the point in time when the applicant was moving on to her stomach, the complainant had laid back down. Moreover, while the complainant and the applicant were engaged in oral sex, McGrath was performing the digital penetration. This sequence of events is inconsistent with a lack of consent.

The complainant gave evidence that from the time she said 'no' she withdrew consent. However, her purported withdrawal of consent was not apparent to the applicant. That is, as far as the applicant's belief in consent goes, the evidence demonstrates such belief was not unreasonable.

(2) The complainant's statements to the various witnesses that 'it wasn't their fault'; it was McGrath who put his penis in her mouth; 'I wanted it to happen'; it occurred in the back of the ute; and the applicant's statement where it is recorded that she said her response was 'No, he can't join in', as opposed to 'No'. These utterances and statements were all contended to be inconsistencies in the complainant's account.

(3) The complainant's intoxication. It was submitted that the evidence disclosed that the complainant's level of intoxication had the capacity to interfere with her ability to accurately recall events and the sequence of events, and also to interfere with her concentration and decision-making abilities.

85 The applicant relied upon each of the matters identified above as requiring the jury to have entertained a reasonable doubt about the applicant's guilt.

86 The respondent submitted that the verdict of the jury was not unreasonable, and was supported by the evidence. The cumulative effect of the evidence, and the totality of the circumstances, permitted the jury to return a guilty verdict on all charges.

87 As to alleged deficiencies and inconsistencies in the complainant's account, these matters were all fully explored during the trial and the jury had the best opportunity to assess and evaluate the complainant's account. Balanced against any inconsistencies were the complainant's distress immediately after her encounter with the applicant and McGrath, and the timeliness of her complaint about the conduct of the applicant and McGrath.

88 As to the complainant's intoxication, the respondent submitted that the judge provided specific directions on this issue, and about which the applicant makes no complaint. The matter was taken into account by the jury in assessing the complainant's evidence, and the jury was 'legitimately able to return guilty verdicts after taking the complainant's intoxication into account'.

89 In relation to the applicant's good character, the respondent submitted that, while relevant and important, good character 'could not change facts as found by the jury to have occurred based on the complainant's evidence'.

90 Proposed ground 2 engages s 276(1)(a) of the Criminal Procedure Act 2009. That section requires the Court to allow an appeal against conviction if the Court is satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. As has been said many times before,[23] the relevant question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt: that is, whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt.

91 The central issue for the jury to resolve was whether the complainant said yes or no to the suggestion that McGrath 'join in'. The complainant's evidence was emphatic: she said no. If it was open to the jury to accept that evidence, then it was open to the jury to conclude that the complainant did not consent to any penetration that involved McGrath.

92 In our view, none of the matters identified by the applicant (either individually or in combination) required the jury to have a doubt about whether the complainant said no (and thus evidenced her lack of consent). It was open to the jury to reason that the various statements made by the complainant after the event (both as to errors in detail, and statements such as 'it wasn't their fault' and 'I wanted it to happen') were not inconsistent with the complainant's core evidence that she said no. In assessing the weight of the applicant's inconsistencies and subsequent statements, the jury was entitled to have regard to the evidence about the complainant's state and her level of distress at the time. Ultimately, the question of whether the jury could be satisfied beyond reasonable doubt that the complainant was not consenting was quintessentially a jury question.

93 When one factors in the other matters relied upon by the applicant (the so-called deficiencies in the complainant's account, the complainant's intoxication and the applicant's previous good character), there remains an issue that was one for the jury to determine. While the jury might have entertained a doubt about whether the complainant consented, they were not bound to do so. None of the matters relied upon by the applicant (again, either alone or in combination) compels the conclusion that the complainant's evidence that she said no was either untrue or unreliable.

94 Once the jury concluded that the complainant said no, it was a very short step to then conclude that the applicant could not have reasonably believed that the complainant was consenting thereafter. The complainant was cross-examined about her failure to say no at any subsequent point in time. She gave what the jury might have thought was a rational explanation involving the circumstances she found herself in and her state of mind. It was open to the jury to accept the complainant's evidence about these matters. Equally, in our view, it was open for the jury to conclude beyond reasonable doubt that, having regard to all of the circumstances, the applicant did not reasonably believe the complainant was consenting after she said no. Like the issue of consent, while the jury might have entertained a doubt, they were not bound to do so.

95 The applicant relies on the fact that, after the invitation was given to McGrath, the complainant performed oral sex upon the applicant in circumstances where he might reasonably have thought she did so consensually. In other words, the applicant might reasonably have believed that the complainant demonstrated by her acts that she continued to consent to sexual relations with the applicant. Moreover, because McGrath was penetrating her vagina with his fingers at the time, the applicant might reasonably have believed that she had come to agree that sexual acts could continue between the three of them. So, when the reference to the 'spit' was made, the complainant laid back down and events proceeded without further comment by the complainant and the applicant might reasonably have believed that she was consenting.

96 The jury might have taken this view of events so as to conclude that the prosecution had not established the absence of the applicant's reasonable belief in the complainant's consent. But in our opinion it was not bound to do so. Significantly, the applicant made no further enquiry as to whether the complainant was consenting. The events in question all happened in a very short timeframe. The jury was well entitled to conclude that, in saying 'no', the complainant had withdrawn consent from all further sexual relations in unequivocal fashion, and that a reasonable person in the applicant's circumstances could not have thought otherwise. The jury was further entitled to conclude that nothing that had transpired in the short period before the charged acts occurred changed that position, and that the complainant's silence and the absence of physical resistance would not have caused a reasonable person in the applicant's circumstances to think that the complainant had changed her mind.

97 In our view, the matters raised by the applicant under proposed ground 2 make the question of whether the jury's verdicts were unreasonable or unsupportable sufficiently arguable to justify a grant of leave. We would, however, reject ground 2 on the basis that, as we have said, while the jury might have entertained a doubt about the applicant's guilt, it was not bound to do so.

98 We will grant leave to appeal. The appeal, however, will be dismissed.

[1] Not counsel who appeared in this Court.

[2] (1980) 146 CLR 64 ('O'Connor').

[3] See s 34C of the Crimes Act as it was at the relevant time; see now s 36(1).

[4] See s 37G of the Crimes Act as it was at the relevant time; see now s 36A.

[5] See s 324 of the Crimes Act.

[6] See s 323(1)(a) of the Crimes Act.

[7] See further, s 324C of the Crimes Act.

[8] Part 8.6.1.3.

[9] See now s 36B(1)(a).

[10] The same position applied to McGrath in respect of his penetrations in charges 1 and 3.

[11] (1990) 19 NSWLR 467 ('Coleman').

[14] See Coleman (1990) 19 NSWLR 467, 487.

[15] Dunn (a pseudonym) v The Queen [2017] VSCA 371 ('Dunn').

[17] [2014] VSCA 339; (2014) 44 VR 423.

[18] See in particular Xypolitos [2014] VSCA 339; (2014) 44 VR 423, 433 [43].

[19] Dunn [2017] VSCA 371 [83].

[21] See Coleman (1990) 19 NSWLR 467, 487.

[22] See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 133 [27]-[28], 135 [33], 150 [81]; Allen (a pseudonym) v The Queen [2016] VSCA 59 [74]-[77].

[23] See, eg, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494-5; R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 629-30 [20]; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113]; R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308, 329-30 [65]-[66].