JURY DIRECTION - Propensity evidence - Uncharged acts - Directions to jury on uncharged acts - Whether judge erred in directing the jury as to the applicant's previous acts of violence - Recklessness - Whether judge misdirected the jury on test for recklessness - 'knowing that serious injury might occur' as opposed to 'knowing that serious injury will probably occur' - Application for leave to appeal allowed - Appeal allowed - Conviction set aside and re-trial ordered.

1 I have had the advantage of reading in draft, the reasons of Tate JA and I agree with her Honour and to the orders she proposes.

2 I have had the advantage of reading the judgment of Tate JA in draft form and agree, for the reasons her Honour gives, that the application for leave to appeal be granted, the appeal allowed and a re-trial ordered.

3 The applicant was convicted in the County Court of two counts of assault, one count of indecent assault, two counts of false imprisonment and one count of recklessly causing injury. He pleaded guilty to a further count of assault.

4 He was sentenced to eight months' imprisonment for the first assault (Count 1); twelve months' imprisonment for the second (Count 3); eighteen months' imprisonment for the indecent assault (Count 4); eight months' imprisonment for the first count of false imprisonment (Count 7); eight months' imprisonment for the second count of false imprisonment (Count 8); two years' imprisonment for the offence of recklessly causing injury (Count 10) and three months' imprisonment for the third assault (Count 11), to which he pleaded guilty.

5 The trial judge directed that two months of the sentence imposed with respect to the first assault, four months of the sentence imposed for the second assault; eight months of the sentence imposed with respect to the indecent assault; two months of the sentence imposed for the first count of false imprisonment and two months of the sentence imposed for the second count of false imprisonment be served cumulatively upon each other and upon the sentence imposed with respect to the offence of recklessly causing serious injury. The Total Effective Sentence was three years and six months' imprisonment with a non-parole period of two years and six months.

6 The applicant had also been charged with a fourth count of assault (Count 2), one count of rape (Count 5), a second count of indecent assault (Count 6), and a count of intentionally causing injury (Count 9). The jury returned a verdict of not guilty with respect to all these counts. With respect to the fourth count of assault the jury were directed to arrive at a verdict of not guilty by the trial judge on the ground that there was no evidence led to support it.

7 The applicant now applies for leave to appeal against conviction and leave to appeal against sentence.

8 The offences with which the applicant was charged arose out of allegations of violence perpetrated by the applicant against his de facto partner, Louisa Killiby, with whom he had lived for four years and with whom he has two children. Ms Killiby was 21 at the time of the offences.

9 The offences began on the evening of Monday, 27 October 2008 when the applicant came home to the house he shared with his partner, after he had been drinking and smoking cannabis, and accused her of being unfaithful. He then took some electrical cable from a drawer and tied her hands and feet together. Ms Killiby gave evidence that he said he would give her three options, either he could clamp her little finger, ram a pin under her fingernail or push her phone up her backside. These facts constituted the first count of assault, Count 1.

10 The applicant then untied Ms Killiby and forced her onto the floor, retied her hands behind her back and stuffed a bandana into her mouth, causing her to choke. He then rolled her on to her back and tore her clothes (including a pair of jeans) and underwear off. The jeans had been torn extensively down the seams in a manner which the trial judge considered to have required a great deal of violence. These facts constituted the second assault of which the applicant was convicted, Count 3.

11 Count 4, the only indecent assault of which the applicant was convicted, involved the applicant removing his penis from his clothing, playing with it for a while and then rubbing it over Ms Killiby's genital area for one or two minutes.

12 The applicant was acquitted of Count 5, an alleged rape following upon Count 4, in which the applicant was alleged to put his penis inside Ms Killiby's vagina without her consent. She claimed that she 'was telling him the whole time to stop but he wouldn't.' There was evidence that Ms Killiby did not complain about the rape initially to her neighbour nor initially to the police officer, but only later to a policewoman. Ms Killiby's brother also gave evidence that she had told him that the rape claim was false and that she was making a complaint to police just to get out of the relationship with the applicant. Ms Killiby denied this.

13 The applicant was also acquitted of count 6, an alleged indecent assault said to have occurred immediately after the rape in which the applicant was alleged to have withdrawn his penis from Ms Killiby and then urinated on her face. He then cut the cables from Ms Killiby's hands and feet and she went and sat on the couch and cried. Ms Killiby's evidence was that she did not have a shower before going to bed despite being urinated upon and that the puddle of urine that was left on the floor was not cleaned up. She said that she didn't tell the police officer that she had been urinated upon at the time of first describing having been tied up and raped, because she didn't think to do that at the time.

14 Count 7, the first count of false imprisonment, occurred when the applicant decided to go to bed and demanded that Ms Killiby go with him. This occurred at about 4 am on Tuesday, October 28, 2008. The applicant locked the front door, took the key to bed with him and cuddled up to Ms Killiby. Ms Killiby gave evidence that:

He said, he was saying that he was sorry and that he didn't mean it and everything and that's why he got me to stay in the bed with him so I couldn't leave.

Yes? - I didn't tell him I wanted to leave. I was just going to ...

What did he say when you said you wanted to leave? - I didn't tell him I wanted to leave.

Did he say anything about whether you could leave or not? - No.

Did you feel that you could leave? - No, I was locked in the house and he put the keys in his pocket.

15 On the Tuesday Ms Killiby bought a 'Sorry' card for the applicant. Later that Tuesday night the applicant and Ms Killiby had consensual sex. Ms Killiby gave evidence that she had decided to stay at that stage because of the children.

16 Count 8, the second count of false imprisonment, arose from conduct that occurred the next day, Wednesday 29 October. The applicant arrived home in the early evening, having been drinking and smoking cannabis, probably all day. He was intoxicated. An argument broke out. Ms Killiby tried to leave and went to the door. The applicant came and took the key before Ms Killiby could unlock it and pocketed the key. He prevented her leaving.

17 The applicant started screaming and yelling, and kicked Ms Killiby in the head three times, as a result of which Ms Killiby was hurt very badly, and she received bruising to the side of her face and a chipped front tooth.[1] Ms Killiby sank to the floor and sat with her knees up in a foetal position and was crying. In his sentencing remarks, the trial judge observed:

The bruising is not slight but quite extensive and, in my opinion, substantially representative of significant blows to a wide range of her body. The chipping of the tooth [is] not large but nevertheless must have been caused by significant violence. That is Count 10, the count of recklessly causing injury.

18 Later on the Wednesday evening, Ms Killiby heard one of the children awaken. She went to the infant's room and picked him up, carried him to the bedroom she shared with the applicant, to change the infant's nappy and get him a bottle to go back to bed. The applicant followed her into their bedroom and then grabbed a metal street pole from the side of the bed and struck it down hard on the edge of the bed, causing damage. These facts constitute Count 11 (assault), to which the applicant pleaded guilty.

19 Ms Killiby grabbed the keys to the front door that by then lay on the kitchen bench and ran out of the house to her neighbours'. The police were called. Photographs identified by Ms Killiby included the metal pole used in the assault; an area of the wall punched by the applicant; the electrical cords used by the applicant; torn clothing; bruising to her body; the chipped tooth; a knife that had been used to cut the cords; and damage to the metal frame of the bed when struck by the pole.

20 With respect to the conviction, the applicant relied on the following grounds, after having abandoned several others:

GROUND 1: The Learned Trial Judge erred in failing to provide the jury with any form of propensity warning.

GROUND 2: The Learned Trial Judge erred in failing to direct the jury as to the limited use that could be made of the Applicant's plea of guilty on the count of Common Assault.

...

GROUND 5: The Learned Trial Judge erred in failing to direct the jury as to the elements involved in the offence of common assault. [2]

GROUND 6: The Learned Trial Judge erred in failing to direct the jury as to the elements involved in the offence of Indecent Assault.

GROUND 7: The Learned Trial Judge erred in failing to direct the jury as to the mental element involved in the offence of False Imprisonment.

GROUND 8: The Learned Trial Judge erred in directing the jury that the count of Recklessly Causing Injury involved foresight that an injury 'might' occur.

...

GROUND 11: The guilty verdicts on Counts 4 [indecent assault] and 7 [false imprisonment] are inconsistent with the not guilty verdicts on Counts 5 [rape] and 6 [indecent assault]. [3]

...

GROUND 13: The trial of the Applicant miscarried as a result of an aggregate of errors.

21 With respect to the sentence imposed, the applicant relied on three grounds of appeal:

GROUND 1: The Learned Sentencing Judge erred in sentencing the Applicant on the count of Recklessly Causing Injury on the basis that this offence involved significant blows to a wide range of the Complainant's body.

GROUND 2: The sentence imposed on the count of Recklessly Cause Injury is manifestly excessive.

GROUND 3: The total effective sentence and non-parole period are each manifestly excessive.

22 As it emerged in the course of the hearing of the application for leave to appeal, the three principal grounds upon which the applicant relied with respect to his conviction were that the trial judge had failed to give a propensity warning, that he had misstated the test for recklessness and that, at least with respect to one of the two counts of false imprisonment, he had failed to direct appropriately as to the mental element involved and the failure was material.

23 The applicant attacked the trial judge's charge to the jury on the ground that the trial judge had failed properly to identify the use and admissibility of the applicant's previous acts of violence about which evidence was given.

24 In the course of her cross-examination, Ms Killiby made a series of allegations as to past acts of violence committed by the applicant. The evidence included allegations of the applicant 'beating [her] up'; 'beating [her] every time [she] had a drink with him'; 'assaulting [her] on a weekly basis'; bashing her and giving her black eyes every week. She gave evidence that the applicant had 'hit [her] whilst [she had] been holding the baby', threatened to kill her and smashed a cheeseburger on a child's head. No reliance was placed on these previous acts of violence by the Crown.

25 It was argued that at no stage were the jury given any sort of direction as to the ways (if any) that this evidence could be used or the ways it could not be used. In particular, the jury were not directed that they could not use that evidence 'to reason that the accused is the kind of person likely to commit the offence charged.'[4] In accordance with what was said in R v Vonarx:[5]

The jury should ... be clearly instructed that evidence of other [violent] activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred.

26 The importance of directing a jury as to the limited use to which they can put evidence of uncharged acts is indisputable. As Nettle JA said in R v Fotis:[6]

The need to give the jury directions as to the way in which they may and may not use the evidence of uncharged acts and other conduct is rudimentary. So is the need to give the jury a propensity direction in respect of uncharged acts and other similar conduct ... The authorities are collected and synthesised in the judgment of Callaway JA in R. v. TJB, as follows:

" When evidence of uncharged acts is led in relationship cases, there are certain directions that should, almost invariably, be given to the jury. One of them is that the commission of the offences charged can be proved only by the evidence relating to those offences and not by evidence relating to the uncharged acts. Another is that the jury must not reason that, if the accused engaged in the uncharged acts, he is the kind of person who is likely to have committed the offences charged. ... The position is different with respect to charged acts committed against the same complainant. "

27 A propensity warning has been distinguished from a direction to give separate consideration to each count and the evidence in relation to each count. Continuing with his observations in R v Fotis, Nettle JA said:[7]

Those directions (sometimes called a separate consideration direction) are by and large directed to the different subject of the need for each count to be considered and decided separately from the others. ... [I]n this State it has been said that the usual form of propensity warning is given in terms that the jury are not to reason that because the accused is shown to be guilty in relation to one count he is the kind of person who is likely to have committed other counts. ... There are some cases in which a judge's charge may be so structured as necessarily to convey to the jury that a propensity warning directed to charged acts should be taken by the jury as applying also to uncharged acts.

28 Referring to the particulars of the charge at issue in Fotis, his Honour said:[8]

There is nothing in the charge as I read it to connect the warning about applying propensity reasoning to any of the charged acts with the dangers of applying propensity reasoning to any of the uncharged acts. Indeed to the contrary, the fact that the judge here warned the jury not to apply propensity logic to the charged acts and said nothing about the uncharged acts may have increased the likelihood that the jury would have perceived themselves free to apply propensity logic to the uncharged acts.

29 In the present case, the trial judge clearly gave a 'separate consideration' direction. He also made some important remarks in the course of doing so. He said:

There are a number of counts before you ... You are required to return a verdict in respect of each of those counts. Separate consideration must be given to the counts. Obviously, they all arise out of one alleged series of events, and there is a close relationship between the various counts. But that does not absolve you from the obligation to give separate consideration to each of the counts. You may, in your judgment, return the same verdict in respect of the counts. That is a matter for you. But that does not mean that you simply come to a conclusion about, for example, whether the rape occurred and, therefore, decide to return verdicts of guilty or not guilty across the board. That is not the way it operates at all. You are obliged to give separate consideration to each of the counts and to each of the verdicts you are requited to return. ... You are perfectly entitled to return different verdicts on different counts if that be your judgment about what are the proper verdicts in the case.

30 The Crown relies on the emphasised portion of the extract of the charge above to submit that this 'was, in essence, a warning given against reasoning on a propensity basis between the charged counts'. Furthermore, the Crown, in its written submission, argued that:

According to this warning, once the jury understood (a) that it was illegitimate to reason along propensity lines between counts, but rather, (b) that they had to convict or acquit solely by reference to the evidence referable to each count; there is no basis to assume any risk of illegitimate propensity reasoning concerning evidence that was not referable to any count. The jury were essentially warned against propensity warning and told to convict only on the evidence specifically referable to each count.

31 The problem for the Crown lies in the risk that the submission proves too much. The Crown argues that once a 'separate consideration' direction is given in relation to the evidence on the counts with which an accused has been charged, it must be plain to the jury that the verdict for each count must be based only upon the evidence referable to that count alone. It follows, the Crown would have it, that if there is evidence that is not directly referable to any count it must be clear from the 'separate consideration' direction that it has no place upon which they can base their verdict on any count. But if this were so, there would be no recognition in the cases, as indeed there is in R v TJB,[9] that a propensity warning is of importance in relation to the reasoning that can occur from the evidence of uncharged acts. The 'separate consideration' direction has force in relation to the conduct with which an accused has been charged but it has limited utility with respect to reliance upon uncharged acts.

32 The Crown acknowledged at the hearing of the appeal that the trial judge's direction to the jury not to reason from guilt on one count to an assumption of guilt 'across the board' was insufficient in itself to amount to a warning against reasoning on a propensity basis concerning evidence that was not referable to any count. Although the Crown accepted that such a direction was 'almost invariably' necessary when there was evidence of uncharged acts, it argued that, in the circumstances of the case, no such direction was necessary.

33 I do not agree. The risk that the jury in the circumstances of this case might have engaged in impermissible propensity reasoning in relation to uncharged acts ought to have been specifically addressed by the giving of a clear propensity warning. This was not done.

34 No relevant direction was sought by defence counsel at trial. In this context, the Crown relied on the importance placed by McHugh J in Doggett v The Queen[10] on the manner in which a trial is conducted:[11]

The manner in which a trial is conducted, and in which the issues are shaped, especially where ... an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formalities. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.

35 The Crown pointed to the fact that here the evidence of uncharged acts of violence was elicited by defence counsel and no complaint was made about the risk of impermissible propensity reasoning:

[N]o risk of the nature complained of was perceived by experienced defence counsel who was steeped in the atmosphere of the trial. Defence counsel did not ... seek a discharge. Nor did he seek a direction of the kind now sought. Indeed, defence counsel effectively adduced the impugned evidence on the basis that he apparently saw some advantage in doing so. It is difficult to see how any complaint can be made about that now.

36 It remains the case that there was no direction by the trial judge to the jury to avoid the impermissible propensity reasoning that the occurrence of uncharged acts of violence was proof of the applicant's guilt. This entailed a serious risk of injustice. As Gaudron J said in BRS v The Queen:[12]

[I]t is sufficient to note that there is a duty on the part of a trial judge to give proper directions if there is a serious risk of injustice, whether or not those directions are sought.

37 Once the evidence of other instances of violent conduct was elicited from the complainant, in the circumstances of the case, the trial judge ought to have given an appropriate propensity warning. His failure to do so was an error. It was not remedied by the 'separate consideration' direction.

38 Nor was the failure to give an appropriate propensity warning remedied by what was said in the closing addresses by counsel. The parties were given an opportunity, after the hearing of the application for leave to appeal, to file additional written submissions on the closing addresses and the relevance, if any, they bore to the need for a propensity warning.

39 The applicant submitted that the closing addresses made it more apparent that this was not one of the exceptional cases where a failure to give a propensity warning could be justified.[13] This was not a case where there had been a request by defence counsel that such a direction not be given. This was not a case where by giving such a direction the trial judge may have highlighted an area of evidence that had been deliberately avoided by defence counsel in his final address. Nor was this a case where it could be said that there was no real risk of the jury engaging in an impermissible path of reasoning by resort to the evidence of uncharged acts of violence. Indeed, defence counsel had appeared to identify just such a risk and addressed the jury in this regard when he said, in referring to the applicant:

He's not charged with any acts of violence that have occurred in the past. He's only charged with things that occurred on 27, 28 and 29 October, that's all.

Now, you may think, "Well, look, there's obviously been violence and assaults." He's not charged with that. He's only charged with what happened. You, of course, may think, "Well, can you? I wonder if you can." No, you can't. You can't say just because it might have happened, and it's not proven that it did happen, but just she says she's been assaulted in the past, that doesn't mean that it happened on the 27th, 28th and 29th. It might have happened before - it certainly didn't happen afterwards - but we're only concerned with the events of this particular time. Don't let these other things - they're extraneous, and don't let them sway you.

40 The defence counsel's address identified the relevant risk and encouraged the avoidance of it. While it might be argued that this obviated the need for any direction by the trial judge, this would sit uneasily with the reliance placed by defence counsel in his address on 'the nature of the relationship' between the applicant and Ms Killiby, the 'type of people they were' and the invitation to judge them 'according to their behaviour, according to the way they would normally behave'. There was evidence that the nature of the relationship was stormy and had included past acts of violence; the defence counsel said that 'It's been a fragile and perhaps a violent relationship as long as it existed'. In addition, the applicant in his record of interview had claimed that the relationship had involved prior incidents of consensual sexual activity while Ms Killiby was tied up, activity which Ms Killiby was cross-examined about and which she emphatically denied.

41 In those circumstances, it could not be concluded that the final addresses revealed an identifiable forensic approach to the evidence of the applicant's past acts of violence that could have relieved the trial judge of his obligation to direct the jury appropriately to avoid impermissible propensity reasoning. [14]

43 It was conceded by the Crown at the hearing of the application for leave to appeal that if the trial judge was in error in failing to give a propensity warning in the circumstances of the case, the error was of a type that could not be remedied by the proviso. The error would be too fundamental to the verdict obtained; it could not be confidently concluded that there had been no substantial miscarriage of justice. I agree.

44 It follows that the appeal against conviction ought be allowed. However, as the other grounds of appeal were fully argued, I shall consider each ground in turn.

45 In directing the jury as to the mental element involved in the offence of recklessly causing injury, the trial judge characterised the foresight that was necessary to constitute the offence in terms of injury that 'might' be caused. In his charge, the trial judge first considered the elements of the offence of intentionally causing injury (of which the applicant was acquitted) and then said:

On the other hand, if you are not satisfied beyond reasonable doubt that the act occurred that the injury was intended by the accused; then, if you are satisfied, however, that he foresaw that injury might be suffered by her as a result of his kicking and nevertheless elected to proceed and continue with the act of kicking Ms Killiby when she was in that position, then you ought to be satisfied beyond doubt that he did so recklessly. In which case you would say not guilty on Count 9, but guilty on Count [10], being the difference between the two ... that you were not satisfied that he caused that injury, whatever the injuries were, intentionally, but it is recklessly in a way that I have defined it.

46 The applicant argued that the trial judge, in employing the word 'might' in the direction on the requisite mental element for the offence of recklessly causing injury fell into error as he ought to have directed the jury that it was necessary for them to be satisfied beyond reasonable doubt that the applicant foresaw that injury would 'probably' be caused. The applicant's characterisation of the requisite mental element is supported by the observations made by Hayne JA and Crockett AJA in R v Campbell:[15]

With regard to the count of recklessly causing serious injury, the trial judge directed the jury that to be guilty of that offence the applicant must have fired the gun "knowing that serious injury will probably occur ...". The applicant agreed that this was a correct direction. However, on the following day when near the completion of his charge the judge recapitulated the relevant directions in law which he had given the jury on the previous day. Unfortunately, on this occasion he said in relation to count 3 that if the applicant fired the gun if guilt were to be established he must be shown to have done so "knowing that serious injury might occur and taking the risk of doing so".

...

Counsel did not take exception to the charge. However, the misdirection at law was a "fundamental irregularity". Accordingly, the proviso to s 568(1) of the Crimes Act 1958 can have no application.

47 The applicant emphasised that this Court in Campbell had allowed the appeal even where the trial judge had given the correct charge first and subsequently erred and that, by comparison, the failure to give the correct charge even once, as here, must be seen as a more egregious error.

48 The Crown responded by arguing that in order for the jury to have convicted the applicant of Count 10, they must essentially have accepted Ms Killiby's version of events and been satisfied of the circumstances of which she complained, including identity, causation and injury; in particular they must have been satisfied that the applicant kicked Ms Killiby in the head. It was argued to be fanciful to suggest that the jury would not have been satisfied beyond reasonable doubt that the applicant thought his conduct would cause injury that was other than, say, superficial or trifling, and that met the legislative definition of 'injury' under s 15 of the Crimes Act 1958 which included a threshold as low as mere pain. The Crown submitted:

Thus, while the judge's reference to "might" was not in accordance with authority and was thus in error (see, for instance, Ignatova v R [2010] VSCA 263, R v Crabbe [1985] HCA 22; (1985) 156 CLR 464, R v Campbell [1977] 2 VR 585 & R v Nuri [1990] VicRp 55; [1990] VR 641), it is an error of no consequence: see, for instance, Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 at 212 [23].

49 I do not agree. The recognition by this Court in R v Campbell not only of the need for precision in the direction to avoid error, but also the 'fundamental irregularity' in a charge that imports a notion of what an offender 'might' foresee as opposed to foreseeing what is 'probable', stands against the contention by the Crown. Against that background, one could not conclude that the misdirection was not material.

51 Ground 7 drew on the circumstances surrounding the first alleged false imprisonment (Count 7). It was alleged that a rape had occurred, followed immediately by an indecent assault by urination, of which, on both counts, the applicant was acquitted. The false imprisonment was alleged to have occurred some short time after that conduct in circumstances in which the applicant had cuddled up to Ms Killiby and said 'sorry'. These were circumstances in which Ms Killiby, whether out of fear or from instincts of self-preservation, did not tell the applicant that she wanted to leave.

52 It was incumbent on the trial judge, in those circumstances, to ensure that the jury, if it was to deliver a verdict of guilt that was unimpeachable, was directed that the offence of false imprisonment contained a mental element, namely, that a defendant must have intentionally deprived a victim of his or her freedom; that is, it was necessary for the trial judge to ensure that the jury understood that 'false imprisonment was constituted by the intentional and unlawful restraint of the liberty of another person against that person's will'.[16]

53 Here, the trial judge told the jury that the offence of false imprisonment:

constitutes in itself an assault, so it's a form of to deprive someone, to prevent them going, or to keep them somewhere, is in itself an assault because it involves the threat of force. So no specific separate assault is required. If false imprisonment as I defined it is made out, then it is made out, although it is a reasonable question given the terminology of the charge. That is all that is meant by that, because it is assumed that the element of coercion involved must necessarily include the threat of force and therefore it is an assault, but not as a separate element in the charge.

54 As the trial judge chose to explain to the jury the elements of the offence of false imprisonment by reference to an assault, the Crown relied on the trial judge's earlier direction as to what constitutes an assault to supply the missing element of intentionality. The trial judge had said:

Now, an assault is pretty simply defined. Any application of force or threat of force can constitute an assault, so long as it is intentional and unlawful.

55 The difficulty that the Crown's submission faced was that the alleged false imprisonment occurred in a context in which the evidence from Ms Killiby was that the applicant was 'cuddling up' to her, and saying 'sorry' and she did not tell the applicant that she wanted to leave. The circumstances called out for a direction that for the offence to be made out the applicant must have intentionally restrained Ms Killiby against her will. The absence of the relevant direction was an error.

57 It was also conceded by the Crown at the hearing of the application for leave to appeal that if Ground 7 was made out, that error could not be remedied by the proviso.

58 Ground 2 was a complaint that the jury had not been given any direction as to the limited use that could be made of the applicant's plea of guilty to the assault on Wednesday 29 October involving the use of the pole (Count 11). The submission was that the separate consideration direction, extracted above, was not sufficient, in the circumstances of the case, in respect of a plea of guilty to an offence involving violence, to guard against the danger of impermissible propensity reasoning. As this ground related to charged acts of violence, and not uncharged acts, if this complaint stood alone, the separate consideration direction might have appeared sufficient. However, in the context of the more general complaint, which I have already upheld, arising from the absence of a propensity warning, this ground should also be upheld.

59 Grounds 5 and 6 arose from the failure of the trial judge to direct the jury as to the consent or lack of consent by Ms Killiby to the conduct that constituted, respectively, the assault comprising the tying up of Ms Killiby's hands and feet, the assault comprising the incident involving the ripping of the clothes, and the indecent assault comprising the rubbing by the applicant of his penis over Ms Killiby's genital area. It was argued that given the evidence in the record of interview of past consensual tying up (denied by Ms Killiby), and evidence that clothes had been ripped before, the trial judge's failure to direct the jury on the issue of consent, and the applicant's belief as to Ms Killiby's consent, was an error.

60 This was argued to be particularly significant in relation to the charge of indecent assault, as this assault was alleged to have occurred immediately before the conduct that constituted the alleged rape in relation to which the trial judge gave a direction on consent and on which the applicant was acquitted. The fact that the alleged indecent assault was the immediate forerunner to the alleged rape indicated that, if the jury were to be directed on consent in relation to the alleged rape (as they were), they should also have been so directed in relation to the indecent assault.

61 I agree. The circumstances of the case, most particularly the proximity of the two events, called for a direction as to whether the applicant was aware that Ms Killiby was not or might not be consenting, or did not give any thought as to whether she was not or might not be consenting, in relation to the conduct that constituted the indecent assault. The failure to give such a direction may well have had a direct bearing on the ultimate verdict on this count.

62 However, I do not consider that the trial judge was in error in failing to give a direction on consent in relation to the common assault charges. The defence was that the acts, facts and circumstances constituting the assaults in relation to which the applicant was found guilty did not occur. The defence, as put to Ms Killiby in cross-examination, and as expressed by the applicant in his record of interview, was that the assaults did not take place, not that there had been consent to them. In cross-examination, Ms Killiby was asked:

I put it to you that you weren't tied up at all, that's something else that you've made up, would you agree with me? No.

63 There was no suggestion in argument or in the evidence led at trial that Ms Killiby consented to the conduct that constituted the alleged assaults, or that the applicant believed that she was consenting. In my opinion, the absence of any direction on consent in relation to the assaults alleged in Counts 1 and 3 was not in error, as consent and belief in consent was, in this context, not in issue and the trial judge was required to direct the jury only on so much of the law as was necessary to deal with the real issues raised on the evidence in the case. [17]

64 Ground 11 pointed to what were alleged to be inconsistent verdicts between the acquittal on the rape and indecent assault charges (the latter comprising the urination) and the guilty verdicts arrived at on the indecent assault charge (comprising the genital rubbing immediately prior to the sexual penetration) and the false imprisonment (alleged to occur when the applicant was in bed with Ms Killiby). Suffice it to say that, while one cannot know the reasons for the verdicts the jury delivered, it is possible that the jury entertained a reasonable doubt about the charge of rape in circumstances in which the complainant had delayed in complaining about being raped, there was evidence from Ms Killiby's brother, albeit rejected by Ms Killiby, that she had told him that she had not been raped and she admitted that the motive she had initially attributed to the applicant for the rape, namely, that he had discovered that she was going to take the children and leave him, was not true.

65 Furthermore, the jury may have acquitted the applicant of the indecent assault offence based on his urination because they may not have accepted the truth of the evidence that the urination occurred given Ms Killiby did not shower immediately after the alleged incident and she appeared to have delayed in complaining about the incident.

66 While the jury may have had little justification in drawing adverse inferences from the delay and the other evidence, the possibility that this is the way they reasoned cannot be discounted and it would be one way in which the verdicts would be consistent with each other, as a matter of logic and reasonableness.[18] I reject Ground 11.

67 The applicant submitted that even if any single error identified was insufficient to cause the trial to miscarry, the aggregation of the errors collectively caused the trial to miscarry.

68 I have already expressed the opinion that the failure to give a propensity warning, in the circumstances of the case, was an error that was sufficient in itself to cause the trial to miscarry. The same is true of the 'fundamental irregularity' involved in the misdescription of the foresight necessary for the offence of recklessly causing injury, as stated in R v Campbell,[19] and of the failure to give a direction on consent with respect to the offence of false imprisonment in the aftermath of the alleged rape on which the applicant was acquitted. Moreover, the aggregation of each of these errors, together with the error in the failure to give a direction on consent with respect to the alleged indecent assault that occurred immediately prior to the alleged rape, in my opinion, collectively caused the trial to miscarry and was productive of a substantial miscarriage of justice.

69 In the light of these conclusions, there is no need to consider the basis for the application for leave against sentence.

70 I would allow the application for leave to appeal and allow the appeal, set aside the conviction and order a re-trial.

[1] As to whether bruising and a broken tooth can constitute serious injury in this context, see R v Welsh & Flynn (unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, King and Tadgell JJ, 16 October 1987).

[2] Ground 5 had previously referred to the 'mental' element involved in the offence of common assault. The applicant sought leave to amend Ground 5 to reflect the terms set out above. Nothing turns on this. The applicant also sought leave with respect to a similar amendment to Ground 6.

[3] The applicant further sought leave to amend Ground 11 which initially had alleged an inconsistency between a greater range of verdicts.

[4] R v Grech [1997] 2 VR 609, 612, quoting from R v Vonarx [1993] 3 VR 618, 625 [23].

[6] [2004] VSCA 212, [5] (original emphasis; footnotes omitted).

[9] [1998] 4 VR 621, 633.

[12] [1997] HCA 47; (1997) 191 CLR 275, 302.

[13] R v Fotis [2004] VSCA 212, [10].

[14] BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 293-5, 301-3, 307-10, 326-32.

[15] [1997] 2 VR 585, 592-3 (emphasis in original).

[16] R v Huynh [2006] VSCA 213; (2006) 165 A Crim R 586, 601 [83] (Coldrey AJA, referring to R v Vollmer [1996] VicRp 9; [1996] 1 VR 95, 175-88).

[17] Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234, 256-8 [75] - [79].

[18] See MacKenzie v The Queen (1996) 190 CLR 348, 365-8.

[19] [1997] 2 VR 585, 593.