Ground 1:

The learned Trial judge erred in allowing Prosecution to adduce the evidence of Mr Golecha pursuant to sections 60 and 66 of the Evidence Act 2008 (Vic), and therefore erred in directing the jury as to the manner in which they may use the evidence.

Ground 2:

The trial of the Applicant miscarried in circumstances where the Prosecution were permitted to adduce the evidence of Mr Luv Golecha.

1. The applicant's written submissions in relation to ground 2 relied upon ss 137, 97 and/or 90 of the Evidence Act.
2. For the reasons that follow, we have concluded that leave to appeal should be granted and the appeal allowed. The applicant's conviction should be set aside and a retrial ordered.

1. The offending, as alleged by the prosecution and found by the jury, was set out by the trial judge in her reasons for sentence,[6] from which the following summary is taken.
2. WK was married in Iraq and has two children now aged 20 years old and 17 years old. She left her husband in 2015 and moved to Australia with their children, but she and her husband remained married. WK spoke very little English, had limited supports and was struggling financially.
3. In 2019 the applicant was living with his two teenage children. He was working in his trucking business and he advertised a job on Facebook. WK made contact with him in the hope of securing employment for her brother. That communication led to the applicant having contact with WK and ultimately she and the applicant formed a relationship, which lasted between approximately July 2019 and September 2020.
4. The applicant was convicted of raping WK on three separate occasions, in July 2019, in February 2020 and in September 2020.
5. In July 2019, WK was at the applicant's house. She was there to help the applicant with cleaning in return for use of his car. This was only the second or third time the applicant and WK had met in person. She took her children with her and they were playing with the applicant's children outside. WK said that before these events there had been no physical contact or affection between her and the applicant.
6. WK had gone upstairs to tidy the applicant's bedroom. The applicant came into the room and closed the door. He came over to her, ostensibly to assist, but began to touch her. WK said, 'I wanted to leave the room and then he held me from the back. ... He turned me and tried to kiss me.' The applicant tried to kiss her on the mouth. She said, 'I tried ... to push him away but he pushed me on the bed and he removed my pants.' She said the applicant touched her breasts and vagina.
7. She said she was trying to resist the applicant and that 'After I had tried to stop him touching me, he said, "This is normal and it's natural to happen between two people"'.' In terms of resisting, she described physically pushing the applicant but that he held her down. She said, 'I tried ... with all my strength to push him with my hands, legs, but I couldn't, he was strong. ... Then he penetrated his penis into the vagina with force ...' When asked 'What do you mean by force'? she said, 'It means he raped me.'
8. The applicant penetrated her for two to three minutes. She said, 'At that moment, I surrendered ... because I tried to resist him and I was unable to ... because he was strong. His body was strong. He held me by force.' The applicant ejaculated inside her vagina. This was the basis for charge 1 or rape.
9. Notwithstanding the events of July 2019, the relationship between the applicant and WK continued and developed into a sexual relationship. They would see each other most days. At times the applicant would visit her at her house and sleep on the couch in the loungeroom. She continued to perform housekeeping tasks at the applicant's house and to look after his children at times.
10. In February 2020 WK was at the applicant's home. The applicant was aware that an application had been made for her husband to move to Australia and that he was awaiting approval of a visa. On this occasion when WK was at the applicant's home she received a phone call from her husband's immigration lawyer. She decided not to answer as she was fearful of the applicant's reaction. However, the applicant saw that a call came through and asked to see her phone. WK refused as she did not want the applicant to see the caller ID. She said this sparked an argument. She said that she wanted to leave, however, 'he begged me to clean his room.' The applicant told her she was 'not going anywhere' and 'we will clean.'
11. WK relented and went upstairs. She said, 'I thought I would clean quickly and go.' The applicant told his daughter to take WK's daughter and leave the house. The applicant went upstairs and entered his bedroom. There was a short exchange before the applicant tried to kiss WK. WK reiterated that she wanted to go home. The applicant responded saying, 'Every time, you're always saying no'. She reiterated to the applicant that she did not want to have sex, but he pulled her close and began trying to touch her. She told the applicant to let her go and that she had not had a shower, but the applicant said, 'No, I like your smell'. The applicant told WK that he wanted to have sex. He pushed her onto her back on the bed, saying, 'Stay here a little bit with me, let's enjoy it'. WK was physically resisting.
12. The applicant removed WK's pants and then touched her breasts, before putting his erect penis into her vagina. The applicant ejaculated inside her vagina. This formed the basis of charge 2, rape.
13. At some point in mid-2020 WK became aware that her husband had been granted a visa and would soon be coming to Australia. She called the applicant to tell him that she wanted to talk to him about this news. The applicant was aware that her intention was to reunite with her husband and that they would live as a family.
14. The purpose of her visit was to confirm to the applicant that she would not see him anymore. She took the applicant food and had a conversation with him, then she said that she was leaving. The applicant said, 'No, stay my love. .... Let's have sex one last time to say goodbye.'
15. WK refused. She was standing next to the door when the applicant pushed her to the couch. Her head hit the wall. The applicant started to remove her clothing. She said, 'I resisted and tried to push him away.' She described the applicant removing her tracksuit and then pulling her legs before penetrating her vagina with his erect penis. The incident ended after the applicant ejaculated inside WK. This formed the basis of charge 3, rape.
16. Charges 4 and 5 concerned a further occasion, in September 2020, when WK went to the applicant's house to tell him that she would not be with him. This made the applicant angry, and he told her that 'you are either mine or to the grave'. WK said she took that comment seriously. She said that the applicant then put his hands around her neck and began choking her. She was in pain and could not breathe. This act of strangulation formed the basis of charge 4, common law assault.
17. After the applicant removed his hands from WK's neck, he told WK that she had to stay and they sat down on the sofa. WK said that the applicant 'put a knife and scissors in front of him... He put them on each side, and he was pointing, one on each side and he said, 'I will kill [your husband]'. This formed the basis of charge 5, make threat to kill.
18. WK had given a statement to police in which she had told police that the applicant had made certain statements to her relevant to his views about consent. That statement was not in evidence at the trial, but WK was asked certain questions about what she had in that statement, as follows:[7]

[PROSECUTOR]: And [WK], did you say this to the police: 'I would say, "you are forcing me", and he would reply by saying "you are my wife. You have to give me what I ask for." I would say, "no, you are just my boyfriend." He would say, "you have to give me what I ask for." I would only say, "I don't want it"'.? ---Yes, right.

You said those things to the police?---Yes.

And were you telling the truth when you said those things? --- (Direct) Yes.

All right. And did you say those things and did the accused man say those things to you on any of the occasions that you've told this jury about. That is July 2019, February 2020, or September 2020?---(Through interpreter) Yeah. I told you - you, ah, ah, ah, he didn't, ah, say that, ah, in the first occasion.

All right. What about February 2020 and September 2020. Did he say those things to you?---Yes.

1. In cross-examination, the following exchange occurred:

[DEFENCE COUNSEL]: [The prosecutor] asked if you recall saying to the police 'I would say "You are forcing me" and he would reply by saying "You are my wife; you have to give me what I ask for". I would say "No, you are just my boyfriend"?---(Through Interpreter) I never said to him - in my mind I never said to him that he is my boyfriend as a 'boyfriend' in English. I didn't understand the meaning of 'boyfriend' fully, whether it is friendship or, like, I have to be in relation with him, in love with him. Like, she didn't understand the meaning of 'boyfriend' when she said that.

So on 17 June 2021 when you made the statement to the police did you have an interpreter to help you write the statement?---Yes.

And after writing the statement did the interpreter read the statement to you?---Yes.

Did you ask the interpreter to clarify what the word 'boyfriend' meant?---No, I didn't.

And at the end of that statement did you sign it to say that the statement is true and correct?---Yes.

1. Mr Golecha provided a statement to police on 15 November 2023 concerning a conversation he had with the applicant on 1 August 2023. Mr Golecha, or his office, had also provided to police a copy of an email that Mr Golecha had sent to his supervisor, Mr Gandolfo. The statement and the email were before the trial judge at the time of her evidentiary ruling, and before this Court, but they were not adduced into evidence before the jury.
2. Mr Golecha gave evidence that the applicant had come to the electorate office where Mr Golecha worked and said that he wanted to discuss some issues. Mr Golecha then went to a room with the applicant and they talked for around 30 to 40 minutes. No one else was present. Mr Golecha said that he took notes of what the applicant said during their conversation. The notes were not tendered in evidence.
3. Mr Golecha said that the applicant raised a number of issues in the course of the meeting. His evidence about the conversation was as follows:

[PROSECUTOR]: Did he say these things to you, or words to this effect: that he felt that, in a relationship, he's entitled to have sex with or without the consent of the partner?---Yes. He did.

Did he say to you, or words to this effect, that he was 62-years-old and he has experience with what green lights are and how he doesn't need consent to act?---Yes. He did.

Right. And just in relation to those terms, 'green lights' and 'doesn't need consent', did he use those exact words? ---He did.

All right. Did he also say to you these words: 'If I want to have sex with my girlfriend, but she doesn't, I will have sex. It is not like I picked someone up on the road and in my car and forced them to. That is rape'. Did he say those words to you?---He did. Yes. Exactly those words.

Yes. Did he also say to you words to the effect that allegations like these are biased against men?---He did.

1. Mr Golecha gave evidence that he had reported the conversation to Mr Gandolfo that same day, 'right after the meeting'. Mr Gandolfo then asked Mr Golecha to send him an email setting out the matters about which Mr Golecha had given evidence, and Mr Golecha sent that email the next day. Mr Golecha said that Mr Gandolfo communicated those matters to the police. The email was not tendered in evidence.
2. In cross-examination, the following exchange occurred:

[DEFENCE COUNSEL]: So when you gave evidence earlier that he said that in a relationship, he's entitled to have sex with or without the consent of the partner, he wasn't referring to a specific relationship, was he?---The whole conversation was about the recent accusation that his recent former partner had.

He did not say that in that relationship, he was entitled to have sex with his partner?---No, he did not.

He was speaking in general terms, wasn't he?---He was.

And when he was speaking about his experience with green lights, that was also in general terms, wasn't it?---Yes.

And when he said that he was 62-years-old and had experience with green lights, he was speaking about his experience gained over his 62 years, wasn't he?---Yes.

...

He didn't say, for example, his ex-partner gave him green lights?---No.

You gave evidence earlier that he gave some exact words being, 'If I want to have sex with my girlfriend, but she doesn't, I will have sex. Not like I pick someone up on the road and put them in my car and force them to. That is rape'. That's what you say his exact words were; is that correct?---Yes, yes.

When you made a note of those exact words, you were using your fast note procedure, weren't you?---Yes, I was.

And when you note those exact words, that was your best recollection having written up your full notes after the meeting, wasn't it?---Yes.

So it's possible that you may have had a word or two misplaced when you say those were his exact words?---Um, no. Um, because this was something that was concerning. So I had a good recollection of exactly what he said and, um, written down.

1. Mr Golecha was also cross-examined about various other things the applicant had said to him in the course of their meeting, relevantly as follows:

[DEFENCE COUNSEL]: During this conversation, it's fair to say, isn't it, that [the applicant] was making various comments about the legal system and the governmental system?---He was.

But the overall gist of what he was saying was that he was protesting his innocence. Is that fair?---Um, can you repeat that?

I'll be more specific. He was - [the applicant] was telling you that accusations against him was false. Is that correct?---Yes.

...

[The applicant] was there at your office because he wanted to speak with Premier Dan Andrews; is that right?---Um, premier and the prime minister.

And the prime minister. And the - his belief was with their assistance, his - well, I'll withdraw that. I'll rephrase that. He was asking to speak to them for their assistance to prove his innocence; is that correct?---He was, yes.

1. In re-examination, the following exchanges occurred:

[PROSECUTOR]: Mr Golecha, you were asked some questions about some things that the accused man said to you about - I think you said - or it was put to you about the police or the justice system. Do you remember being asked questions in cross-examination?---Sorry.

Do you remember being asked a few moments ago by [defence counsel] about some things the accused man said to you about the court system about police and other things?---Yep.

All right. Did he say to you that the accusations were false and that the police and the courts and the government are a mafia?---Yes. He kept repeating those words, yeah.

1. Mr Golecha also agreed in re-examination that he had felt 'concerned and uncomfortable' about what the applicant had said to him.
2. Mr Golecha's statement to police (which, as noted, was not before the jury) contained additional matters that were not adduced in evidence at the trial:

(a) the applicant had come to the office 'trying to seek intervention by the government into the independent judicial process';

(b) the applicant made comments to the effect that 'women are given more rights and that their voice should be kept in check';

(c) when leaving, the applicant said that 'if the Australian Government cannot help him, he will go to the world court and international governments for help'; and

(d) after the meeting with the applicant, Mr Golecha was 'feeling uncomfortable, worried and concerned because [the applicant] had essentially admitted his guilt and revealed his views on consent and sexual assault to me'.

1. The relevant provisions of the Evidence Act are as follows:

59 The hearsay rule - exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

Note

Subsection (2A) was inserted as a response to the decision of the Supreme Court of New South Wales in R v Hannes [2000] NSWCCA 503; (2000) 158 FLR 359.

...

60 Exception - evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).

Note

Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594.

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Note

The admission might still be admissible under section 81 as an exception to the hearsay rule if it is 'first-hand' hearsay - see section 82.

...

66 Exception - criminal proceedings if maker available

(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if -

(a) the person who made the representation has been or is to be called to give evidence; and

(b) either -

(i) when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or

(ii) the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made.

Note

Subsection (2) differs from the Commonwealth Act and New South Wales Act.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including -

(a) the nature of the event concerned; and

(b) the age and health of the person; and

(c) the period of time between the occurrence of the asserted fact and the making of the representation.

Note

Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.

(3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing.

(4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave.

Note

Clause 4 of Part 2 of the Dictionary is about the availability of persons.

...

81 Hearsay and opinion rules - exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation -

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and

(b) to which it is reasonably necessary to refer in order to understand the admission.

...

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if -

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.

...

97 The tendency rule

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

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

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

(2) Subsection (1)(a) does not apply if -

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

...

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

1. The Evidence Act defines 'admission' in the following way:

admission means a previous representation that is -

(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding;[8]

Ground 1: did the judge err in concluding that Mr Golecha's evidence was admissible?

1. As noted above, the judge concluded that Mr Golecha's evidence, while hearsay, was admissible on two bases: s 60 and s 66. Those sections both provide exceptions to the prohibition on hearsay evidence.
2. The applicant submitted that the judge erred in concluding that Mr Golecha's evidence was admissible under either s 60 or s 66.

(a) In relation to s 60, he contended that this section does not apply in a criminal proceeding to evidence of an admission - and the statements made by the applicant to Mr Golecha were 'admissions' within the meaning of the Evidence Act.

(b) In relation to s 66, he contended that the condition in s 66(2)(b)(i) - that the person who made the representation has been or is to be called to give evidence - was not satisfied.

1. At the hearing of the application for leave to appeal, the respondent accepted that neither s 60 nor s 66 provided a basis for admitting Mr Golecha's evidence. It is appropriate to record why we consider that concession to have been properly made.
2. It must immediately be reiterated that, at trial, the parties had agreed that the statements in question were not admissions of the charged conduct; and it appears that they, and the judge, thus considered that the statements the applicant made to Mr Golecha were not admissions within the meaning of the Evidence Act. But on the appeal, the parties now agree that the relevant statements are admissions within the meaning of the Act.
3. In our view that agreement is correct. When regard is had to the definition of 'admission' in the Evidence Act, it is plain that the statements made by the applicant to Mr Golecha concerning the applicant's beliefs concerning consent to sexual activity were previous representations that were made at a time when the applicant was an accused in a criminal proceeding and were adverse to his interest in the outcome of the proceeding.
4. It follows from that conclusion that s 60 had no application and, to the extent that the judge relied on that section, her Honour erred.
5. Turning to s 66, it is clear from its terms that, while the section applies when a person who made a representation is available to give evidence, it is also necessary that 'the person who made the representation has been or is to be called to give evidence': s 66(2)(a). The applicant had not given evidence at the time the judge gave her ruling. Nor was there any suggestion that the applicant was to be called to give evidence at trial. It thus follows that the exception to the hearsay rule for which s 66 provides was not engaged, and to the extent that the judge relied on that section, her Honour erred.
6. Notwithstanding the judge's errors, the respondent contended that her Honour had been correct to admit Mr Golecha's evidence. That was because his evidence was admissible under s 81 of the Evidence Act, which provides that the hearsay rule does not apply to evidence of an admission. No argument concerning s 81 was put to the judge.
7. The respondent's submission concerning s 81 is correct. As discussed above, the applicant's statements to Mr Golecha concerning his beliefs about consent in sexual activity were admissions, to which s 81(1) prima facie applied.[9] The applicant initially sought to contend that s 81 is confined by the terms of s 60, so that if evidence is not admissible under s 60 it is also not admissible under s 81. However, that argument was not pressed. In our view, it cannot be accepted. Section 81 is not confined by the terms of s 60. Rather, it is a distinct exception to the hearsay rule and operates according to its terms, subject to a series of specific exceptions found in ss 82 to 86, none of which is presently applicable.[10] Indeed, the note to s 60(3) reflects this conclusion; the note states that an admission 'might still be admissible under section 81 as an exception to the hearsay rule if it is "first-hand" hearsay - see section 82'. That is a clear legislative signpost that s 81 operates to render hearsay evidence admissible in circumstances where s 60 does not so operate.
8. Thus Mr Golecha's evidence was admissible at the trial, subject of course to the possibility of exclusion under ss 137, 97 or 90 (which are the subject of ground 2).
9. There is, however, a further question arising from the judge's error, which is whether her Honour gave appropriate directions to the jury in relation to the applicant's admissions. In that regard, the applicant contended as follows:

Assuming that the representations made to Mr Golecha were in fact 'admissions' and prima facie admissible under section 81(1) of the Evidence Act, the learned Trial Judge may have directed the jury that they may only use an admission if they are satisfied that the admission was made by the accused and its substance is truthful, and may also have warned the jury as to the potential unreliability of the evidence, if the circumstances of the case required it. That is the extent to which the learned Trial Judge would have been permitted to direct the jury. The learned Trial Judge would not have been permitted to direct the jury that they could use the evidence in assessing the credibility or reliability of the Complainant's evidence.[11]

1. We do not accept the submission that the trial judge was not permitted to direct the jury that they could use the evidence in assessing the credibility or reliability of WK's evidence. Once the evidence was admissible under s 81, there was no other relevant restriction on its use found in the Evidence Act.[12] The Court could have given a direction under s 136, which permits a Court to limit the use of evidence; but no application for such a direction was made in the present case.
2. However, where evidence is adduced of an admission by an accused, it is necessary for the trial judge to consider what directions are necessary and appropriate in relation to the admission. In that regard, and depending on the circumstances:

(a) the judge may need to direct the jury that they may only use an admission if they are satisfied that it was made by the accused and was truthful (known as a Burns direction[13]); and

(b) the judge may need to give the jury an unreliability warning under s 32 of the Jury Directions Act 2015; and

(c) where the admissions were made in a mixed statement, containing inculpatory and exculpatory parts, the judge may need to direct the jury that it is for them to determine what weight to give the different parts of the statement.[14]

1. Because neither the parties nor the judge understood the applicant's statements to Mr Golecha to involve admissions, the question whether directions of these kinds were required was not squarely addressed. Nonetheless, the judge gave directions that in substance reflected a Burns direction. After warning the jury that they could not use the relevant comments as an admission of the offences, the judge said this:

That is, if you are satisfied that [the applicant] made those comments, there does not seem to be dispute about that, even if you are satisfied they do reflect his beliefs about consent, you cannot conclude they are a direct admission to these offences. If you accept they are relevant as a reflection of his general views, you may use them as the prosecution has contended for; that is, in those two ways relevant to informing your assessment of the credibility of [WK's] description and/or relevant in informing your assessment of [the applicant's] beliefs about consent but not as a specific admission to anyone of those three charges.[15]

1. The judge was correct to observe that there was no real dispute that the applicant made the remarks to Mr Golecha. Nor was there really any dispute that the remarks were 'truthful', in that they reflected the applicant's genuine beliefs at the time they were made. Defence counsel, in closing, addressed those remarks as follows:

You may conclude that - from what [the applicant] said to Mr Golecha that he has a regressive view about women. You may conclude that, but that [doesn't mean] that he raped [WK]. It was perhaps an odd encounter at an electoral office where someone walks into a local member's office and asks ... for the Premier and the Prime Minister saying a wide range of things. You shouldn't accept, in my submission to you, Mr Golecha's evidence that [the applicant] was only talking about this particular case because Mr Golecha also accepted that [the applicant] was talking about relationships in the general sense, talking about his experience over 62 years but regardless of the variety of things including mafia and things that he said, he was clear about one thing; the accusations were false. He was there to prove his innocence. One may question the merits of trying to engage the Premier or the Prime Minister to assist him to prove his innocence, but that's not why we're here. Just because he says that the (indistinct) of green lights, various things about partners and consent, it doesn't mean that he says that he procured or procures sex by physical force and [it] doesn't add up ...

1. In those circumstances, the judge's directions were sufficient to comply with the requirements in Burns.
2. Nor, in our view, was the judge required, on the material before her, to give an unreliability warning under s 32 of the Jury Directions Act. No such direction was sought, perhaps unsurprisingly given that the reliability of Mr Golecha's evidence was not in issue. He had taken contemporaneous notes of the conversation, and as noted above his evidence was not in dispute. Thus the risks sometimes posed by evidence of a previous representation were not present in this case.[16] Rather, what was in dispute was what use the jury was entitled to make of Mr Golecha's evidence. That was not a matter that required a s 32 direction.
3. Finally, we do not consider that the judge was required to give a direction to the effect that it is for the jury to decide what weight is to be given to the inculpatory and exculpatory statements the applicant made to Mr Golecha. Although there may be cases where such a direction is required, it does not appear to us that this was such a case. Furthermore, no such direction was requested, and the applicant did not contend that this was a case where the judge was required to give such a direction even though it had not been requested. Finally, had such a direction been given, it would almost certainly have included a direction that the jury 'may give less weight to exculpatory assertions than to admissions',[17] with an explanation as to why that is so.[18] Such a direction would not necessarily have been to the applicant's advantage.
4. Thus we would grant leave to appeal on ground 1 but dismiss the appeal on that ground. The judge was correct that Mr Golecha's evidence was admissible as an exception to the hearsay rule (albeit on a different legal basis than she had identified), and her Honour did not fail to give the necessary directions in relation to Mr Golecha's evidence based on the material before her.
5. However, as we explain below, the fact that the parties and the judge failed to appreciate that the applicant's statements to Mr Golecha were admissions within the meaning of the Evidence Act meant that the trial then proceeded on an incorrect basis. This had other consequences, as we explain below.

Ground 2: Did the judge err in refusing to exclude the evidence?

1. Under cover of ground 2, the applicant relied on three distinct reasons why he contended Mr Golecha's evidence ought to have been excluded: s 137, s 90 and s 97 of the Evidence Act. It is convenient to address s 90 first, because that section is directly concerned with admissions and was thus potentially applicable to require the exclusion of Mr Golecha's evidence of the applicant's admissions.
2. The applicant briefly mentioned s 90 in argument before the judge. However, as explained above, the parties and the judge all concluded that the applicant's comments to Mr Golecha were not admissions. It appears that, for that reason, s 90 was not pursued and the judge did not rule on it.
3. On the appeal, of course, the parties have taken the view that the applicant's remarks were admissions and, as explained above, we consider that to be correct. Thus s 90 was plainly capable of applying.

The parties' submissions on s 90

1. In relation to s 90 of the Evidence Act, the applicant submitted that, having regard to the circumstances in which the statements were made, it was unfair to the applicant for the prosecution to use Mr Golecha's evidence at trial. The particular circumstances on which the applicant relied were as follows:

(a) the applicant's comments to Mr Golecha were made four years after the first incident and almost three years after incidents three and four;

(b) the comments were general in nature and not specific to the allegations;

(c) the comments were 'handpicked' from a longer conversation that took some 30-40 minutes, and the meaning of the comments, taken out of context, could not be properly assessed, given that there was no recording of the conversation;

(d) the applicant, a disgruntled accused in criminal proceedings, was 'ranting', protesting his innocence, seeking to have the government to intervene in the judicial process and threatening to go to the World Court;

(e) the applicant had a history of mental illness, following a truck accident in 2019, that had included two psychiatric inpatient admissions and a diagnosis of PTSD and other mental health problems;

(f) the applicant had been remanded in custody for approximately 13 months before his statements to Mr Golecha and, while in custody, had been unable to work and had been allocated a carer; and

(g) the applicant was, by the time of his statements to Mr Golecha, aware of the case against him and may, since the time of the alleged offending, have developed a state of mind in anger in response to the allegations.

1. The applicant accepted that no psychiatric evidence was led about his mental health on the application to exclude Mr Golecha's evidence. He submitted that, had the parties appreciated that the statements were admissions, the hearing might have proceeded differently in that regard. The record available to this Court demonstrates the following matters concerning the applicant's mental health:

(a) At some time in 2020 the applicant 'attended a mental health service in a state of grief and shock', having lost his truck, his livelihood, his company, and his ability to work and to provide for his family.

(b) Since a truck accident the applicant had been prescribed anti-depressant and anti-psychotic medication and had seen Dr Kalpana Balgobind for medication monitoring and management.

(c) The applicant also undertook counselling at The Talk Shop and regular sessions with psychologist Mr Dimitri Hawa. He was placed on a disability support pension.

(d) In October 2020 the applicant had an inpatient psychiatric admission in the context of an drug overdose with suicidal intent.

(e) Between July and August 2021 the applicant had a month-long admission at the Northern Hospital after presenting with suicidal ideation.

(f) In 2024 Ms Daniella Kocic (a psychologist) confirmed the applicant's diagnosis of PTSD and opined that the disorder was 'now complex', and that the applicant presented with a history of depression and anxiety symptoms, which had developed as a secondary response to the PTSD. She also diagnosed the applicant with adjustment disorder and acute stress disorder, and found him to have 'cluster B personality traits' (antisocial and borderline).

(g) In 2024, Dr Sharath Thimmareddy (a psychiatrist) confirmed the diagnosis of PTSD, and noted that the applicant continued to be symptomatic despite receiving medication. He recommended the need for ongoing monitoring of the applicant's mental health.

1. In contrast, the respondent contended that there was no unfairness to the applicant in the use of Mr Golecha's evidence at trial, because:

(a) the applicant voluntarily attended the electorate office and spoke with Mr Golecha;

(b) it was apparent from the cross-examination of Mr Golecha that the applicant conceded he made the admissions (it was implicit that the applicant accepted he was captured on CCTV); and

(c) Mr Golecha's evidence included the applicant protesting his innocence and saying that the charges were false.

1. The respondent submitted that the fact that the comments were made some years after the alleged rapes did not make the use of the evidence unfair. Nor did the more general nature or the context of the comments. Finally, the respondent submitted that the applicant's submission that the comments were 'handpicked' by Mr Golecha is without substance; indeed, Mr Golecha rejected such an assertion in cross-examination.
2. In relation to the mental health issues on which the applicant relied, the respondent accepted that there was evidence of mental health diagnoses in 2020, and later in 2024, but submitted that there was no evidence concerning the applicant's mental health at the time he spoke to Mr Golecha in 2023.

Consideration of s 90

1. Section 90 of the Evidence Act confers on the court a discretion to exclude prosecution evidence of an admission where, in the circumstances in which the admission was made, it would be unfair to the defendant to use it. The court must focus on the circumstances in which the admissions were made, and how those circumstances render the use of the evidence at trial unfair.[19]
2. In the present case the admissions were made voluntarily by the applicant. They were not made to any law enforcement officer. The applicant did not dispute that he had made the comments; indeed, the nature of his counsel's closing address to the jury was to the effect that he had made the comments, but they did not demonstrate that he had committed the offences. We do not accept the submission that Mr Golecha 'handpicked' the comments relied upon, in so far as that is said to render the use of the evidence unfair. Of course it is true that the prosecution adduced evidence about particular comments that were relevant to the proceeding. But that does not make the use of the comments unfair. The applicant could have, but did not, require the prosecution to adduce evidence of everything Mr Golecha wrote in his notes.
3. Nonetheless, there were aspects of the circumstances in which the admissions were made that might have made the use of the admissions unfair to the applicant. In particular, we consider that the applicant's history of mental health issues would be relevant to such an assessment.
4. Because the trial proceeded on an incorrect legal basis, there was no evidence put to the judge concerning whether those mental health issues might have impacted on the reliability of the applicant's statements to Mr Golecha. Had the parties and the judge understood the proper characterisation of those statements as admissions, so that s 90 was engaged, it would have been open to the applicant to have adduced relevant evidence concerning his mental health at the time of the statements. It is at least possible that such evidence could have led to a conclusion that the circumstances in which the admissions were made meant that it was unfair to the applicant for Mr Golecha's evidence to be adduced. However, in the absence of an appropriate evidentiary basis this Court cannot assess whether the evidence ought to have been excluded on the basis of s 90.
5. In addition, had the section 90 issues been appreciated and properly dealt with, it might have been the case that, if Mr Golecha's evidence was nonetheless admitted, directions ought to have been given by the trial judge concerning the reliability of what the applicant said to Mr Golecha. In particular, it may have been that evidence could have been led concerning the possibility that the applicant suffered from a mental illness that may have led to him to make a false admission,[20] or an admission that did not reflect his state of mind at the time of the alleged rapes.
6. In light of the above, we consider there was a substantial miscarriage of justice by reason of the trial being conducted on an incorrect legal basis, namely that the statements the applicant made to Mr Golecha were not admissions. As a consequence, the applicant, through no fault of his own, was denied the opportunity to argue that his admissions ought be excluded as unfair as contemplated by s 90. This exclusionary submission appears arguable and, if accepted, might have altered the outcome of the trial.
7. In light of that conclusion, it is not necessary for this Court to consider the arguments based on s 137 and s 97. However, we make the following observations.

Section 97

1. In the course of the hearing, it became apparent that the parties are in dispute about whether Mr Golecha's evidence is evidence that the applicant had a tendency to have a particular state of mind (in which case the evidence is governed by s 97 of the Evidence Act), or whether it was evidence that he in fact had a state of mind (in which case s 97 does not apply to it).[21] That issue was not raised before the trial judge. While we have not found it necessary to deal with that issue on the appeal, it is an issue to which the parties should give consideration before any re-trial.

Section 137

1. Unlike s 90, s 137 does not turn on the status of particular evidence as evidence of admissions. Thus the fact that the parties and the judge proceeded on an incorrect basis in that regard does not necessarily render the judge's conclusion on s 137 erroneous. Nonetheless, it seems to us that evidence concerning the applicant's mental health, which was relevant to the s 90 inquiry, could also have been relevant to the proper assessment of the probative value of the evidence under s 137.
2. In addition, the respondent contended that, were the matter to be remitted for a retrial, the basis on which the prosecution might seek to use Mr Golecha's evidence could be broadened beyond the two ways in which the evidence was used at the original trial. The respondent submitted that there were four potential ways in which Mr Golecha's evidence is relevant to the charges, namely:

(a) as a confession to the charges themselves;

(b) as evidence supporting the acts as charged, that is, evidence tending to support WK's evidence not in some general sense, but specifically in relation to the charged acts;

(c) as evidence supporting WK's credibility and reliability; and

(d) as evidence going to the applicant's state of mind.

1. At trial, the evidence was used in the third and fourth ways identified, but not in the first two ways identified. The respondent submitted that, if on a retrial the prosecution relied upon the evidence in the first and/or the second way, then the probative value of the evidence might be greater than the probative value the evidence had based on the more limited uses to which it was put. That submission must be accepted.
2. In those circumstances, it is not appropriate for us to express any concluded view about whether the judge was correct that s 137 did not require Mr Golecha's evidence to be excluded. Rather, the application of s 137 will fall to be considered afresh at any re-trial, based on the manner in which the parties put their cases at that time.

1. For the foregoing reasons, leave to appeal will be granted and the appeal will be allowed. A retrial will be ordered.
2. Finally, we wish to make clear that, whilst some of our remarks may appear to be critical of the trial judge, they are not intended to be. The prosecutor and defence counsel effectively presented the judge with a fait accompli, having erroneously agreed between themselves the status of the impugned evidence. A busy and conscientious trial judge cannot be expected to interrogate every agreement reached by counsel and, in normal circumstances, counsel would be bound by an agreement throughout the trial and appellate process.[22] It is unfortunate that, on this occasion, the agreement was not about a factual or strategic issue, and did not involve a forensic decision on the part of defence counsel, but concerned the erroneous legal classification of evidence, with consequential defects in the trial process from its commencement.

[1] To ensure that there is no possibility of identifying the victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and complainants.

[2] Contrary to s 38 of the Crimes Act 1958.

[4] Contrary to s 20 of the Crimes Act 1958.

[5] For convenience, we will refer to the proposed grounds of appeal simply as grounds of appeal.

[6] DPP v Mehrdad (a pseudonym) [2024] VCC 2107 ('Reasons').

[7] WK gave evidence through an interpreter, but on occasion she answered questions directly.

[8] Evidence Act 2008, Dictionary.

[9] Other statements the applicant made, such as those protesting his innocence and those concerning the police and courts being 'a mafia', were admissible under s 81(2).

[10] Section 81 is confined by s 82, which precludes the operation of s 81 in relation to non-first-hand hearsay evidence, but that section has no operation in the present case because Mr Golecha's evidence is first-hand hearsay - that is, he saw and heard the admission being made.

[12] As explained above at paragraph [48], s 81 is not limited by the terms of s 60.

[13] Burns v R (1975) 132 CLR 258; [1975] HCA 21.

[14] R v Rudd [2009] VSCA 213; (2009) 23 VR 444, 453-6 [42]-[45] (Redlich JA, Maxwell P agreeing at 445 [1], Vickery AJA agreeing at 465 [93]); [2009] VSCA 213.

[16] Some of the risks posed by evidence of previous representations are that:

• in repeating what the speaker said, the original words or their effect may not have been accurately recalled and repeated;

• any weaknesses of perception, memory, narration skill and sincerity of the speaker and the person reciting the representation may have been compounded;

• the representation was not made in court and may have been subject to pressures that resulted in a false account being given;

• the representation was not made on oath or affirmation, and so may not have been truthful;

• the jury was unable to assess the credibility of the speaker at the time he or she made the representation, and so are unable to know whether or not he or she was being honest.

See Judicial College of Victoria, Criminal Charge Book (updated 23 June 2025) pt 4.14, 373-4 [92] ; citing R v Harbulot [2003] NSWCCA 141; R v Vincent [2002] NSWCCA 369; R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69.

[17] Nguyen v The Queen (2020) 269 CLR 299, 311 [24] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ); [2020] HCA 23.

[18] Mule v R [2005] HCA 49; (2005) 79 ALJR 1573, 1580 [25] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ); [2005] HCA 49.

[19] Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 103 [107] (Gummow and Hayne JJ); [2007] HCA 46; DPP v Myles (2021) 293 A Crim R 166, 174-5, [25]-[29] (Priest, T Forrest and Walker JJA); [2021] VSCA 324; Headland (a pseudonym) v The King [2023] VSCA 174, [42]-[43] (Emerton P, Priest and Kennedy JJA).

[20] See, eg, Mallard v The Queen (2005) 224 CLR 125, 140-1 [40]-[41] (Gummow, Hayne, Callinan and Heydon JJ); [2005] HCA 68.

[21] This distinction was drawn by the New South Wales Court of Criminal Appeal in Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323, 396-8 [358]-[367] (Bathurst CJ, Hoeben CJ at CL and Simpson J); [2014] NSWCCA 303, upon which the respondent relied. Elomar was applied by this Court in Davies v The Queen [2019] VSCA 66 (Kaye, McLeish and T Forrest JJA). The applicant, on the other hand, relied upon R v Douglas [No 2] [2021] NSWSC 682, where Adamson J distinguished Elomar: at [63].

[22] See, for example NJ v The Queen [2012] VSCA 256; (2012) 36 VR 522, 632-3, [42]-[48] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 256. In that case, there had been no objection taken at trial to the admission of certain evidence. In contrast, in the present case, there was of course an objection taken; but the s 90 pathway was not pursued due to the erroneous classification of the evidence.