R v Aden & Toulle [2002] VSCA 79

78. After they had had their drinks the complainant raised her legs and started touching Aden everywhere, including possibly around his zip. Aden then told Toulle to go out of the room. Toulle took his drink and went into the empty room. The complainant was still clothed. He estimated that he spent five to ten minutes in the other room. He came back when he heard talk and movement and the toilet flushing. When he returned to the loungeroom Aden was clothed, but the complainant was naked.

81. It was then Toulle's turn. He told Aden to leave the room. He and the complainant had sexual intercourse on the mattress. He unbuttoned his clothing and she put a condom on him. He lay on top of her and they had intercourse. It took possibly five or seven minutes. After it was finished he washed and dressed. There was no other form of sexual activity between them. He denied that he and Aden had had sexual activity with the complainant at the same time. He denied that he had had oral sex with the complainant or had digitally penetrated her vagina. In cross-examination he said that it was contrary to his culture to drink alcohol or consort with prostitutes.

84. Afterwards they were finishing off their drinks. Everybody was peaceful. The complainant was making and receiving calls on her mobile telephone. Towards the very end she asked if they could drop her off in St. Kilda. Toulle asked Aden, but he said that he had drunk too much. Toulle relayed this to the complainant. She then started to change (in mood) in the sense that she was moving in the house, she was going to the toilet and coming back. Then she went to the toilet and stayed very long. She took her purse to the toilet. She then came out and stood towards the entrance to the loungeroom. She appeared very angry and said, "If you don't give me money I will create some problem for you". She then turned back, opened the door, slammed it and went away. Toulle had no opportunity to respond to her. He did not know what she meant by trouble. He thought that she might have wanted to get them killed. When she left she was naked. She had only her purse. In cross-examination he said that Aden was wrong in saying that there had been no disturbance at the flat, but they had done nothing by way of withholding money or attempting to steal her property which might have provoked her anger.

87. Both of them were shocked. Aden left first, followed by Toulle. They remained only to put their shoes on. Toulle said that he left because he could not sit there and wait for someone who had left threatening him. He used the stairs because he was concerned about the threat. He took a taxi home, leaving his car at the flats. (He had driven and parked there the previous evening and gone to Farah's flat, where he had met Aden.) In re-examination he said that he had been so shocked that he had not remembered about the car.

90. He said that at no time in the flat did the complainant say to him that she wanted to leave. He did not stop her leaving. He did not follow her into the toilet. In re-examination he stated that he could not remember an earlier occasion when he had drunk so much as he did that night.

94. It is now possible to consider the grounds of proposed appeal. Mr. Selimi for the applicants described ground 1, which invokes Longman v. The Queen[1], as the principal ground. The complaint, as recorded in the outline of argument, was that the trial judge did not give the jury a "full Longman warning", namely, that in the circumstances of the case it would be dangerous to convict on the unconfirmed testimony of the complainant unless, having scrutinised that testimony with great care, the jury were fully convinced of its truth and accuracy. Nor indeed, it was complained, was any warning given in relation to the dangers of convicting either accused upon the complainant's evidence, which was variously described as uncorroborated, contradictory, unsatisfactory and unreliable. Thereby, it was said, there was a serious risk of a miscarriage of justice. It was submitted orally that the court should accept that an appropriate warning was required here "to avoid a perceptible risk of miscarriage of justice"[2]. That being so, the failure to take exception or to seek earlier a Longman warning or a variant of it was no bar to the upholding of this ground. Counsel accepted that the wording of the warning might be a matter of debate, though he strongly urged that the warning should refer to the "danger" of convicting on the complainant's evidence and require the jury to "scrutinise" it. It was submitted, correctly, that s.61 of the Crimes Act 1958 did not stand in the way of the giving of the direction sought in an appropriate case. Borrowing again the language of Miletic[3], counsel submitted that the nature and quality of the complainant's evidence, together with other factors, necessitated the warning propounded. By way of elaboration he relied on the factors enumerated in the outline of argument on ground 3, including the schedule of inconsistencies, to which I shall refer in due course, together with the claimed inconsistencies of the complainant's evidence with the medical evidence, Barnes' evidence and the applicants' evidence, which was said to be untarnished. The complainant's version was said to be improbable. Particular reliance was placed upon statements by her that the consensual sexual activity, for which there was a one hour booking, began about 6 a.m. and that the non-consensual activity lasted two hours, which was said to make her version completely irreconcilable with Barnes' evidence that he left his flat just after 7 a.m. Because she was wrong as regards time one should doubt her recollection of events, he submitted. Counsel relied on the cumulative effect of all the inconsistencies.

97. In my judgment, for the reasons which follow, a Longman warning, whether "full" or "partial", was not required in this case. I proceed on the footing that there was no confirmation or support, or in the old terminology corroboration, of the complainant's evidence, without expressing any view on whether the applicants' admitted hasty departure from the flat or the distressed condition in which the applicant met Barnes[4] was capable of constituting confirmation or support. As the judgments in Longman and Miletic show, whether a warning of the type under discussion is required depends on the circumstances of the particular case[5]. In the circumstances of this case there was not a perceptible risk of miscarriage of justice necessitating the direction in question. There was, in my opinion, no "identifiable factor or group of factors calling for [the] direction to be given"[6]. Whilst inconsistencies have been identified, they were not of a kind calling for the direction, for they were well within the ability of the jury to assess for themselves in the light of their own experience and with the benefit of counsel's addresses: Miletic[7]. In this regard they stand in contrast to the delay in prosecuting the appellant in Longman and the non-specific nature of the delayed complaints made in Miletic, the full significance of each of which would have been more apparent to lawyers than to a lay jury, with the result that a warning was in each of those cases held necessary. This was a case, of course, where there was not only no delay, but also an immediate complaint. The assessing of the significance of inconsistencies in evidence and the dealing with conflicts between the evidence of different witnesses are, as has been said more than once, the daily "stuff of juries"[8]. The specific suggestion that, for timing reasons, the complainant's version was improbable cannot be accepted. First, Barnes' evidence was not as straightforward as suggested: it was open to the jury to prefer his later statement in chief that he left his flat between 7 and 8 o'clock and to think the later end of that range more likely. Secondly, if her version was in essence true, the complainant had been traumatised. Thirdly, leaving aside the bank withdrawal and the purchase of whisky, all the times given by the complainant, Barnes, and the applicants were, as Vincent, J.A. pointed out during argument, simply estimates. One is left, then, with distortions or possible distortions as to time, which, as Phillips, J.A. stated in argument, are typical matters for a jury to assess. Importantly and finally, it is appropriate in the circumstances of this case to infer from counsel's not having taken an exception or sought the direction in question that the direction was not required: Miletic[9]; R. v. Wright[10].

100. Notwithstanding what has been said in the last paragraph, it is necessary to consider whether certain cases on which Mr. Selimi relied required the direction now sought to be given. In the forefront was Robinson v. The Queen[11]. Counsel relied on the passage from the judgment of Lee, J. in R. v. Murray[12] that was set out by the High Court[13] with apparent approval. Only two sentences from the passage call for comment. In one Lee, J., by a parenthetic remark, indicated that in all cases of serious crime judges stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. Here, the trial judge did that[14]. Lee, J. continued, "In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in ...". But I do not take his Honour, or the High Court, to have meant that what is customary is in fact obligatory, and I think that the last sentence in the passage from R. v. Murray, which I do not trouble to set out, shows this to be the case. There is nothing else in Robinson which would support the conclusion contended here for the applicants. The circumstances leading the High Court to hold in that case that a Longman direction was required were quite different from those here. They included the age of the complainant at the time of the alleged offences; the long period that elapsed before complaint, which, importantly, in turn meant that it was impossible for a medical examination to verify or falsify the complaint; and some possible suggestibility on the part of the complainant, besides inconsistency in some aspects of the complainant's evidence as to whether penetration occurred and other "special features" not present here. At one stage Mr. Selimi submitted that in light of Robinson, even if there were no unusual circumstances, trial judges should give the warning in question, but he immediately resiled from that because, as he acknowledged, it would be contrary to s.61.[15] In reply Mr. Selimi cited part of the reasons of McHugh, J. in Longman[16]. His Honour there said:

"If, however, the evidence discloses any circumstance which suggests that the evidence of the complainant may be unreliable, the trial judge has a duty to make the jury aware of the dangers concerning that person's evidence."

The words I have italicised show the potential breadth of the sentence. But the sentence turns on the word "unreliable". When the sentence is read in context, I do not understand the word to cover mere inconsistencies or unusual features. In any event the sentence is not part of the ratio decidendi of the case. Reliance was also placed on what I said, with the concurrence of Phillips, C.J. and Kenny, J.A., in R. v. DSJ[17]. But those remarks must be read against the facts of the case, which included the young age of the complainant at the time of the offences and the attitude of hostility or resentment on her part which might have affected her veracity or accuracy. Moreover, the charge was in that case held sufficient. There is nothing in Armitage v. The Queen[18], R. v. Sung Hwan Bang[19] or Crampton v. The Queen[20] which warrants the conclusion contended for the applicants. On the other hand, R. v. PJJ[21] is against them.

105. It was not argued that the complainant was a member of a class of potentially unreliable witnesses, such as prison informers, whose unsupported evidence normally attracts warnings nor, in reliance on Director of Public Prosecutions v. Faure[22], that he was otherwise potentially unreliable, so that a warning was required. Actual unreliability was relied on, as appears above. Nevertheless, Bromley v. The Queen[23] was cited. Whilst that case was, of course, relied on in Longman for the notion of the need in the interests of justice to warn of the dangers of convicting on unsupported evidence, the facts of the present case do not fall within the particular principle considered in Bromley.

109. To read the charge in full is to see that it was balanced. It was indeed a very fair charge. The summary of the evidence of the applicants occupies nearly as many pages of transcript as the summary of all the Crown witnesses and the treatment of the arguments of defence counsel was longer than that of the prosecutor's arguments. The inconsistencies relied upon were set out in some detail.

112. The foregoing was accepted, for, despite the width of the ground, the imbalance complained of in argument was limited to the failure to put the defence cases on the issue of consent, besides the failure to give a Longman warning. The "issue of consent" was treated in argument as embracing both absence of consent and mens rea, that is, awareness on the part of each applicant that the complainant was not consenting or might not be consenting. It was submitted for the applicants that the judge erroneously failed to leave the issue of consent to the jury. They ought, it was said, to have been directed that, should they be satisfied that the alleged physical acts occurred notwithstanding the applicants' protestations to the contrary, they should then proceed to consider the issue of consent. It was submitted that the direction constituted by the first two sentences of the third paragraph of the first passage next set out in these reasons had the tendency to mislead the jury into thinking that they could automatically convict each applicant if they found that the alleged acts took place. The Defence Reply to the Prosecution Opening filed pursuant to s.7 of the Crimes (Criminal Trials) Act 1999 had been completely forgotten. It was further complained that his Honour had given no direction whatsoever as to the necessity of finding that the alleged offences were committed with the requisite mens rea. At no stage had either applicant conceded that, if the alleged acts occurred, they occurred with the necessary mens rea. On the evidence of the complainant, alternatively of the applicants, it was open to the jury, it was submitted orally, not to be satisfied beyond reasonable doubt that the applicants were aware that the complainant was not consenting or might not be consenting and so an issue arose. The judge was under an obligation to put the defence case fairly and properly if it was open on the evidence.

115. In dealing with the elements of the various offences charged his Honour told the jury in the case of indecent assault that there was no suggestion of lawful justification. "The defence is it simply did not happen". In the case of rape, he stated that the three essential elements were the act of sexual penetration; lack of consent on the part of the complainant; and the guilty mind of the accused. After explaining the first of those elements, his Honour said:

"The penetration must be without consent. In this case there is no suggestion of consent. The defence is it simply did not happen. Thirdly, the Crown must prove the guilty mind of the accused - that is to say that whichever one you are considering - intended to commit the crime of rape in that he was aware at the time of penetration that the woman was not consenting or realised she might not be consenting and went ahead just the same. In this case I repeat, there is no suggestion of consent or belief in consent in respect of the acts charged. The defence is that none of them took place. The defence is that all that occurred was consensual sexual intercourse by each accused, in the absence of the other, that had been bought and paid for. It is not for the defence to prove that scenario, it is for the Crown to rebut it."

After completing his directions as to the elements of the offences and giving directions as to concert, his Honour said to the jury:

"Now what of the issues arising in this case? It seems to me ... that they are these: ... secondly, did the sexual acts complained of by her following that detention or any of those acts occur, and if so**,** were the two accused acting in concert in the case of all or any of those acts? The defence case is that those acts simply did not occur but, as I have said before, they were simply two acts, one each, of consensual vaginal intercourse that was paid for and consented to. And I repeat, it is not for the defence to prove that, it is for the Crown to negate it."

121. In those passages his Honour correctly told the jury all the elements of the offence of rape (though he did not mention the mens rea of indecent assault, but no complaint was made about this). He made it clear, however, that absence of consent and the existence of mens rea were not live issues "in respect of the acts charged". Now in this case the jury had before them two versions of what occurred in the flat. On the one hand, the complainant said that she supplied consensually the sexual services agreed on but, after that, she was detained against her will and the several sexual acts charged were committed upon her without her consent and in such circumstances that it must have been obvious to the applicants that she was not consenting. On the other hand, the applicants said that the only sexual acts that occurred were two acts of penile vaginal penetration, one by each of them, and that those acts took place in accordance with the agreement the three of them had made and accordingly, and in fact, with the consent of the complainant. In those circumstances, in my opinion, not only was there on the way the trial had proceeded no live issue, but there was no argument open[24], as to absence of consent and the existence of mens rea on the part of the applicants in respect of the acts charged. For, if the jury found that the applicants detained the complainant against her will after performance by them with the complainant's consent of the acts contracted for and found that the sexual acts charged occurred, they would inevitably conclude, as Vincent, J.A. pointed out during argument, that the complainant did not consent to those acts and that each applicant was aware of that or aware at least that she might not be consenting. Not only was no case of consent or absence of mens rea run by either applicant but, significantly, neither defence counsel asked the judge, in the absence of the jury or at all, to direct the jury that those matters were live issues and neither took objection to his Honour's charge on this score. Counsel's failure to seek the direction or take the exception strongly suggests that they saw no unfairness to their clients in this aspect of the charge and tends to confirm the conclusion to which I have come. In short, then, since the absence of consent and the existence of mens rea were not open on the evidence in relation to the acts charged, there was no departure from "the established rule that it is the judge's duty to put the defence fairly to the jury"[25].

124. Nor, in my view, can it be said that his Honour withdrew the elements of absence of consent and the existence of mens rea from the jury, as was held to have occurred, impermissibly, in Griffiths v. The Queen[26], for instance. Rather, his Honour directed the jury as to the elements[27] and then told them that there was no issue as to certain elements. Nor, it should be observed, was it contended before us that his Honour had withdrawn elements from the jury and Griffiths and like cases were not cited amongst the many that were. The contention was that his Honour had failed to put defences. He certainly did not have to give the jury particular directions as to those elements.[28] If, contrary to my view, his Honour is to be taken to have withdrawn the elements from the jury, this is, I consider, a clear case for the application of the proviso in that no substantial miscarriage of justice actually occurred because the applicants did not by reason of the supposed error lose a chance of acquittal which was fairly open.

128. Since this ground was put, in part at least, as a particular of ground 3, I take it next. It was submitted that the verdicts on counts 10 to 12 suggested that the jury were not prepared to accept the complainant's evidence on those counts. That was a factor which should assist this Court to the view that their verdicts on counts 1 to 9 inclusive were unsafe and unsatisfactory: the verdicts of acquittal demonstrated that the complainant's credibility or veracity had been so undermined by inconsistencies and improbabilities in her evidence that the Court should conclude that the jury ought to have entertained a reasonable doubt about the applicant's guilt on counts 1 to 9 inclusive.

131. The inconsistency asserted here is factual. Where such an inconsistency is said to arise between verdicts on different counts of the one presentment the test is one of logic and reasonableness. The applicants must satisfy this court that the two groups of verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v. The Queen[29]. Nevertheless courts have repeatedly expressed themselves as reluctant to conclude that verdicts are inconsistent in this sense. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted: MacKenzie[30]. In my judgment, this is not a case where the verdicts of not guilty demonstrate that the complainant's credibility or veracity had been undermined as was submitted for the applicants. For a start, the applicants had been found guilty beyond reasonable doubt on nine counts and were acquitted on three only. The case is quite unlike R. v. JGVR[31] on which Mr. Selimi placed reliance. In that case there had been verdicts of not guilty on all but one of the more than 13 counts. As pointed out by Winneke, P. and Charles, J.A. in R. v. J (No.2)[32], the jury's verdicts of acquittal do not amount to a positive finding that the events as recounted by the complainant did not occur, but show no more than that the jury was not satisfied to the requisite standard that the acts alleged in those counts occurred. Accordingly, it does not follow from the bare fact of acquittal on those counts that the verdicts on the other counts are insupportable. The judge had instructed the jury to consider separately the Crown case against each accused in respect of each count and it is open to think that the jury simply followed that instruction and applied to each count the requirement that all the ingredients must be proved beyond reasonable doubt: MacKenzie[33]. Moreover, it does not follow that the jury treated the complainant as unworthy of belief or untruthful on the counts on which they acquitted. For allowance must always be made for the possibility that the jury, which has convicted on a number of counts and acquitted on others, has accepted the complainant as truthful but has admitted the possibility of faulty recollection in some cases: R. v. J[34]. Secondly, the not guilty verdicts on counts 11 and 12 are readily explicable and that on count 10 is also explicable even if not quite so obviously. In the case of count 11, the complainant had made no mention of anal penetration to Dr. Gall, she had given different versions as to which of the applicants was the perpetrator and, even on her version, the penetration was for a very short distance. One or more of those factors might well have caused the jury to be doubtful. Likewise, in the case of count 12 the complainant had made an earlier inconsistent statement identifying Toulle as the perpetrator and had not mentioned the attempt to Dr. Gall. Count 10, like counts 11 and 12, was said to have occurred after Toulle returned to the room from, the complainant thought, the toilet. Toulle's absence forms a natural break in the sequence of events and the jury may have been influenced in their consideration of count 10 by their doubts about the other two counts in this group and particularly the temporally close count 11. Moreover, the complainant's allegations, whilst clearly amounting, if accepted, to indecent assault, were fairly general. It may also be that the jury, having decided to convict on nine counts and having doubts about counts 11 and 12, concluded that justice was sufficiently met by convictions on the first nine counts and so decided to take a merciful view of the facts upon count 10, as they were entitled to do: MacKenzie[35], citing R. v. Kirkman[36].

134. For the foregoing reasons I am quite unpersuaded that the different verdicts represent "an affront to logic and commonsense"[37] which suggests a compromise of the performance of the jury's duty, confusion in their minds, a misunderstanding of their function or lack of clarity in the charge. The two groups of verdicts can, in my view, well stand together.

138. In support of this ground Mr. Selimi adopted what he had said under ground 1 as to the inconsistencies, contradictions and improbabilities in the complainant's evidence and submitted that the jury, properly instructed, should have entertained a reasonable doubt by reason of the nature and quality of the applicant's evidence. Counsel adopted the list of matters upon which reliance was placed in his written outline. They read:

"(i) the complainant's evidence was uncorroborated; unsupported by other evidence; contained discrepancies, displayed inadequacies, was tainted and otherwise lacked probative force; (ii) the complainant's version of events was highly improbable, particularly in view of the fact that the complainant was allowed to take a telephone call during the alleged act of rape and did not make any complaint of rape to the caller; (iii) the complainant had access to her mobile phone at all material times and did not call the police; (iv) the complainant did not suffer any physical injuries which would have been consistent with the alleged acts; no medical evidence was called to support her allegations; (iv)[bis] the complainant was operating illegally as a street prostitute and gave inconsistent, contradictory and highly improbable evidence; (v) the complainant had given the applicants a note bearing her telephone number which is entirely inconsistent with the suggestion of non-consensual intercourse (see exhibit 2); (vi) the complainant was a heroin addict. The relevance of her heroin addiction was downplayed by the learned trial judge; (vii) the complainant had a number of criminal convictions[38]; (viii) the complainant admitted making inconsistent statements at committal; (ix) while the alleged rape was said to have been taking place, the complainant did not tell the applicants to stop, nor did she cry out for help, although Mr. Farah was in the adjoining room and heard nothing even though he was a light sleeper; (x) there were numerous inconsistencies on important matters in the complainant's evidence as illustrated in the attached Schedule A; (xi) the complainant's evidence strained credulity and lacked any credibility whatsoever; (xii) the learned trial judge omitted to bring the foregoing matters to the jury's attention and failed to caution the jury that it should carefully scrutinize the complainant's evidence before accepting it over the sworn evidence of the applicants; (xiii) no DNA or other expert evidence was called to analyse the content of the condoms with a view to assessing the veracity of the complainant's evidence; (xiv) the evidence of the applicants was untarnished by cross-examination and was consistent with their innocence; nor were either of the applicants seriously challenged in relation to the content of their evidence in chief in breach of the rule in Brown v. Dunn; (xv) the evidence of Mr. Farah was consistent with the applicants' innocence; the failure to call evidence from adjoining neighbours was also consistent with the inference that such evidence would not have assisted the Crown."

Schedule A, referred to in Item (x), listed inconsistencies arising out of cross-examination by each of the defence counsel. Most of them, and certainly most of the more important of them, have already been mentioned in the recitation of the evidence earlier. I do not trouble to set out the rest.

143. The trial judge's reports to this Court are relevant to this ground. In the case of each applicant his Honour reported that he did not think he could usefully add to what appears in the transcript "save to say, for what it may be worth, that I was and remain, surprised by the jury verdicts".

146. In Jones v. The Queen[39] the majority of the High Court said that the test formulated by the majority in M v. The Queen[40] for determining whether a verdict was unsafe or unsatisfactory, or (more properly nowadays) unreasonable or unable to be supported having regard to the evidence, must now be accepted as the appropriate test. This Court in R. v. Taafe[41] and R. v. Saffoury[42] has concluded that that position was not altered by the decision of the High Court in Gipp v. The Queen[43]. That test is whether, making its own independent assessment of the evidence[44], the appellate 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.[45] The majority judges in M. v. The Queen further stated[46] that the appellate court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of seeing and hearing the witnesses. Their Honours also stated[47], in a sentence they described as authoritative, that, if the evidence "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."

149. Assessing the evidence independently and applying the test laid down, I am quite satisfied, for the reasons which follow, that upon the whole of the evidence, including that of the applicants and the evidence that they had no prior convictions, it was open to the jury to be satisfied beyond reasonable doubt that they were guilty of the offences of which the jury found them guilty. There are, as already mentioned, inconsistencies between versions given by the complainant at different times and some unusual features, such as the use by the complainant of her mobile phone to receive calls during the period of non-consensual sexual activity. But save that the inconsistencies might be called discrepancies, I do not consider that the evidence called for the Crown contains discrepancies or that it displays inadequacies or is tainted or otherwise lacks probative force, certainly not in such a way as to lead me to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that innocent persons have been convicted. I have considered the various matters relied on and enumerated earlier and also the schedule of inconsistencies. Inconsistencies between versions which a complainant has to give to different tribunals of fact are not uncommon and, as Mr. McArdle for the respondent said, they happen in trials. Their evaluation is a matter par excellence for juries. Of the enumerated matters some are irrelevant, some are of no or very little weight, some overstate the evidence and some assume the applicants' evidence to be correct. As to item (ii), the complainant came very close to complaining to Harry, if she did not in fact make a partial complaint. The suggestion in item (iii) is, to my mind, unrealistic. Though the fact that the complainant took a call or calls on her mobile telephone during the period of what she said was non-consensual sexual activity may seem strange or even bizarre, that she took a call from Harry is confirmed by his subsequent attendance that day at the security office. Indeed, on the evidence available his attendance might well be thought to have been in response

to her crying and to the statement which she said she made to him that she was "in trouble". The evidence contained a number of comments strongly supporting the credibility of the complainant's version of events and placing real difficulties in the way of the success of the present ground. The following in particular may be mentioned. Barnes was woken by some banging and a faint argument over money. The complainant fled the flat naked and in a distressed state. That is perhaps the most telling fact. She made an immediate complaint to Barnes. That serves to bolster her evidence, as the judge indeed instructed the jury was its only use. The fact that, besides the complainant's first name, there is another name in the handwritten note, Exhibit 2, strongly supports her evidence that her dog was discussed and detracts from Toulle's evidence to the contrary, and thereby generally supports her credibility and detracts from his. The evidence by Aden that they spent an hour and a half, and the evidence of Toulle that they spent an hour, drinking before there was any sexual activity is entirely improbable when it is remembered that the complainant was a prostitute booked for an hour for whom time was money and who needed money. I refer to, but do not repeat, what has been said earlier about the complainant's estimates of time, and add only that the recorded time at the automatic teller machine suggests that the group may have entered Farah's flat somewhat earlier than 5.45 a.m., thus leaving more time for the events which occurred at the flat. The speedy departure of the applicants from that flat after the complainant had left and the use by at least one of them of the stairs instead of the lift are at least consistent with a consciousness of guilt. In coming to my conclusion I have taken account of the trial judge's reports and the argumentative and tendentious nature of the complainant's answers in cross-examination.

153. For the foregoing reasons, I would dismiss each application.

158. I agree for the reasons advanced by Batt, J.A. in his judgment.

[1] [1989] HCA 60; (1989) 168 C.L.R. 79.

[2] Longman at 86; R. v. Miletic [1997] 1 V.R. 593 at 605.

[4] Compare R. v. Freeman [1980] VicRp 1; [1980] V.R. 1.

[5] See also Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 at 451.

[8] R. v. PJJ [1998] VSCA 96 at para.[18].

[10] [1999] VSCA 145; [1999] 3 V.R. 355 at 356 and 360-361.

[11] [1999] HCA 42; (1999) 197 C.L.R. 162.

[12] (1987) 11 N.S.W.L.R. 12 at 19.

[15] Compare R. v. Sung Hwan Bang [1999] VSCA 46 at para.[22].

[17] [1998] VSCA 63 at [17] and [28].

[18] [2000] W.A.S.C.A. 197.

[19] [1999] VSCA 46.

[20] (2000) 75 A.L.J.R. 133 at 141, para.[42].

[21] [1998] VSCA 96 at paras.[16] and [18].

[22] [1993] VicRp 87; [1993] 2 V.R. 497.

[23] [1986] HCA 49; (1986) 161 C.L.R. 315 at 319.

[24] Compare Pemble v. The Queen [1971] HCA 20; (1971) 124 C.L.R. 107 at 117-118 and 133.

[25] R. v. Wilkes & Briant [1965] VicRp 64; [1965] V.R. 475 at 479, a rape case where consent was in issue. Compare RPS v. The Queen [2000] HCA 3; (2000) 199 C.L.R. 620 at 637, para.[41].

[26] [1994] HCA 55; (1994) 69 A.L.J.R. 77 at 79.

[27] As already indicated, this was not so in the case of the indecent assaults, but no exception was taken below or objection made before us. In any event, as explained later in the text, the proviso would apply in relation to count 2.

[28] Griffiths at 79; compare Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[31] [2001] VSCA 8.

[32] [1998] 3 V.R. 602 at 628.

[34] (1994) 75 A.Crim.R. 522 at 539-540.

[36] (1987) 44 S.A.S.R. 591 at 593 per King, C.J.

[38] We were not taken to evidence supporting this assertion.

[39] (1997) 191 C.L.R. 439 at 450-451 and 452.

[40] [1994] HCA 63; (1994) 181 C.L.R. 487 at 493; see also at 494-495.

[41] [1998] VSCA 4; (1998) 102 A.Crim.R. 472.

[42] [1998] VSCA 36 at para. [20].