Omot v The Queen [2016] VSCA 24

CRIMINAL LAW - Appeal - Conviction - Trial of sexual offences - Character in a particular respect - Applicant had prior convictions for violence offence but none for sexual offences - Whether judge erred in permitting prosecution to lead evidence of prior convictions for violence if character put in issue - Evidence Act 2008, s 110 - Bishop v The Queen [2013] VSCA 273; (2013) 39 VR 642.

CRIMINAL LAW - Appeal - Conviction - Rape - Complainant deceased - Whether verdict unsafe and unsatisfactory.

1 Having regard to a number of factors that we will later discuss, we are of the opinion that the applicant's conviction for rape is unsafe and unsatisfactory. Thus ground 4 - which claims that the verdict is unsafe and unsatisfactory - must be upheld, the conviction set aside and a judgment of acquittal entered.[1]

2 There is no substance, however, in any of the other grounds of appeal.

3 Following a trial in the County Court, the applicant was found guilty by a jury of anally raping the female complainant, 'AD', with his penis.

4 The applicant and AD were known to each other. Both were of Sudanese origin. They had a mutual friend, 'IA'. The rape was said to have occurred in the bathroom of IA's unit in the evening of 20 October 2010, following a deal of socialising and a great deal of drinking.

5 At about 9.15am the following morning, the complainant told a social worker, 'MH', that she had been anally raped the previous night. MH subsequently took the complainant to the Royal Women's Hospital, where the Centre Against Sexual Assault ('CASA') was located. AD provided an account of the alleged rape to police, and underwent a medical examination.

6 On 8 January 2011, the applicant was arrested. He was interviewed on 9 January 2011, and denied having sex with the complainant (although, as will be seen, he did not maintain that denial at trial).

7 AD gave evidence at committal proceedings on 20 December 2011. As is the usual practice, her statement to police stood as her evidence in chief,[2] and she was cross-examined by defence counsel. The applicant was committed for trial.

8 For reasons that it is unnecessary to canvass, the matter was not listed for trial until 6 May 2013. Since, due to illness, AD was unavailable on that date, the trial did not proceed.

9 As it transpired, AD was never to become available to give evidence at trial, since she died on 19 May 2013.

10 In the event, the trial was fixed for hearing in August 2013. On 26 August 2013, since AD was unavailable to give evidence, pursuant to s 65(3) of the Evidence Act 2008 the trial judge delivered a ruling, Ruling No 1, permitting the prosecution to rely upon the complainant's statement to police and committal cross-examination. A second ruling made on 29 May 2014, Ruling No 2, refused an application by the defence to revisit the previous ruling. By a third ruling made on 3 June 2013, Ruling No 3, the judge refused an application to exclude the complainant's evidence based on the common law unfairness discretion.

11 In Bray,[3] the applicant sought leave to appeal against the first and third rulings. Leave to appeal those interlocutory decisions[4] was, however, refused.

12 The trial eventually took place in March 2015, and resulted in the guilty verdict which is the subject of the present application for leave to appeal against conviction.

1. The learned trial judge erred by not excluding the evidence of the complainant's police statement and committal evidence pursuant to s 137 of the Evidence Act 2008.
2. The learned trial judge erred by not excluding the evidence of the complainant's police statement and committal evidence pursuant to the common law fairness discretion.
3. The trial judge erred by ruling that the prosecution could lead evidence of the applicant's prior convictions for offences involving violence in rebuttal, if the defence were to lead evidence that the applicant had not been charged either before or after this incident with any sexual offence.
4. The verdict in the trial was unsafe and unsatisfactory in light of the nature of the evidence in the trial and the warnings given to the jury about its use.

14 As we have mentioned, grounds 1, 2 and 3 are without substance. Ground 4 succeeds.

Grounds 1 and 2 - Admissibility of the deceased complainant's committal evidence

15 It is unnecessary to again rehearse the salient aspects of Ruling No 1[5] and Ruling No 3,[6] since they were set out in the Court's reasons on the interlocutory appeal.

16 The applicant's counsel submitted that, whilst the arguments advanced under cover of grounds 1 and 2 were 'substantially considered' by the Court in the interlocutory appeal, it has been recognised that the nature of appellate review of a decision under s 137 of the Evidence Act 2008 at this stage differs from that at the interlocutory stage.[7] Accepting that this is so, in our opinion nothing bearing materially on the judge's decision under s 137 arose between the time that leave to appeal Ruling No 1 was refused and the time of trial. At the time of trial, the probative value of the evidence still outweighed the danger on unfair prejudice. The first ground, therefore, cannot be upheld.

17 With respect to ground 2, it was submitted that the exercise of the unfairness discretion 'should be reopened'. It suffices to say that, so far as we are able to see, there was nothing of substance in the circumstances which changed between the decision on the interlocutory appeal and the trial. The Court in Bray held, in effect, that the trial would not 'necessarily' be rendered unfair by the reception of the impugned evidence.[8] There is nothing that occurred at trial which casts doubt on the correctness of that view. We would add that it would be very unusual for a judge to exercise the residual common law unfairness discretion so as to exclude the whole of a witness's evidence, particularly where the witness's evidence is the 'backbone' of the prosecution case.[9]

Ground 3 - Evidence of character in a particular respect

20 The defence sought an advance ruling from the trial judge about character evidence. Counsel for the applicant sought to persuade the judge that, pursuant to s 110(1) of the Evidence Act 2008, the defence ought to be permitted to introduce evidence that the applicant enjoyed good character 'in a particular respect'. He told the judge that he wished to lead from the informant, and from his client (if called), the fact that the applicant had never been charged with a sexual offence. Such evidence would bear on the unlikelihood of the applicant committing a sexual offence. Counsel contended that, whilst adopting such a course 'obviously opens character in a particular respect', it did not 'open character in a general respect'.

21 Unsurprisingly, given that the applicant had prior convictions for offences involving violence, the prosecution's position was that, if the defence pursued the course anticipated, the prosecution would seek to introduce evidence of the applicant's prior convictions for violent offending in rebuttal of good character.

22 The evidence showed that, on 23 March 2006, in the Supreme Court at Hobart, the applicant was convicted of assaulting a police officer and was sentenced to one month's imprisonment, wholly suspended for two years; and on 18 July 2006, in the Hobart Court of Petty Sessions, he was convicted of two charges of common assault, and sentenced to four months' imprisonment suspended for two years, and to a community service order. Further, on 30 May 2011, the accused was dealt with for offences including two charges of attempted robbery, for which he was sentenced to an aggregate term of four months' imprisonment. It seems that about 15 months prior to the alleged rape, on 31 July 2009, the applicant and another male approached a male victim and the applicant physically assaulted the victim in a bid to obtain money or property from him. Less than a month later, on 24 August 2009, the applicant committed two attempted robberies.

23 In her ruling that the prosecution would be entitled to lead evidence in rebuttal if the applicant sought to introduce the envisaged character evidence, the judge said:

If the [applicant] adduces evidence that he is of good character in that he has no prior or subsequent charges for sexual offences to his name in support of his credibility and in support of the unlikelihood that he raped the complainant in accompanying violent circumstances as alleged, in my view he opens up his character in that particular respect to a sufficient extent to warrant rebuttal evidence to be adduced by the Crown. Rape is a sexual offence but it is also an offence involving violence and in this case the allegation is that there was violence over and above the sexual penetration itself. The specific conduct, the subject of the charge in this case, is allegedly that the accused forcibly subdued the complainant and anally raped her.

The defence seek to adduce evidence of good character in a limited respect, that is, that the accused has no prior or subsequent charges for sexual offending. That is true but in the circumstances of this case if defence sought to adduce such evidence from the police informant then in my view evidence of the accused's prior convictions for offences of violence would be admissible by way of rebuttal pursuant to s 110. In my view the proposed adducing of such evidence by defence in the context of this case opens up the accused's character in respect of his past perpetrations of violence. The accused cannot divide his character in the way agitated for without the prosecution being permitted to adduce evidence of prior matters for violence.

Without the rebuttal evidence the jury would be deprived of an accurate picture of the [applicant's] character insofar as offences of violence are concerned in circumstances where the sexual offending alleged against him in this case involves the alleged violence of the sexual offending itself but accompanying circumstances of violence. Therefore, the rebuttal evidence is admissible pursuant to s 110 ...

24 With respect, the judge's ruling undoubtedly is correct, and the applicant's position plainly untenable.

25 In this Court, counsel for the applicant placed reliance on Zurita[10] and Bishop.[11] In Zurita, the appellant had been convicted by a jury of aggravated sexual assault. The complainant was his stepdaughter, who was 12 years old at the time of the alleged assault in 1999. The appellant's criminal record included a conviction for larceny in 1995 for which he was fined; a conviction for an alcohol related driving offence and unlicensed driving, also in that year; and an assault in 1999 (committed against the complainant's mother and shortly after their divorce) which was found proved but dismissed. Counsel for the appellant wished to raise character 'in a particular respect', in that the appellant had not been dealt with by police for offences of child sexual assault. The trial judge effectively prevented him from so doing. On appeal, the Court of Criminal Appeal (NSW) held that there had been a miscarriage of justice, and set the conviction aside, holding that, among other things, the trial judge should have considered whether, if the appellant gave evidence that he was 'in a particular respect a person of good character' - that is, with respect to sexual misconduct with young children - the trial judge would uphold a submission that section 110(3) of the Evidence Act did not permit cross-examination upon the previous offences. Bishop essentially was concerned with particular jury directions on character evidence given in that case, and, save for making some general observations about the reach of s 110, does not assist in the resolution of the issue raised under cover of ground 3.

26 The account given by AD in her statement to police was that, prior to forcibly penetrating her anally, the applicant put his hand over her mouth and nose - putting a lot of pressure over her mouth, and preventing her from crying out - and, at one point, put his fingers into her mouth. He also pushed her against a wall, by placing one hand on her shoulder and another on her hip. Thus, on the complainant's account, she had been subjected to violence in the course of the applicant effecting penetration of her anus.

27 In circumstances where AD's allegations unmistakably included the assertion that she had been forcibly subdued as an incident of the rape, it is fanciful to suggest that the applicant ought be able to introduce evidence that he had no prior history of sexual offending. He was accused of a rape accompanied by violence, and had prior convictions for other offences - albeit of a non-sexual nature - where he had used violence in an endeavour to accomplish his criminal ends. To have permitted the applicant to introduce evidence that he was of good character in the particular respect adverted to - without the possibility of rebuttal - would have been to permit him to create a false impression of his character.[12] Hence, the trial judge was correct to rule as she did.

Ground 4 - Unsafe and unsatisfactory verdict

29 In order to understand our conclusion that the verdict is unsafe and unsatisfactory it is necessary to refer to the evidence in moderate detail.

30 AD made a statement to police on 24 October 2010, which was read into evidence by the prosecutor. She said that she was 42 years of age, unemployed and had moved to Australia from Sudan in 1987. Her friends call her 'Aunty'.

31 On 20 October 2010, at about 6.00pm, AD went to Footscray Park, and met up with male friends, 'IA' and 'LF', whom she knew from the Sudanese community. She drank 'around four to five glasses' of wine from a cask. As she, IA and LF were about to leave the park, another friend 'H' introduced her to a Sudanese male whose nickname was 'RMB'. She described RMB - the applicant - as 'in his late 20s', 'very tall', 'skinny', with 'short black hair'. He was wearing black jeans, a white T-shirt, black blazer and 'peaked cap'. Just before 10.00pm, AD and the others went to a bottle shop, and AD bought another cask of wine, following which they all went to IA's place to drink the wine.

32 IA lived alone in a flat situated on the ground floor of a block of flats. The five of them sat chatting, listening to music and drinking the purchased wine. AD drank 'perhaps another two glasses of wine out of a standard drinking glass, which would have been almost up to the top'.

33 At around 11.30pm, AD went to the bathroom. She lifted her dress, pulled down her underwear and urinated. About thirty seconds after she entered the bathroom, RMB came in and closed the door behind himself. AD thought RMB must have been 'busting' to go to the toilet, and said, 'Okay, okay, I'm nearly finished, I'm nearly finished, I'm nearly finished'. RMB did not reply, he just 'undid his belt and buttons on his jeans before undoing his fly'. AD stood up and turned around to flush the toilet - she did not want RMB to see what she had 'done in the toilet' - so kept the toilet bowl covered with her back to RMB. She had not pulled up her underwear, and just wanted to get out of the way because she thought that RMB 'needed to go to the toilet so badly'.

34 AD's statement then contained the following account:

The next thing I felt was his, RMB's, right hand around the top of my shoulder and over my mouth. His other arm was on my left hip pushing me towards the wall. I tried to say, 'What are you doing?' but it came out all muffled as his hand was covering my mouth and nose. There was a lot of pressure over my mouth. It was very uncomfortable. It happened so fast the next thing I knew RMB had entered me anally. By this I mean he had entered me anally from behind with his penis. I knew it was his penis as I felt it. It was not his fingers. It was definitely his penis. He just kept thrusting away from behind me. He would have put his penis into my anus and then pulled it back out eight to nine times. The pain was enormous. I could easily compare the pain to child birth. I was trying to yell but his hand was covering my mouth. At one stage he put his fingers into my mouth. I tried to bite them but I don't know if I did. I was making noises but no one came to help. I think they must have not heard me because the music was playing so loudly. I tried pushing him away but he was too strong. He was standing way too close and I had nowhere to move as I was over the top of the toilet bowl against the wall. He didn't say anything whilst he was putting his penis into my anus until after what seemed like an eternity, but it would have been around a few minutes. I then heard him make a noise like 'oh'. I think that was when he ejaculated inside me. He then pulled out. I could feel that my bottom was moist. By this I mean it felt wet. He then removed his hand from my face. I was just in utter shock and disbelief. I didn't see the seat point of yelling out for help as it was all over. I then turned around and could see RMB's exposed penis in a limp position. His penis was quite enormous even in its non-erect position. His jeans and underwear which was a pair of grey trunks were around his ankles. I then looked at him in the face. I wanted to see his reaction. He looked crazed. It didn't look like the man I had been speaking to earlier. When I say 'crazed' it wasn't human. His eyes looked crazy. He looked proud of what he'd just done. He then slowly pulled up his jeans and boxers. He then did up the buttons and zipped his jeans up before doing up his belt. He then looked at the floor and looked up at me and grinned. I just kept looking at him. He then turned around and casually walked out of the bathroom, closing the door behind him.

Once he left I looked down at the floor and could see blood and semen. There were a lot of drops of blood. It then hit me what he just did to me. At this stage my underwear was still down.

35 AD stated that she cleaned herself up and sat down on the toilet, 'emotionally destroyed' and 'sobbing'. She heard 'commotion' - 'male voices shouting and yelling' - from the other room. After she heard the front door slam, she waited for a few seconds before she walked out of the bathroom. IA and LF were on the couch - the other two had gone - but AD made no complaint to them of having been raped. There was then some discussion about the police having attended, before AD went to sleep.

36 At around 9.00am on Thursday, 21 October 2010, AD was woken by her telephone ringing. It was her social worker, 'VH', who was calling to remind AD that she had an outing that morning. AD told VH she could not go because she had been raped. VH, who was the first person whom she told she had been raped, took her to the Royal Women's Hospital where she attended CASA. Police were then called; she was medically examined; and police took her clothing.

37 AD's evidence from the committal proceedings was also played to the jury. She adopted her statement and was then cross-examined. As was observed in Bray, the cross-examination was 'certainly cursory'; and, '[a]part from the passing reference to there having been a discussion about condoms,[13] there was no exploration whatever as to the issue of consent'.[14] On fair reading of - and listening to - the cross-examination, it is hard to conclude other than that the cross-examiner made little attempt to restrict the complainant to pertinent matters. Certainly, counsel - and, it must be said, the examining magistrate - permitted AD to give long, discursive and largely unresponsive answers to questions, in which she introduced a deal of irrelevant (and sometimes prejudicial) material. Regrettably, there was little or no attempt to test AD on any of the important aspects of her account. And, apart from a small passage at the end of the cross-examination - AD admitted that she had once stabbed a man whom she had been in a relationship with, and had 'been in trouble in the past with stealing things' - no matters bearing on credit were put to the complainant.[15] At best, the cross-examination was superficial. Taking a generous view of it, one might conclude that it was the product of inexperience.

38 Notwithstanding the failure to test AD's evidence effectively at committal, however, as will become clear, a number of significant inconsistencies emerged in the various accounts that she gave.

39 VH was a social worker for AD in October 2010. In her evidence, she said that she telephoned AD at 9.15am on 21 October 2010 to remind her of an outing. AD informed her that she had been 'raped in the arse' and was 'bleeding from the rear'. AD told VH that police had removed the 'perpetrator', but she did not speak to them because she was in the bathroom. VH picked AD up from a flat where two males were present and took her to CASA at the Royal Women's Hospital. On the journey, AD was 'emotional' and 'crying'.

40 Under cross-examination, VH said that AD had 'a drinking problem' and 'mental health problems', with a diagnosis of 'depression'. When she picked AD up from the flat at 11.15am, she 'did look intoxicated' and smelled of alcohol.

41 Dr Natasha Frawley, 'an obstetric and gynaecology doctor', gave evidence. She said that on '21 September 2010' (sic) at about 3.00pm, she reviewed a patient, AD, at the Centre Against Sexual Assault at the Royal Women's Hospital. AD 'reported that she had suffered a sexual assault approximately 30 hours before' Dr Frawley reviewed her. The 'assault that she reported was anal penetration by the perpetrator's penis multiple times with no condom'. AD told Dr Frawley that she had noted 'blood at the scene', but rectally 'there was no current pain or bleeding'. When Dr Frawley first attended, AD was asleep and later said 'she was feeling sleepy'. An external examination revealed that there was 'no visible blood on the outside of her vagina or anus on inspection'. Dr Frawley observed no other injuries.

42 Dr Angela Sungaila, a forensic physician with the Victorian Institute of Forensic Medicine, examined AD at about 6.30pm on 21 October 2010 at the CASA unit of the Royal Women's Hospital. AD gave her a history. She said 'the accused put his hand in her mouth' and 'penetrated her anus with his penis'. He did not wear a condom and did not ejaculate. On direct questioning, AD said that he was 'squatting behind' her. Dr Sungaila said:[16]

He restrained her by putting a finger in her mouth. He hyperextended her neck, which means that he held it backwards. She tried to reason with him but he didn't want to hear anything from her. The assault caused pain and there was blood on the bathroom floor and blood on her shoes. As he was leaving, he threatened her with an empty glass bottle and he thumped her toe with his heel and he was wearing wooden clogs.

43 Dr Sungaila said that AD 'appeared to be sleepy' and smelled of alcohol. With respect to her physical examination of AD, she stated:

... on her head and neck I didn't observe any injuries in her mouth. She had tenderness on the right side of her neck which was extending down to her collarbone. She had tenderness over the back of her neck. On her left arm and hand she had tenderness over her left shoulder and tenderness over the inside of her left elbow. On her right shoulder she had a 1.5 centimetre by 4 centimetre red/purple bruise and she had had associated tenderness over the front of her right shoulder. On her lower limbs she had a .5 centimetre abrasion over the shin on the right side, and on her right big toe she had a .7 centimetre by .7 centimetre area of partial skin loss. On examining the anogenital area, she had a tiny abrasion on the anal margin, and that was in the 9 o'clock position looking directly at the anus. She also had a tiny abrasion in the natal cleft. The natal cleft is the groove that runs between the buttocks down to the anus, and that was about 4 centimetres from the anus. That was the totality of the injuries that I noted.

44 A number of swabs taken by Dr Sungaila were handed to Detective Burke.

45 Under cross-examination, Dr Sungaila agreed that, prior to her examination, Detective Burke had briefed her that AD was 'very inebriated' at the time of the 'alleged incident'. Detective Burke told her that AD was 'not sure' whether the male had used a condom or had ejaculated. Dr Sungaila said that her notes indicated that AD had told her that 'she had been drinking a lot'. Apart from saying that the majority of injuries she observed on AD were caused by 'blunt force trauma', Dr Sungaila was unable to say how they occurred. She said the 'tiny abrasion on the anal margin' could have been caused by the 'passage of a constipated stool', and could also have been caused by consensual anal sex (which can also cause bleeding).

46 Senior Constable Stuart Yin, a Senior Constable of Police, gave evidence which was important in several respects. On 21 October 2010, he was on divisional van duties with another police officer when, at about 1.08am, he was requested to attend a flat. They arrived at 1.10am, and were shown upstairs by the male occupant, IA. There was a male, LF, who was refusing to leave. Also present was a female (which could only have been AD), with whom police had no 'interaction'. Police escorted LF from the premises and returned to duties at 1.19am.

47 Under cross-examination, Senior Constable Yin said that when they attended the premises they were met downstairs by IA. They then went up in an elevator. LF was the man asked to leave the premises, 'not Luka Omot'. There was no 'interaction' with the female present, who made no attempt to speak to police - who were uniformed - 'in any way'. The female was sitting down. She did not look distressed. If the female 'had appeared distressed', Senior Constable Yin would have made enquiries about it.

48 Detective Julie Burke, who was attached to the Sexual Offences and Child Abuse Unit, went to the CASA at the Royal Women's Hospital at 4.00pm on 21 October 2010, where she had a conversation with AD. Later, she met with Dr Sungaila and told her what AD had said to her. Dr Sungaila then conducted an examination and handed exhibits to Detective Burke, which were later put into police property.

49 Sergeant Adam Pawsey, the informant, was a Sergeant who had previously been attached to the Sexual Offences and Child Abuse Unit. At about 6.35pm on 21 October 2010, police attended IA's flat. They observed blood on the floor and walls of the bathroom, and on a mop. CCTV footage taken from various security cameras in and around IA's apartment complex was played to the jury. The footage showed a group entering the complex at 10.49pm. Sergeant Pawsey identified AD, IA, LF, the applicant and an 'unknown male' as shown in the footage. The applicant wore a 'white hooded top' and 'dark pants'. He is six feet, eight inches, tall; and AD is five feet, four inches, to five feet, six inches, in height. Camera 9, within the elevator, produced footage which shows the group going up from the ground floor. (The Court has viewed the footage. AD can be seen to kiss the applicant on the cheek.)

50 On 9 January 2011, the applicant was interviewed. The record of interview, which was video and audio recorded, was played to the jury. No admissions were made of sexual activity. Indeed, when the allegation was put to him that he had inserted his penis into AD's anus, the applicant replied, 'This is a joke or what?'. (The Court has viewed and listened to the interview. It is plain that, at different times, the applicant smiles and outwardly appears to be unconcerned.)

51 Scientific testing showed that the applicant's semen was on swabs taken from AD. Blood on the mop handle, floor and wall of IA's flat, originated from AD.

53 He said that on 20 October 2010, he called IA after he finished work and asked to have a drink with him. They went to the bottle shop and bought some 'whiskey and wine' and walked back to IA's place 'close to 6 o'clock', where they drank for 'less than two hours'. IA then received a call from the complainant saying that LF was 'too drunk to walk home' and she needed help to take him to the station. As a result, the applicant and IA walked to a park and met the complainant - he had seen her around the local area but did not know her well - LF and another man whom the applicant did not know. AD, LF and the other man had alcohol with them. By this stage, the applicant had consumed about half a bottle of whisky.

54 The applicant said that they went back to IA's unit, where he started getting to know AD. He also spoke to the man he did not know, who was playing music. AD and the applicant spoke to each other in the Dinka language. IA was drinking by himself, the other man was playing music and LF was asleep. The applicant did not see anyone playing card games.[17]

55 Prior to meeting AD at the park, the applicant said, he did not know how much alcohol she had consumed. While they were at the unit, the complainant tried to kiss him 'more than once'. Shown the CCTV footage, the applicant gave evidence that it showed AD giving him a kiss on the cheek. She had tried to kiss him on the lips but he turned his head. AD also tried to kiss him again later in the unit.

56 The applicant finished his bottle of whiskey. AD drank wine out of a glass coffee cup. The applicant and the complainant were holding each other, 'dirty dancing' and 'touching in a sexual kind of way'. AD asked the applicant if he had a condom, and that was when he knew 'she wanted to have sex'. They danced their way into the bathroom together. The applicant was 'drunk' but not 'too drunk'. He knew what he was doing.

57 In the bathroom, AD lifted up her skirt and pulled down her underwear. The applicant undid his trousers and zipper. They 'tried to do it in the front but it was uncomfortable'. AD turned around, 'went down on her knees' and the applicant put his penis in her vagina and they 'had sex'. While they were having sex, AD said, 'Put it in my anal' (sic). The applicant then spat on his hand, rubbed it on his penis and 'put it in her anal' (sic).

58 After he 'came', the applicant pulled his trousers back up, fixed himself up and 'walked out of the toilet'. The three other men were still there. Since the toilet door had been slightly open when they were having sex, the applicant thought they may have heard them. He asked, 'You guys knew we were having sex in there?', and they replied, 'Yeah'. The applicant then told the others not to talk about it.

59 AD stayed in the bathroom for less than ten minutes before coming out. After he left the bathroom, the applicant was in the unit for another half an hour or so before he left. The applicant told IA he would see him tomorrow. AD was there when he left the unit.

60 The applicant said that when the police interviewed him on 9 January 2011, he had been drinking all day and was drunk. He denied having sex with the complainant because he had been put in a police cell prior to the interview and all he was thinking was 'how to get out of there'. At the time he was 'scared' of 'being in prison', and was 'embarrassed', not knowing how 'to explain it to them'.

61 Ultimately, the applicant denied raping the complainant or forcing himself upon her. He did not use any force or violence to make her have sex with him. They were drunk and fell for each other. He believed that AD was consenting because she kept trying to kiss him; she asked if he had a condom; they were 'dirty dancing' and 'touching each other; and she lifted her skirt and pulled down her underwear.

62 In cross-examination by the prosecutor, the applicant agreed that he did not tell the police what he said in his evidence had happened. The applicant said that he had a drinking problem, and the events of 20 October 2010 occurred around the time he had relapsed and was drinking again. Much of the cross-examination was taken up by the prosecutor putting various parts of the record of interview to the applicant, asking him for comment on their veracity. He agreed that he looked like he was answering questions casually in the record of interview, but he asserted that he was scared 'inside'.

63 The applicant confirmed that his position was that AD told him to penetrate her anally. Cross-examined on his evidence in chief, the applicant said that blood came from the complainant's vagina. He said that he thought that was because she had her period or had not had sex for a long time. AD said in English, 'Put it in my arse'. The applicant said that he did not have any conversation with the complainant after she came out of the bathroom and before he left, but he thought they may have 'hugged or something like that'.

64 Later, the applicant said that he denied having sex with the complainant in the record of interview because he did not want to answer questions about it as it was a private act, and not something normally spoken about where they came from. The applicant admitted he lied to the police about having sex with the complainant, but denied that he lied because he had raped AD.

65 When re-examined, the applicant said that he and AD had vaginal sex for 'up to one minute or a minute and a half'. He was not sure, but he thought the blood came from her vagina. The applicant said that the blood did not come from elsewhere, because he spat on his hand and his penis 'went in smoothly'.

66 For reasons upon which we will elaborate, having carried out our own independent assessment of the evidence, in the unusual circumstances of this case we have a reasonable doubt about the applicant's guilt. We have not, of course, lost sight of the precept that a jury has the primary responsibility of determining guilt or non-guilt. In this case, however, any benefit that the jury might have enjoyed in seeing and hearing the witnesses was limited. The doubt we hold as to the applicant's guilt is, in our view, a reasonable doubt that the jury should have held.

67 The principles governing appellate intervention when a complaint is made that a verdict is unsafe and unsatisfactory are well-known. In SKA,[18] the High Court considered the appellate task. It was held to be wrong for the appellate court to concern itself with 'whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence'.[19] French CJ, Gummow and Keifel JJ said:[20]

To determine satisfactorily the appellant's appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.

68 And as Mason CJ, Deane, Dawson and Toohey JJ observed in M:[21]

... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

69 As we have said, the complainant's evidence was not adequately tested at the committal proceedings, so that, as a result of AD's death, the applicant was at trial deprived of the opportunity of subjecting her account to competent and rigorous investigation or challenge, and any trier of fact was deprived of the ability to properly scrutinise it. Despite the inevitable prejudice to the applicant's capacity to subject AD's evidence to satisfactory exploration and appraisal, however, a number of inconsistencies emerge on the available evidence - some very significant, others less so - as do other factors which, in our estimation, cast real doubt on the credibility and reliability of AD's account, such that the jury ought to have entertained a reasonable doubt about the applicant's guilt.

70 The first matter of importance is AD's consumption of alcohol. AD, the evidence revealed, had a drinking problem and mental health problems. Although the exact nature and extent of the problems was left largely unexplored, they were sufficient for AD to be subject to the care of a social worker, VH. Further, it is known that AD was habituated to drinking cheap wine in considerable volumes in public parks, as indeed she had on the evening when the relevant incident took place. On her own account, in the park she drank 'around four to five glasses' of wine from a cask; and then, having purchased another cask, drank 'perhaps another two glasses of wine out of a standard drinking glass, which would have been almost up to the top' at IA's place. When VH picked her up, AD looked intoxicated. And when medically examined many hours later, AD still smelled of alcohol, and Dr Sungaila was told by Detective Burke - whose source of information must have been AD herself - that AD was 'very inebriated' at the time of the 'alleged incident'. Further, Dr Sungaila herself noted that AD had told her that 'she had been drinking a lot'.

71 Next, AD was unreliable on matters of detail. For example, she told police that IA lived on the ground floor, in circumstances where there is no doubt he lived on an upper floor of the relevant apartment complex. Senior Constable Yin had to take the elevator to get to IA's flat, and security footage from the elevator shows the complainant and several companions - including an apparently very intoxicated LF - crammed into the elevator. (The footage also shows AD kissing the applicant.) It is somewhat remarkable that AD would not remember such a detail, and it probably bespeaks her level of intoxication.

72 Of less moment, perhaps, AD's description of the clothing worn by the applicant does not accord with what can be seen of it in the security camera footage. In her statement, AD described the applicant as wearing black jeans, a white T shirt, black blazer and 'peaked cap'. Security footage taken from various places and angles reveals, however, that the applicant was wearing a white (or light coloured) 'hoodie', which is covered in black or grey polka dots, and a yellow shirt with horizontal stripes. He certainly was not attired in a black blazer and white T shirt. Although this might be said to be a mere matter of detail, nonetheless, objectively viewed, AD was quite wrong in her description.

73 Standing in stark contrast to AD's inability to recall many of the matters to which we have adverted, however, was AD's detailed - but somewhat odd - description of her actions and thought processes in the bathroom. Thus, AD said that she thought that RMB had come in to go to the toilet, and she expressed no concern that he undid his belt buckle, buttons and fly whilst she sat with her underpants down. She said that she then turned around to face the toilet - still with her underwear down - before RMB entered her anally. AD's actions in standing and turning away from a man who had just unbuckled his trousers and undone his fly, whilst her underwear was down, is capable of being viewed as strange behaviour. Furthermore, her professed ability to recall her thought processes is inconsistent with her inability to recall other surrounding details. These aspects, in our view, cast doubt on the credibility and reliability of AD's overall account (an account which was, as is obvious, incapable of being tested at trial).

74 Events after the alleged rape are very significant. As we have mentioned, Senior Constable Yin attended IA's flat after the alleged rape. His evidence must, we think, be viewed as wholly objective. He saw a woman - AD - sitting in the flat, displaying no signs of distress. Had she done so, he would have made enquiries as to the cause of her distress. This evidence might be contrasted with AD's account that she did not leave the bathroom when the police attended, and was crying and emotional. Moreover, without descending to odious stereotypes, it might have been expected that, in the ordinary course, had AD been 'emotionally destroyed' and 'sobbing' after the alleged rape in the way that she claimed, she would have made a complaint to police. At the very least, it might have been expected that her distress would have been manifest to police who observed her in the flat.

75 It might also be thought that AD's observed injuries did not give objective support to AD's account. The tiny abrasion in the anal margin is unlikely to have produced blood sufficient to have required mopping-up. And it will be remembered that no blood was observed around the anus or genitals. In any event, the evidence was that the tiny abrasion might have been caused by a constipated stool, and blood might be produced by consensual anal intercourse. The applicant said that the blood that he observed was vaginal. At best, the evidence of blood was equivocal.

76 As to the other injuries not associated with the ano-genital area, there was no attempt by the prosecution to tie these to the circumstances of the alleged rape. Indeed, with respect to a number of the injuries, it is difficult to conceive how they might have occurred in the course of the events described by the complainant. They might be thought to be consistent with a person living rough, and mixing in a milieu where considerable amounts of cheap wine were consumed in public parks in circumstances where drinkers occupied different areas of the park according to racial group, and violence was common. Again, at the very highest, the injuries could only be said to be intractably neutral.

77 Moreover, and significantly, AD gave an account of the attack to Dr Sungaila which differed from the account in her statement in very important respects. She told Dr Sungaila that after the alleged rape, the applicant threatened her with an empty glass bottle and thumped her toe with the heel of wooden clogs he was wearing. These allegations added a new and sinister dimension to AD's account of the applicant's actions, yet they were not maintained in her later statement to police. (And it should be noted that a viewing of the security footage in any event shows clearly that the applicant wore what appear to be leather shoes - certainly not wooden clogs.) Furthermore, it will be remembered that AD told Dr Sungaila that she did not know whether the applicant had worn a condom or ejaculated, yet, by the time she made her statement, she claimed that the applicant ejaculated inside her and that she saw blood and 'semen' on the bathroom floor after intercourse.

78 Finally, the applicant gave evidence on oath. He could have done no more in his own defence. It is true that he initially lied to police, and the jury were not compelled to accept his explanation for the lie, or, indeed, his overall account. On the other hand, of course, the jury were not entitled capriciously to reject it. Our impression of the applicant's evidence was that it was plausible, and that plausibility was not diminished in any meaningful respect by cross-examination. Even without the applicant's evidence on oath, however, the frailties in the prosecution's evidence would have led us to harbour a reasonable doubt about the applicant's guilt. That doubt is reinforced by the applicant's evidence.

79 Making our own independent assessment of the totality of the evidence, in our opinion it was not open to the jury to convict. Any jury properly applying themselves to their task must have entertained a reasonable doubt.

80 For the foregoing reasons, we would grant leave to appeal against the applicant's conviction; allow the appeal; set aside the conviction; and order a judgment of acquittal.

[1] Criminal Procedure Act 2009, s 277(1)(b).

[2] Criminal Procedure Act 2009, s 130(3),

[3] Bray (a pseudonym) v The Queen [2014] VSCA 276 ('Bray').

[4] See the definition of interlocutory decision in s 3 of the Criminal Procedure Act 2009.

[7] McCartney v The Queen (2012) 38 VR 1, 11 [46].

[8] Bray, [101]. See also Haddara v The Queen (2014) 43 VR 53.

[9] Luna (a Pseudonym) v The Queen [2016] VSCA 10, [44] - [47]; Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 553.

[10] R v Zurita [2002] NSWCCA 22.

[11] Bishop v The Queen [2013] VSCA 273; (2013) 39 VR 642.

[12] Cf DPP v Newman [2015] VSCA 25.

[13] The passage of cross-examination was as follows:

All right. So before you went into the bathroom were there any conversations about condoms that you --- ? --- No.

Yes? --- What for? [IA] is a - is a friend of [LF], [LF] and I go years back, and then these two kids and I. So I won the game, so I said to him it's your time to shuffle, and 'excuse me, I'm going, you know, to have a piss', if you like, excuse the language, and there I go to the bathroom, yes, and ---

[15] Counsel did ask AD whether she was on 'any medication at that time for mental health', eliciting the response that she, AD, was on medication for 'depression'. There was no follow-up on the nature of the medication, however, despite AD saying, 'I can give you the name of it, it's in front of me in my bag right now'.

[16] Emphasis added to this and the following passage.

[17] In a non-responsive answer to a question asked at committal, AD volunteered that the applicant had been 'mesmerised' by how well she spoke Dinka, and had said to her, 'Oh, Auntie, Auntie, let's play some cards'. Following questions elicited evidence from AD that she and the applicant drank and played cards together.

[18] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. See also M v The Queen (1994) 181 CLR 487, 492-3; AE v R [2011] VSCA 168, [39]; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113]; R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40]; Greensill v R (2012) 37 VR 257, 276-7 [81]-[83].

[19] [2011] HCA 13; (2011) 243 CLR 400, 408 [20].

[21] M v The Queen (1994) 181 CLR 487, 494.