R v Alexander [2007] VSCA 178

Court of Appeal (Vic)|2007-08-30|Before: CHERNOV, NETTLE and ASHLEY JJA

**CRIMINAL LAW - Rape - Jury direction - Consent - Accused's belief - Whether trial judge answered jury's question as to mens rea - Mistaken belief by accused on question of consent not put in issue at trial - Whether trial judge required in any event to give direction on the issue of mistaken belief - Threat to kill - Whether open on evidence to conclude that statement amounted to threat to kill - McKinney warning - Circumstances where McKinney warning appropriate.

SENTENCE - Total effective sentence of five years three months' imprisonment with non-parole period of three years and nine months with respect to offences of rape, false imprisonment and threat to kill not manifestly excessive.**

1 The applicant, Anton Alexander, who is now aged 55 years, was found guilty by a jury after a trial in the County Court that lasted 10 sitting days of one count of rape, one count of false imprisonment and one count of making a threat to kill. On 10 May 2006, after hearing a plea in mitigation of sentence, the sentencing judge sentenced the applicant to the following terms of imprisonment: on the count of rape (count 1) - four years, on the count of false imprisonment (count 3) - two years, and on the count of making a threat to kill (count 4) - one year. His Honour directed that one year of the sentence imposed on count 3 and three months of the sentence imposed on count 4 be served cumulatively with the sentence imposed on count 1, thereby imposing a total effective sentence of five years and three months' imprisonment. His Honour directed that a minimum term of three years and nine months of imprisonment be served before the applicant would be eligible for parole. The applicant now seeks leave to appeal against the conviction and sentence.

**2 Before dealing with the grounds of the applications, it is necessary to set out briefly the circumstances of the offending and of the applicant. For a period of 17 years, up to 2001, the applicant and the complainant lived in a de facto relationship. In 2001 they separated and lived in separate premises. Nevertheless, they continued to have an ongoing relationship which the sentencing judge described as being "occasionally sexual". They separated by agreement on a number of occasions over this period, but after some time, they resumed their relationship. In about the mid 1990s, the tension between them increased because of the complainant's awareness that, on a visit in 1993 to his country of birth, Bulgaria, the applicant fathered a child. As I have mentioned, the parties separated in 2001, and in late 2003 the applicant told the complainant that the child and her mother would be coming to Australia in the new year. This information, said his Honour, imposed a further strain on their existing relationship.

3 Although, as his Honour said, there was a dispute as to the extent and nature of the ongoing contact between the parties after 2001, it was apparent that there was some communication between them. The complainant explained that such contact as existed related essentially to the ongoing issues in respect of their jointly owned property. The sentencing judge noted that both were uncertain as to the extent to which they wanted the relationship to continue. In 2004, the judge said, the applicant was probably more enthusiastic than the complainant for the relationship to continue. The complainant, it would seem, told the applicant that the relationship was over, but he refused to accept this.

4 It was in this context that, on Saturday, 3 April 2004, he came to the complainant's home in the middle of the day, unannounced. Two of the complainant's friends were there and, when the applicant told the complainant that he wanted to talk to her, they enquired whether she wanted them to stay. The complainant effectively told them that there was no need for them to remain because she was not apprehensive about the applicant. In her evidence she said that she accepted that his purpose in being there was just to talk. Because the applicant and the complainant gave different versions of what occurred thereafter, and given that this difference is relevant to a principal issue before us, it will be necessary to summarise the respective accounts of those events. The complainant said that after the friends left the applicant started questioning her about sexual matters. As he had done on other occasions, she said, he asked whom she had been seeing and whether she had any new relationships and, in particular, whether she had sex with anybody. The complainant explained in her evidence that she thought that if she simply said "yes" the applicant would go away, so she said: "Yes, I have and now go away". She said that the applicant became very upset about this response and made a rush at her. She said that he more or less propelled her backwards from the lounge room across the hallway into the bedroom. He was saying that he wanted to have sex and, as he was pushing her, she said "Look, anything that happens in this room is against my will, Tony. I don't want anything to do with you anymore. If you do anything at all it will be rape." The complainant said that he was saying things like "come on, just one more time"; he looked distraught and eventually pushed the complainant towards the end of the bed and tried to remove her clothing and began to fondle and suck her breasts. The complainant said that he then "undid his trousers and I think he pulled down the underpants he was wearing and he had an erection and he grabbed me by the head and forced my face towards it and onto his penis. He was saying 'just suck me, suck me', or something like that. He moved [it] in my mouth several times". She that after a relatively short period of time the applicant ejaculated in her mouth. Not long thereafter, the applicant left.

5 The applicant's version of these events was that he agreed that there was (oral) sexual contact between the two in the complainant's bedroom, but claimed that the complainant had consented to it. He said that they agreed in the lounge room to have sex, but because of her bad back she agreed that she would only give him oral sex.

6 The next contact between the applicant and the complainant was on the evening of 6 April 2004. He telephoned her and said that he wanted to come to her house in about 15 minutes to pick up an item that he had stored in her garage. She told him that he could do that, and in order to avoid his coming into the house, she went outside to unlock the garage door intending to return to the house so that she would be secure inside it when the applicant arrived. But when she stepped outside, to her surprise, the applicant was already there. Nevertheless, she went to the garage and he obtained the item that he wanted.

7 Although not invited to do so, the applicant followed the complainant into the house, snibbed the front door and told her that he wanted to talk to her. He asked her about her relationship with other men, including one that occurred some 19 to 20 years ago. The complainant told the applicant: "Get a life, just get on with your life. Leave me alone." The applicant became very tense and produced from the bag that he had brought with him a thick nylon cord. He then grabbed the complainant's arm and tried to tie it behind her back. His Honour said that the applicant looped the cord around the complainant and tried to force her right hand down. As this was occurring, the complainant said, she thought that he was going to "hog tie" her and that she could be strangled. Consequently, so she said, she stuck her chin out and the cord went around her chin and not around her neck. The complainant said that she was frightened that the applicant was going to pull on it and that she would not be able to breathe. She also said that her legs were tied around the ankles and, when she yelled for help, the applicant hit her on two occasions with an open hand. At one stage he placed a handkerchief into her mouth to stop her yelling. The applicant then produced a large carving knife from his bag and pushed it towards her, although not to the extent that there was any penetration of the skin. The knife was pushed under the complainant's eye, on her cheek, and over her clothing in the region of the abdomen. His Honour said that, in the course of this, the applicant was saying words like: "Tell the truth, tell the truth" and questioning her about her sexual past. Eventually the complainant managed to get loose and ran to a neighbour's house. The applicant followed her and tried to drag her back although he was unsuccessful, in large part because of the neighbour's intervention.**

8 As to the applicant's personal circumstances, his Honour noted that he was born in Bulgaria and is the youngest of four siblings. He was educated at school for about 11 years and then worked as a warehouse manager in Bulgaria. In 1974 he married and had two sons, both of whom are now living in Australia. As a result of political conflict, principally involving his father, he left Bulgaria in 1976 and went to Italy. In 1977 he came to Australia as a refugee and settled initially in Sydney where he obtained work as a carpenter. The applicant and his family then moved to Adelaide where his wife was involved in an extra marital affair with a work colleague. In the result, the couple separated in about 1981 and later, during an altercation that involved, amongst other matters, the claim that his wife was hiding their children from him, the applicant shot and killed the man with whom his wife was having an affair. As a consequence, he was charged with his murder and spent a considerable period on remand. On 15 April 1983 he pleaded guilty in the Supreme Court of South Australia to a count of manslaughter and was sentenced to a term of eight years' imprisonment with a minimum term of three years before being eligible for parole. Because of the amount of pre-sentence detention the applicant had served, he was released in 1984 and it was shortly after this release that he commenced his relationship with the complainant.

9 I now turn to consider the grounds on which the applicant relied in respect of his application for leave to appeal against conviction, and do so in the order in which they were argued.

Ground 4: erroneous response to jury's question

10 The circumstances that gave rise to the complaint in ground 4, which essentially alleged that his Honour failed adequately to direct the jury on the issue of mens rea when answering their questions, arose out of the following questions that were posed by the jury not long after they retired to consider their verdict. Relevantly, they asked:

"... If the accused thought that [the complainant] was consenting is it rape? If the accused didn't think that [the complainant] was seriously objecting is it rape? If you wear the victim down to the point of giving consent is that classed as rape? ..."

In response to the questions, and without discussing them or the proposed answer with counsel, his Honour told the jury this:

"... I'll discuss in general terms what is meant by - or what is required before a rape is made out and that will cover, I hope, the specific questions that you raised.

What I said to you before in the course of the charge is that for a count of rape to be established there are certain things that ... the prosecution must establish to your satisfaction beyond reasonable doubt. The first is that there must be an act of sexual penetration. As I said to you, traditionally a common law rape involved penile penetration of the vagina but by statute that's been expanded to include other acts of sexual penetration including oral penetration, and there was no contest that an act of oral penetration is an act of sexual penetration for the purposes of rape.

So the first thing is there must be an act of sexual penetration. Secondly, the prosecution must prove - and I mean prove beyond reasonable doubt, that there was a lack of consent on the part of the person the subject of the act of sexual penetration. In other words an act that [the complainant] must in fact not have been consenting and the prosecution must prove that to the standard of beyond reasonable doubt. She said in the course of her evidence that she was not consenting but it's a matter for you to be satisfied that she was not in fact consenting.

What does consent mean in law? It means free agreement. The Crown must prove that she did not give her free agreement. And it's demonstrated by what she says or does or does not say at the time. The law is that evidence that a woman did not say or do anything to indicate her consent is normally enough to show that the act took place without her free agreement, and consent means free agreement. In other words agreement not the result of undue pressure, not the result of physical force. It must be free agreement.

In addition to a lack of consent on her part, as you obviously appreciate from the question on this topic, the Crown must also prove that the accused had the required guilty mind, and that is as the charge reads, the Crown must prove that he knew that she was not consenting or might not be consenting as in the text of the charge, and that's the required guilty mind of the accused.

The Crown must prove that the accused intended to commit the crime of rape in the sense that at the time that he was involved in the act of sexual penetration with her he was aware that she was not consenting or realised that she might not be consenting and was determined to have sexual penetration of her whether she was consenting or not. In determining whether the accused believed she was consenting you must take into account whether the belief was reasonable in the circumstances. That's one of the ways in which you might determine the fundamental question, what was the state of mind of the accused at the time of the act of penetration? Did he intend to commit the crime of rape in the sense that at the time of penetration he knew that she was not consenting or being aware that she might not be consenting, persisted in the act of penetration nonetheless.

I made the comment to you in the course of the charge, and I make it again now, that in this case it would seem to me that the way the case has been put to you is that the Crown relies upon the evidence of [the complainant] concerning her lack of consent and the circumstances in which the act of sexual penetration occurred.

Defence counsel ... did not in the course of her final address to you ever say you should not accept that that version of events is correct, but if you do, even on that version you would have a doubt about whether the charge of rape was made out and should therefore acquit. She was content to put her case to you on the basis that you would not be satisfied beyond reasonable doubt that the facts relied upon by the Crown, attempting to establish that she did not consent and that he knew she was not consenting, were not made out. That was what she argued to you.

So it seems to me - and this is a comment that doesn't bind you but this is a comment from my part, it depends upon your view of the facts. If you accept what she says and accept it beyond reasonable doubt, then it would seem to me that the charge of rape is made out. [Counsel] did not contend otherwise. On the other hand, if you are not satisfied beyond reasonable doubt that what she said about the circumstances of that act of sexual penetration, then you are not satisfied beyond reasonable doubt and obviously should return a verdict of not guilty on the count of rape.

I hope that helps. That, I think, is a general answer to the specific questions that you've asked. Please don't hesitate to ask again if you've got further queries. Don't be embarrassed to come out and ask for those matters to be repeated or for any other matters to be asked."

No objection was taken to this answer by the applicant's experienced trial counsel, or by the prosecutor, who was also experienced in criminal trials.

**11 The applicant's counsel argued that the questions plainly raised the issue of mens rea and required his Honour to direct the jury on that issue. Essentially, it was claimed, his Honour should have told them that they could not convict the applicant of rape if the Crown had not disproved that he had a belief that the complainant was consenting to giving him oral sex. His Honour's answer, it was said, effectively foreclosed the consideration of the issue of mens rea by the jury because they were told that if they accepted the complainant's evidence rape was made out. Counsel argued that his Honour's answer failed to tell the jury that they could have accepted that substance of the complainant's account, yet acquitted him if they were not satisfied beyond reasonable doubt that he had the requisite mens rea.

12 It may be accepted, for present purposes, that the questions raised the issue of mens rea, although to some extent they were unclear. For example, it is not apparent, I think, what the jury meant by the term "seriously objecting". Did they mean by this that the applicant might have thought that the complainant was objecting, but not strongly? Or did the question suppose that the applicant might have believed that the complainant was not serious in her objection? Similarly, it is not clear what the jury meant by "wear the complainant down". Did the jury assume, for the purpose of the question, that the applicant's verbal persistence in asking - or demanding - to have sex with the complainant reached the point where she agreed just to get rid of him? Or did the question assume that the applicant's conduct overbore the complainant such that she agreed to give him oral sex, merely in order to avoid that situation? Be that as it may, it seems apparent enough that, in asking the questions, the jury were probably concerned with the situation where the applicant may have mistakenly thought that the complainant was not "serious [in] objecting" to having sex. In other words, they may have been focusing on the applicant's mens rea so that the essential question raised under cover of this ground was whether, in all the circumstances, his Honour's answer was inadequate in that regard such as to cause the trial to miscarry.

13 In answering this question regard must obviously be had to the context in which the answer was provided, more particularly, how the case was put to the jury in closing addresses on matters relevant to the present issue and the judge's charge in relation to it. In considering the matter it is also necessary to bear in mind that generally the manner in which a trial is conducted and the issues that are left for determination by the jury, and the directions which are called for by reason of this, are determined by the respective counsel at trial, particularly where the accused is represented by experienced and competent counsel, as was the case here. Thus, Gleeson CJ pointed out in Doggett v The Queen[1]:**

"In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury.

The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) 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 formularies. 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.

When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way. This appeal provides an example of the necessity, when evaluating criticisms of a trial judge's directions to a jury, to relate those criticisms to the manner in which the trial was conducted."

In the present case, there is much to be said for the respondent's claim that the applicant's case on appeal in relation to the issue of mens rea was conducted differently from the way it was presented at trial by the applicant.

**14 It is apparent enough that at trial the only relevant factual issue that was in dispute in respect of count 1 was that of consent. The defence case was that the jury should not accept the complainant's version of the events, more particularly, that she was effectively pushed by the applicant into the bedroom, and then onto the bed, where he sought to have penile intercourse with her against her wishes and, having failed because he could not remove her trousers, took hold of her head and put her mouth onto his penis. As has been noted, it was the applicant's case in this regard - put forward, not by way of oral evidence, but through his record of interview and the cross-examination of the complainant - that whilst in the lounge they agreed to have sex, but because of the applicant's bad back she agreed that it would take the form of oral sex. The applicant contended that they then went into the bedroom where she unzipped his trousers and gave him oral sex.

15 And this is how the defence case was put to the jury in final addresses. There was only one relatively small passage in the address of defence counsel where she told the jury that, in relation to what occurred in the bedroom, it was open for them to find that there was an "alternative scenario". After telling the jury that the applicant told police that the complainant had consented to give him oral sex, counsel said:**

"... that was the account that he gave, and it is the scenario which the Crown have to negative or disprove beyond reasonable doubt. [In other words, "the scenario" was that the complainant consented.]

If the scenario put forward is one that - in other words, the Crown really has to disprove that scenario beyond all reasonable doubt, or any other similar scenario where essentially the accused's position is one of believing the complainant's consenting, or the complainant is consenting.

So, remember, you were told at the outset that rape involves two things where consent is an issue. One is might she have been consenting? The second one is, might he have believed her to have been consenting."

Counsel went on in her address to cast doubt on the credibility of the complainant's version of the events in the bedroom and said:

"So I suggest to you that you couldn't find the first element of non consent proven beyond reasonable doubt and you couldn't find the second element or second aspect of that element that the accused man might not have believed her to be consenting."

But the applicant's counsel did not tell the jury that even if they accepted the complainant's version of what had occurred they could nevertheless not be satisfied beyond reasonable doubt that the applicant did not believe that she was consenting. Importantly, counsel did not suggest to the jury that there was an evidentiary basis on which they could conclude that the applicant might have (mistakenly) believed that the complainant was consenting. The substance of the defence case was, as I have said, that the jury should not be satisfied beyond reasonable doubt of the complainant's version of what took place. They were not urged to find that, even if they accepted the complainant's evidence on this issue, they should conclude that the applicant might have believed otherwise (or that they could not be satisfied beyond reasonable doubt that this was not the case).

16 It was in this context that the judge charged the jury on the requirements of rape and on the relevant evidence.

"[First, the Crown must establish that] there was sexual penetration of the penis into the mouth.

Secondly, it was without her consent, and thirdly it relates to his state of knowledge, [the applicant's] state of mind. That is, whilst he was aware that she was not consenting or might not be consenting, and they are the three elements that have to be proved in respect of a count of rape. Firstly, sexual penetration. Secondly, without consent and in this case, of course, whether [the complainant] was or was not consenting is a matter in issue. Penetration is accepted [by the accused], but it is said that it was with her consent.

[Having dealt with the element of the offence that related to the state of mind of the complainant, his Honour went on:]

Thirdly the Crown must prove the guilty mind of the accused. The Crown must prove that the accused intended to commit the crime of rape in the sense that at the time of the act of sexual penetration he was aware that she was not consenting or else realised that she might not be consenting and was determined to have sexual penetration whether she was consenting or not, so the three elements are the act of sexual penetration, (2) the lack of consent on the part of [the complainant], and thirdly the appropriate guilty mind on the part of the accused.

I make the comment here that those elements can be extremely complicated and the subject of considerable doubt in many cases. The position here is clear-cut however. [The complainant] gave an account of events which, if accepted by you, it was not contended by [the applicant's counsel] would not satisfy you that an act of rape had occurred. She gave an account which [counsel] did not say, as she would have said had it been open to her to say, even if you accept what [the complainant] says, then you cannot be satisfied beyond reasonable doubt that it amounted to an act of rape. [Counsel] did not say that.

The account that is before you on the part of the accused is of consensual intercourse - sexual oral intercourse, and of course on that account, which is part of the evidentiary material before you in a way that I will explain shortly, there can be no question that no rape is established, so here it really comes down to your view of the facts. If you are satisfied beyond reasonable doubt of the facts as alleged by [the complainant], then my comment to you is that you will not really have a doubt that an act of rape is proved."

**17 In the circumstances it is plain enough, I think, that his Honour's answer to the jury's question was a restatement of his earlier charge. Relevantly, on both occasions his Honour focused on the requirements of the "guilty mind" of the accused. And in his "comment" the learned judge highlighted the fact that the case before them was an "all or nothing" case so that if they were not satisfied beyond reasonable doubt of the essence of the complainant's version of the events they could not convict the applicant of rape. I consider that this comment was not disadvantageous to the applicant.

18 It must be accepted that mere failure by the applicant's trial counsel to put to the jury that even if they accepted the complainant's version they could not be satisfied beyond reasonable doubt that he did not believe that she was, or might, not be consenting would not have absolved his Honour from the obligation to tell the jury that such a finding was open to them, providing there was evidence on which such a conclusion could have been reached. As Nettle JA pointed out in R v Tran,[2] despite the way in which the defence case was conducted at trial, if there was a basis on which the jury could have reached a conclusion favourable to the offender, it was incumbent on the judge to leave that to the jury as a possibility and to direct them accordingly. In the same case, Redlich JA said[3] that the mere fact that defence counsel does not stress an alternative case before the jury (which he or she may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it. Importantly, for present purposes, his Honour went on to say that the obligation of the judge is to identify and to direct the jury only on "real issues" that plainly arise from the evidence as distinct from a remote or artificial possibility. Thus, it is apparent enough that a judge is not required to deal with a possible alternative defence not put by counsel for the accused to the jury where there is no evidence on which they could properly reach the conclusion to accept the alternative scenario. And in my view that was the position in this case.

19 As counsel for the respondent pointed out in his submissions to us, correctly, I think, the judge directed the jury on the basis that if they did not accept the essential aspects of the complainant's version of what took place in relation to the bedroom incident, they were bound to acquit the applicant. Plainly enough, if that were to be the position, that is to say, if the jury rejected the whole or even part of the complainant's version of events and concluded that they were not satisfied beyond reasonable doubt as to her claimed lack of consent, the question whether the applicant had formed a mistaken belief about the complainant's consent would not have arisen.

20 But if the jury were satisfied to the requisite standard that the complainant had not consented to have sex with the applicant as she claimed, I consider that, unless there was evidence on which they could have concluded that he may have been mistaken as to her state of mind, to direct them to consider this possibility would have been tantamount to inviting them to speculate on the matter. As I have said, it is one thing for the jury to reject the whole or part of the complainant's evidence going to the question of consent and to conclude that, in the circumstances, they were not satisfied beyond reasonable doubt that she did not consent. But it is an altogether different matter to tell the jury that, even if they accepted the essential aspects of the complainant's evidence, they should nevertheless consider if the applicant might have been mistaken on the issue of consent where there is no evidence from which such a belief on the part of the applicant could be inferred.

21 It is not altogether irrelevant that such a scenario was never put by counsel to the complainant in cross-examination or to the jury in final addresses. It was not suggested to her in cross-examination, for example, that she was only "playing hard to get" or that her stated refusal to have sex with the applicant was made in tones that could have been taken as no more than a thin disguise for her preparedness to have sex. But more importantly, I think that there was no evidentiary basis on which the jury could have concluded that the applicant held a mistaken belief on the question of the complainant's consent.

22 It seems to me that, contrary to the applicant's claim, his Honour made it sufficiently plain in his answer, particularly when it is considered in the context of his charge, that mens rea by the applicant must be established by the prosecution to the requisite standard. As has been noted, the judge told the jury in his answer that before they could find the applicant guilty of rape, one of the matters of which they had to be satisfied beyond reasonable doubt was that the applicant "knew that [the complainant] was not consenting or might not be consenting ... and that's the required guilty mind of the accused." As Callaway JA pointed out in R v Zilm,[4] what the Crown must relevantly establish in relation to a charge of rape is that, in fact, the accused was aware that the complainant was not consenting or might not have been consenting. As to that, I think the judge made the requirement sufficiently plain to the jury. And I consider that his Honour's impugned comment merely emphasised that the prosecution could not establish that the applicant raped the complainant unless they accepted beyond reasonable doubt her version of the events.

23 Moreover, as I have noted, there was no exception taken by the applicant's experienced trial counsel to the judge's impugned answer that was, essentially, consistent with the judge's charge on this issue. It is also not irrelevant that the prosecutor, who was also experienced in the jurisdiction, appeared content with the charge and his Honour's impugned answer. Although not determinative of the issue, this indicates that neither counsel perceived any unfairness or deficiency in his Honour's answer of the kind now asserted by the applicant's counsel.[5] I mention for completeness that, in my view, Zilm was a materially different case. There, the trial judge failed in the charge sufficiently to relate the law to the facts and issues. But in the circumstances of that case there was an evidentiary basis on which the jury may have concluded that the accused might have mistakenly believed that the complainant was consenting to having sex with him. As I have said, in my view, that is not the position here.**

**24 The circumstances giving rise to ground 6 were these. The complainant said in her evidence that on 6 April 2004, after the applicant had tied her up as described earlier, she went to the a police station and spoke to a policeman (Senior Constable Fitzgerald) concerning the applicant's conduct towards her on 3 and 6 April. She said that, during the course of that conversation, she received a telephone call on her mobile telephone from the applicant and that whilst she was speaking with him the police officer's head was right beside the telephone. Occasionally, the police officer motioned to her to indicate that he wanted the telephone and he then took it from her and, whilst listening, took notes. She said in her evidence that she estimated that the telephone call lasted three to four minutes or longer.

25 The complainant gave the following evidence of the conversation.**

"What were some of the things that you recall? --- It was all about how much he love (sic) me, and one minute he'd be saying he loved me and so forth about that, and then the next he would say that he was going to finish off my family and - so he was sort of pleading not to give up on the whole situation sort of thing, and yet threatening at the same time.

When you say finish off your family, what do you mean by that? --- Well, he didn't actually say anything more than that. He didn't put into any words any direct threats such as kill or shoot or anything like that. No, he just said, 'I'll finish off.'

What did you understand that to mean? --- That he would hurt them or kill them.

Was anything said in relation to yourself? --- Yes.

What was that? --- Same sort of thing was going to happen to me."

The complainant said that she understood from that part of what the applicant said that he would do to her what he said he would do to her family (namely, kill her).

26 At the trial, Senior Constable Fitzgerald gave evidence that he overheard some of the above telephone conversation between the applicant and the complainant and that he took notes of it. He read the following from those notes:

"Yes, please? --- Then the male voice, 'You harm me by having sex with another man. I harmed you like tonight.' There's a pause. 'I regret it. I'm sorry I did it.' [The complainant] said, 'I'll see you in court.' The man said, 'If you take me to court, I'm going to wipe out your whole family. Even if I do go to gaol, I will get out, then look out. You're ruining my life.' Then he went on to say, 'If you take me to court and don't drop the charges, you will see what I will do to you and that is a promise,'..."

**27 Under cover of ground 6 it was submitted for the applicant that, for the following reasons, it was not open to a properly instructed jury acting reasonably to be satisfied to the requisite standard that the alleged threat amounted to a threat to kill the complainant, or that the applicant intended or was reckless as to whether she would fear that she would be killed. First, it was argued that the complainant's own evidence was that she understood the threat to her family as being one to "hurt them or kill them". It was said that, notwithstanding that the complainant knew the applicant, she was not able to exclude the possibility that what he said to her was only a threat to hurt her. Secondly, it was claimed, the threat was to her family and not to her. Thirdly, said counsel, it is not clear whether Senior Constable Fitzgerald was giving evidence of the same passage of conversation and fourthly, it was argued, his account of the threat to the complainant was no more than "you will see what I will do to you and that is a promise" and that statement, it was submitted, was not capable of being a threat to kill.

28 In my view, however, these arguments are without merit. It is plain enough that the use by the applicant of the words "wipe out " and "finish" in relation to the complainant's family were reasonably capable of being construed as a reference to killing them. And, I think, the applicant made it plain that he linked the complainant's fate with that of her family. It was a matter for the jury to determine whether, in the circumstances, the words in question amounted to a threat to kill rather than merely to do her harm and whether she understood them to convey a threat to kill her. It is relevant to bear in mind that, as counsel for the respondent pointed out, unlike the position in R v Leece[6] on which the applicant's counsel relied, it was not irrelevant to the consideration of this issue here that the applicant had behaved violently towards the complainant earlier on that day such as to put her in fear of him. Moreover, there was a discernable motive for him to make the threats seriously, given that he said he wanted her to drop the charges and thus avoid prosecution.

29 It is also clear, I think, that the jury could have properly concluded that each of the two witnesses referred to the same conversation, notwithstanding that the complainant said that it lasted only for about three to four minutes, while the tendered telephone records showed that the duration was a little over half an hour. I consider that it was open to the jury to conclude, given the applicant's lengthy cross-examination of her about her sex life as I have described, that the complainant's time estimate might have been confined to the substance of the telephone conversation relating to the threat.

30 I note for completeness that it was not suggested by the applicant's counsel that his Honour's direction to the jury on the elements of the offence was inadequate. The jury were told that the essential element of the offence is a threat to kill, as distinct from a threat to do harm, and the threat must be made with the intent that the victim would fear that the threat will be carried out, or that he was reckless as to whether or not there would be such fear. His Honour explained that it was not an ingredient of the offence that the offender actually intended to carry out the threat. No exception was taken to this aspect of the charge.

31 In the circumstances, I consider that this ground should also fail.**

Ground 5: alternative verdict of threat to inflict serious injury

**32 It was next argued under cover of ground 5 that his Honour erred in not leaving to the jury the alternative verdict to that of making a threat to kill, namely, making a threat to cause serious injury. It was claimed that, given the ambiguity in the evidence as to whether there was a threat to kill or hurt, and the vagueness of this evidence generally, it was incumbent on the judge to leave to the jury the alternative verdict of threatening to inflict serious injury.

33 In my view, however, this ground is also without merit. For the reasons I have given, his Honour's charge made it clear to the jury what were the essential elements of the offence and there was no ambiguity in the evidence such that it would not have been open to the jury to conclude that the threat made by the applicant was one to kill the complainant and that, by making it, he intended her to believe it would be carried out (or that he was reckless as to that).**

34 It was further asserted for the applicant that his Honour erred by failing to give the jury a warning in accordance with McKinney v The Queen[7] ("McKinney")in respect of the admissions and threats allegedly overheard by Senior Constable Fitzgerald. In my view, however, the circumstances in which a McKinney warning is ordinarily required to be given are not present here. McKinney was concerned with a claim by the offender that his confession in his record of interview was fabricated by the police whilst he was in the police station and was signed by him there only because he was overborne by the police. In those circumstances, said the majority:[8]

"... the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly it is necessary that they be instructed ... that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody... ."

The essence of McKinney, I think, is that where it is claimed that the relevant part of a confessional statement, made whilst in the custody and in the sole presence of police, has been fabricated by them, the jury should be reminded of the difficulty that such a person has in challenging police evidence as to that, particularly where he is the sole person giving evidence on this issue, and of the danger of convicting such an accused person only on the basis of the alleged admission. By way of contrast, the applicant's statement here was not made while he was in police custody and, importantly, what he said was not relevantly vulnerable to fabrication. Moreover, it was corroborated by the complainant. Furthermore, the applicant was given an opportunity in the record of interview of 21 April 2004 to answer the allegation that he threatened to kill the complainant during the telephone conversation in question. He denied that claim. And in R v Schaeffer,[9] another case on which the applicant relied, the circumstances were materially different from those here. There, the telephone admission by the offender was made while he was in police custody and whilst at the police station and, unlike here, the police officer who allegedly overheard that admission did not raise the matter during a record of interview conducted shortly thereafter.

35 In the circumstances, I consider that this ground has not been made out.

**36 I now turn to the applicant's claim that the sentences, including the non-parole period, are manifestly excessive. In that context, counsel pointed to the applicant's personal circumstances and other mitigating factors put on his behalf at the hearing of the plea in mitigation (and which are sufficiently summarised in his Honour's sentencing remarks). Counsel also emphasised the fact that his prior conviction, namely, that of manslaughter, occurred many years ago, that the applicant did not have a history of sexual violence and that there was considerable delay in the finalisation of the charges. It was further argued that even if the individual sentences are not manifestly excessive, the sentence imposed by his Honour on the count of rape - four years - was firm and, in the circumstances, it was excessive to order a total of 15 months' cumulation of the other sentences.

37 It is plain enough that the task of the sentencing judge was to impose a sentence that reflected the gravity of the offences and of the offending conduct and the applicable sentencing principles, balanced against the personal circumstances of the applicant and other mitigating factors. It is obvious enough that the offences here were very serious; the maximum custodial sentence prescribed for rape is 25 years' imprisonment, and ten years is prescribed in respect of each of the other offences. The offending conduct here was also grave given that, in respect of counts 1 and 3, for example, the offending took place in the claimant's home, involved a gross humiliation of her as well as physical abuse and the subjecting of her to a terrifying ordeal. Moreover, on each occasion, the applicant practised deceit in order to be alone with the complainant so that he could perpetrate the cowardly offences. None of the offending seems to me to have occurred on the spur of the moment. On each of the two occasions he came to the complainant's home with the intent of achieving his unlawful aim. This was followed by his telephone threats that were intended to make the complainant believe that she would be killed if she went through with the complaints to the police. The complainant's victim impact statement makes plain her fear of the applicant that has been left imprinted on her**

mind by reason of his conduct towards her. I note for completeness that the applicant is not entitled to any sentencing discount for remorse and, in that respect, it is not irrelevant to note the observation in the sentencing remarks of the experienced sentencing judge that the applicant seems to have no insight into his serious offending. Moreover, the sentencing principles of specific and general deterrence and condemnation of the offending conduct by the court were important considerations in the disposition. And the applicant's prospects of rehabilitation do not appear to be sound.

38 In the circumstances, and taking into account the mitigating factors that are sufficiently summarised in his Honour's sentencing remarks, I consider that each sentence is balanced and, in particular, the sentence on count 1 is within the relevant range. It is plain enough also, I think, that some cumulation was called for given the separate occasions on which the offences were committed. I consider that his Honour's orders for cumulation are moderate and that the total effective sentence is within the relevant range. I also think that there is no error in the non-parole period.

39 For the above reasons, I would refuse both applications.

40 I have had the advantage of reading in draft the reasons for judgment of Chernov JA. With respect I agree with his Honour in all respects save one. I have come to a different view, however, concerning Ground 4 of the application. In my view, the trial judge erred by failing adequately to answer the jury's questions concerning the mens rea required to constitute the offence of rape and, further, by taking away from the jury, as a possibility which was open on the evidence that, if the complainant did not consent to fellate the applicant, the applicant may still have believed that she consented.

**41 I start by recognising the force of Chernov JA's observation that the applicant's case on appeal in relation to the issue of mens rea was conducted to some extent differently from the way in which it was presented at trial. More particularly, defence counsel did not put to the jury in terms that there was an evidentiary basis from which to conclude that the applicant might have (mistakenly) believed that the complainant was consenting to fellate him. The substance of the defence case at trial was that the jury should not be satisfied beyond reasonable doubt of the complainant's version of what took place.

42 That said, however, the law remains as stated in Pemble:[10]**

"...Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. I should mention in this connexion that this is an appeal and not an application for special leave to appeal. It is not a case where there has merely been a failure to seek or to object to a direction on a matter which could readily have been cured by the trial judge. But in so remarking I do not intend to suggest that a failure of a trial judge to direct a jury on a matter arising upon the evidence in the trial but either not relied on or actually abandoned by counsel, would not afford ground for the grant of special leave to appeal in an appropriate case." [11]

**43 Next, I gratefully adopt Chernov JA's summation of the complainant's evidence of the events which were said to constitute the offence of rape. It is unnecessary to repeat them. But unlike his Honour, as I see it, therein lay the evidential basis for a view of the facts that was consistent with the applicant's innocence. For allowing that the jury accepted the complainant's version of events, including even her allegation that she solemnly intoned at the outset of the action that: "Anything which happens in this room is against my will, Tony", I consider that it was still open to find that, when the applicant later beseeched the complainant to: "Suck me, suck me", and she did suck him - until he ejaculated, the applicant at that point believed that she was consenting to fellate him.

44 To state the obvious, it is not possible for a man to get his erect penis inside the mouth of a woman - even less to be fellated to ejaculation - unless the woman first opens her mouth and then suffers the man's penis to remain in her mouth for the time that is required. Therefore, assuming an absence of physical force or threat or intimidation (and in this case, there was not much evidence of such) if a woman so opens her mouth as to receive a man's penis and then fellates him to ejaculation, it might reasonably be thought that she does so voluntarily.

45 I add that in this case there was also the evidence of a 17 year on-again-off- again sexual relationship in which it seems that oral sex was commonplace. Defence counsel put it to the jury in these terms in the course of final address:**

"And you'll recall that I put to her that on 3 April - that I put to her generally about her relationship with the accused man, that oral sex was a pretty regular part of that relationship, and she agreed. I put to her that sometimes it was used as a bit of an ice breaker when there was tension in the relationship, and she agreed with that too after at first sort of fudging around the issue.

And I put to her, or in fact it was her words, she said 'oh, there were some times when there was a bit of a cold war going on in the relationship from time to time'. And do your recall I put to her a specific occasion when on the accused man's birthday in 2001 they'd gone out to (indistinct), and he'd tried to initiate something romantic and she'd rebuffed him. And then she tried to reinitiate it back and the he rebuffed her, and there was this little stand-off. But that it was broken by her initiating oral sex. And you will recall her answers about that, that she really just fudged it a bit and said 'oh I can't specifically recall. There was a lot of sex in that relationship'."[12]

46 In the circumstances, it is hardly surprising that, after deliberating for some time, the jury should have asked these questions:

"If the accused thought that [the complainant] was consenting is it rape?"

"If the accused didn't think that [the complainant] was seriously objecting is it rape?"

"If you wear the victim down to the point of giving consent is that classed as a rape?"

Evidently, at that point the jury had in mind that they might accept the complainant's testimony and yet still allow of the reasonable possibility that the applicant thought that the complainant was consenting, or thought that she was feigning objection, and thus was consenting, and that such a state of affairs had come about because of the applicant's persistence after the initial rebuff.

**47 Chernov JA has set out in full the answers which the judge gave to the jury's questions and I shall not repeat them in full. But with respect, in my view they contained three errors.

48 First, the correct answer to the first question was "No" - not an extended dissertation on the law relating to consent in rape - and the applicant was entitled to such benefit as a "No" answer was likely to have yielded him.

49 Secondly, in the course of attempting to answer the second and third questions, the judge told the jury that:**

"In determining whether the accused believed she was consenting you must take into account whether the belief was reasonable in the circumstances. That's one of the ways in which you might determine the fundamental question, what was the state of mind of the accused at the time of the act of penetration? Did he intend to commit the crime of rape in the sense that at the time of penetration he knew that she was not consenting or being aware that she might not be consenting, persisted in the act of penetration nonetheless."

With respect, that was right as far as it went, because it complied with s 37(1)(c) of the Crimes Act 1958. But in my view it was deficient in that it did not go on to make plain that "the reasonableness or otherwise of a belief is no more than a guide to whether it was in fact held and that 'it does not follow that the unreasonableness of [the accused's belief] renders the defence untenable'."[13]

**50 Given the circumstances of this case, and in particular the terms of the jury's second and third questions, it was necessary "to balance the direction required by s 37(1)(c) with a clear statement that the accused's belief does not have to be reasonable as a matter of law and that the Crown must prove that, in fact, he was aware that the complainant was not consenting or might not be consenting".[14]

51 Thirdly, having completed the redirection on consent, the judge went on to repeat what he described as "a comment" made earlier in his charge, in these terms:**

"I made the comment to you in the course of the charge, and I make it again now, that in this case it would seem to me that the way the case has been put to you is that the Crown relies upon the evidence of [the complainant] concerning her lack of consent and the circumstances in which the act of sexual penetration occurred.

[Defence counsel] ... did not in the course of her final address to you ever say you should not accept that that version of events is correct, but if you do, even on that version you would have a doubt about whether the charge of rape was made out and should therefore acquit. She was content to put her case to you on the basis that you would not be satisfied beyond reasonable doubt that the facts relied upon by the Crown, attempting to establish that she did not consent and that he knew she was not consenting, were not made out. That was what she argued to you.

In my view there were three things wrong with that.

52 First, although defence counsel did not put to the jury in terms that they could accept the complainant's evidence and still not be satisfied of guilt beyond reasonable doubt, she twice put submissions which were either tantamount or close to the substance of that contention. Thus:

"So, whilst the relationship might not have been resolved on that day, that was the account that he gave, and it is the scenario which the Crown have to negative or disprove beyond reasonable doubt.

If the scenario put forward is one that - in other words, the Crown really has to disprove that scenario beyond all reasonable doubt, or any other similar scenario where essentially the accused's position is one of believing the complainant's consenting, or the complainant is consenting.

So, remember, you were told at the outset that rape involves two things where consent is an issue. One is might she have been consenting? The second one is, might he have believed her to have been consenting."[15]

"...You'll recall she says he was kissing and sucking her breasts. Once again a funny kind of rape, I suggest, members of the jury.

So I suggest to you that you couldn't find the first element of non consent proven beyond reasonable doubt and you couldn't find the second element or second aspect of that element that the accused man might not have believed her to be consenting."[16]

53 Secondly, whether or not counsel put to the jury the possibility of accepting the complainant's evidence and yet not being satisfied that the applicant did not believe that the complainant was consenting, that was a possible view of the facts open on the evidence and, for the reasons already given, it was incumbent on the judge to leave it to the jury as a possibility for their consideration. As McHugh J put it in Fingelton:

"No doubt the arguments of counsel for the appellant at the trial reflected his belief that the appellant's best chance of acquittal lay in putting the issues in the way that he did. His failure to ask the judge for the legal directions that should have been given may also have reflected the belief that putting issues to the jury that did not reflect the course of his address might have confused the jury and made the chance of acquittal less likely. He may have thought that his client's chance of acquittal would not be improved, but would be likely to be harmed, if he asked the judge to direct the jury in accordance with what I think were the real issues posed by the s 119B charge and the evidence. Similarly, he may have thought that the best interests of his client would not be advanced by a close interpretation of the various terms of the section. But if he held these views, he was mistaken because it led to the appellant's true case not being put before the jury.

Whatever the offence and however the accused's case is conducted, the law requires that a judge's summing-up comply with the principles to which I have referred. A trial judge is bound to put to the jury every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned."[17]

**54 This case stands in contrast to cases like R v Aden and Toulle[18] and R v VN,[19] in which defence counsel not only forbore from putting a defence later sought to be relied upon on appeal but also there was no basis in the evidence for such a defence.

55 Thirdly, and notwithstanding that it was described as a "comment", the last part of the redirection set out above was in effect bound to lead the jury erroneously to the view that, if they accepted the complainant's evidence, they should convict regardless of what they might have thought about the applicant's state of mind.

56 In the result, I consider that the applicant was deprived of a real chance of acquittal to which he was entitled. It follows, in my view, that his conviction of that count was a miscarriage of justice and should be set aside. I would, therefore, allow the application for leave to appeal and allow the appeal in part, and I would quash that conviction and order that a new trial of that count be had. Otherwise, I agree with the orders proposed by Chernov JA.**

**57 I have had the advantage of reading in draft the reasons for judgment of Chernov and Nettle JJA. I agree with their Honours, for the reasons given by Chernov JA, that none of grounds 3, 5 and 6 on the conviction application, and the sole ground pursued on the sentence application, was made out. That leaves ground 4 on the conviction application, where their Honours part company.

58 Upon that matter, the principles are clear. There is Pemble v The Queen[20] and the authorities referred to by Nettle JA which have followed it. But there are also to be borne in mind the considerations mentioned by Gleeson CJ in Doggett v The Queen[21] in the passage cited by Chernov JA.

59 Having studied the transcript, including counsel's addresses, I think it is clear that the trial was conducted upon a single issue: should the complainant's evidence, summarised at [4] in the reasons of Chernov JA, so far as it bore upon the elements of the crime of rape, be accepted by the jury to the criminal standard? So to conclude must in substance have involved the rejection - although one should not speak of version against version having regard to the onus borne by the Crown - of the applicant's account, given in a record of interview on 7 April 2004.

A: I have not push her for sex at all. I have never pushed her for sex.

Q: And that she was saying that - she was saying no, that she didn't want to have sex with you. Did you have any conversation last Saturday in relation to having sex with Val?

A: Every time I go there, I have conversation with her about sex, except today.

Q: Right. Did you have a conversation on Saturday about having sex with her?

Q: Okay. What she's saying is, you've grabbed her and took her into the bedroom.

A: She was sitting next to me on the couch, I was sitting on this side and she was sitting on the other side. We were together.

Q: Okay. What she's saying is that you've dragged her - grabbed her and took her to the bedroom and dragged her onto the bed.

Q: Okay. She's saying that you forced her to perform oral sex on you.

A: I did not force her. I was talking to her about having sex and she said that she's got problem with her back, so she can't have sex - normal sex. And I said, 'How about a headjob?' She said, 'Okay.'

Q: Mm'm. Right. Well, she's saying that you forced her to do that and she wasn't giving you consent ---?

Q: Well, she's making al-, an allegation that you've raped her, basically.

A: But I have not raped her. I have never raped her. We have always had sex - consensual sex, never raped her.

A: I would never rape her. Why would I rape her? I have lived with her for 17 years.

Q: Right. Just on the tape before, you were saying that in the last 4 weeks, she's wanted to keep you as far away from you - she's wanted to stay as far away from you as possible.

A: Yes. And she's very difficult person to understand. Sometimes she is nice to me, sometimes she is cold."

"A: ... She - she wants me completely out of there and I said to her ---

Q: But if she wants you completely out of there, why would she agree to have oral - why would she perform oral sex on you, if she wants you out?

A: Because - well, she said to me that she still love me, but she wants me to move on. And I said, 'Well, how about this?' And she said, 'Okay.' And I said, 'Then I will go.' And she said, 'Okay,' and that was it. Because, after that, after we had sex, she went to the loungeroom and gave me the standing lamp post, to take it home, and I said, 'I don't know whether I need it.' 'Take it. Take it. It will make difference to your room, to your house.' So, I took it and - I don't know whether she has told you that or not, but that's what happened."

"Q: ... she's made a statement in relation to what she says occurred on the Saturday as well, and in it, she says that, at one stage, you were asking her to have sex with him - with you, sorry - for her to have sex with you one last time, and that she told you 'no' several times."

"Q: ... She says you pushed up her black top that she was wearing and kissed her - kissed and sucked her left breast and then tried to undo her slacks, but that she was wriggling around, and that you didn't succeed in getting the zipper down.

A: If I want to get the zipper down, I'll get it any time. I have not even tried because she said to me, as I stated previously, she had problem - a disc problem on her back, and said, 'I can't do it because I have pain there,' and that's it. But I have not - a black shirt? I'm don't know if she was - was wearing a black shirt or it was ---

A: Probably could be. I don't know whether was black, but it was red and white thing which has got, like, that, like stripes - something, I think it was. I can't remember now.

Q: She says that you held her down whilst you unbuttoned your trousers and that she was half laying on the bed and that you pushed her back.

A: Well, if - if I had raped her, why would she unbutton my trousers?

Q: She - what she's saying though is that you held her down and that you unbuttoned your own trousers.

A: How can I hold her and unbutton my trousers. That is - I mean, anyone can think, can see that that can not happen. How can I undo my trousers and hold her down?

Q: She's saying that you had an erection and forced her head onto your penis and held it there ---?

Q: Right. She says you put 2 hands onto the top of her head and forced her to perform oral sex.

A: That's incorrect. I had my hands on her shoulders."

**61 Pausing, the evidence of the complainant and the applicant's account directly collided at a number of points. On his account -

• The intercourse was consensual. The complainant had said "OK" to his suggestion "How about a head job?"

• He had asked the complainant "Well, how about this?" She had said "OK", and he had said "Then I will go."

• The complainant, not he, had unbuttoned his trousers.

• He had not put his hands on her head and forced her to perform oral sex. His hands had been on her shoulders.

62 On the other hand, the applicant seems not to have been asked to comment specifically upon the complainant's account that, before the happening of the alleged rape, he had asked her questions about her sex life, and particularly whether she had sex with anybody; and that she had answered "Yes I have, now go away."

63 In any event, applicant's account of events was all to the effect that there had been express consent to oral intercourse. The complainant had agreed to his request for oral sex. She had not said "No." He had not forced her down. She had unbuttoned his trousers. He had not put his hands on her head and forced her to perform oral sex. To emphasize the point, it was not his case (in so saying, I do not mean to ignore the onus of proof, but simply to identify the battleground) that the Crown had not proved that when penetrating the complainant, he was aware that she was not consenting or might not be consenting. His state of mind, based on her words and acts as he described them, was that she was consenting.

64 In the circumstances which I have described, I consider that the directions given by the learned trial judge in the first instance were appropriately tailored to the issue upon which the trial was focused. His Honour stated the elements of the offence, including the third element, and in doing so emphasised that the burden of proof in each instance lay on the Crown. Then he focused upon the area of controversy. Although, as a matter of legal theory, acceptance of the key aspects of the complainant's evidence to the criminal standard would leave open the possibility that the Crown might have failed to prove the third element of the offences, that possibility was distant from the trial as it had been fought. Particularly, in a criminal trial, where it is not in debate that experienced, competent counsel acted for the Crown and the accused, I respectfully consider that there is much to be said for more than lip service being paid to the celebrated observations in the joint judgment in the High Court in Alford v Magee.[22]

65 But then followed the jury questions. On one view, there were three of them. They are set down by Chernov JA at [10]. I respectfully agree with his Honour that several of the questions were not entirely clear in their meaning. Nonetheless, I think it is tolerably clear that the first and second of them addressed the third element of the offence, but that the third addressed the issue of the complainant's consent.

66 Confronted by the jury's questions, the judge had to decide what form his response should take. He was criticised before this Court for not giving short answers. For reasons which I shall later give, I do not accept that short answers were available; or, if they were, that they must have been given in preference to the course which the judge took.

67 In the event, his Honour fully re-directed as to the elements of rape. He rightly instructed the jury that it was necessary for the Crown to prove each element of the offence of rape, including the third element. He did not instruct the jury that, the case had been fought in a particular way, the jury did not need to consider whether the element had been proved. Further, it is clear that he was alive to the significance of the relevant jury questions. That is shown by his introduction to his re-direction on the third element:**

"In addition to a lack of consent on her part, as you obviously appreciate from the question on this topic, the Crown must also prove that the accused had the required guilty mind, and that is . . . the Crown must prove that he knew she was not consenting or might not be consenting . . . " (my emphasis)

**68 On the appeal, but not at trial, criticism was made of the adequacy of the re-direction concerning the third element. It was also submitted that the learned judge had foreclosed the jury's consideration of that issue by a later comment. In a moment, I will consider those matters. But this at least can be said: his Honour left the third element open as a matter for proof by the Crown.

69 As to the adequacy of the re-direction, it was no part of the written outline of counsel for the applicant that the re-direction was faulty because the judge did not relate the law to the facts. It was not argued that there had been any failure to comply with s 37(1)(c) of the Crimes Act 1958 (Vic). Neither did counsel at trial make any such submission.

70 Orally, however, counsel for the applicant submitted that there was a body of evidence which might have led to a conclusion, despite the jury accepting the burden of the complainant's evidence, that the Crown had not proved that the applicant was aware that the complainant was not consenting, or might not be consenting to his penetrating her. With the advantage of a 12 months' interval between trial and appeal, counsel for the applicant - who was not counsel at trial - listed a series of matters which, he submitted, left open the reasonable possibility that the applicant was not aware that the complainant was not consenting or might not be consenting. Most prominent were the following:

• The parties had been in a long-term relationship, followed by a three year casual relationship. They had been in contact in the few months preceding 3 April 2004.

• The complainant and applicant had engaged in sexual relations at times after their long-term relationship ended.

• The complainant and applicant had engaged in oral sex on previous occasions.

• The complainant had agreed that at the time of the alleged rape she had a back injury. This provided an explanation why the pair had engaged in oral sex.

• The complainant's account of what occurred immediately after the alleged rape, and what the applicant then said, was consistent with him believing that he had engaged in consensual intercourse.

• Even some days after the incident, the applicant was evidently unconcerned about what had happened, as shown by a cordial telephone conversation between he and the complainant.

• The complainant's account, that the applicant had said - "some on, one more time" was consistent with him not being aware that she was not or might not be consenting.

• On both the complainant's and the applicant's account of events, the complainant did not object to visitors leaving, the complainant and applicant then being left together.

• Before the alleged rape, as the complainant admitted, the applicant had kissed and sucked the complainant's breast.

71 Counsel for the Crown submitted that the matters mentioned by applicant's counsel did not address, in fact or by inference, the starkly different accounts of the critical event which had been given by the complainant and the applicant. Counsel did not accept that the matters were apt to raise an issue concerning the third element of the offence. He addressed the matters seriatim, submitting that each was equivocal.[23] Neither in isolation nor in combination was there a reasonable basis for an inference being drawn against the conclusion that the applicant was aware that the complainant was not, or might not be consenting. It was not irrelevant, in this connection, counsel submitted, that no exception had been taken at trial, either to the charge or the re-direction; whilst in any event the learned judge had left the third element for the jury's consideration.

72 In my opinion, it is at least doubtful whether, singly or in combination, the matters relied upon by applicant's counsel could have provided a basis upon which the jury might have concluded that the Crown had not made out the third element of the offence. Pressed, I would say that most, if not all, of those matters could not have provided any such basis. They were notable, with one exception, for the fact that they were not temporally related to the period immediately preceding, and the time of, penetration; and it was there that the complainant's evidence and the applicant's account were starkly in contrast.

73 It is notable also that applicant's counsel did not rely upon the simple fact that the applicant was able to put his penis into the complainant's mouth, and move to the point of ejaculation in a short time - circumstances which Nettle JA considers might reasonably have been believed by the applicant, in this case, to indicate the complainant's consent. His Honour's opinion depends upon his assessment that there was not much evidence of physical force or threat or intimidation connected with the penetration. To my mind, that assessment points up the significance of the issue on which the case was fought at trial. If the burden of the complainant's evidence had been accepted, I could not accept his Honour's assessment. But if (although he bore no onus of proof) the applicant's account had been accepted, there would have been no question of force, and no need to consider the implications of absence of force, because it would then have been a simple case of expressed consent.

74 But whether or not there was any evidence - except if the applicant's account was accepted, and then the prosecution must have failed for want of proof of absence of consent - which raised a reasonable possibility that the applicant was not aware that the complainant was not or might not be consenting to the act of penetration, the fact is that the judge did direct the jury that the Crown must establish the third element of the offence - both in his charge and in his re-direction. Further, he did so notwithstanding that no argument attended by the slightest detail had been addressed by the applicant's counsel upon the issue.

75 As I understand it, as I said earlier, the burden of the argument in this Court was not that the judge had not so directed, and re-directed, but rather that his re-direction had been wrong in form, wrong in law, and subverted by his later comment. Further, as I understand it, counsel's catalogue of the matters said to have been capable of bearing on proof of the third element of the offence was advanced in an attempt to persuade this Court that there had been material capable of enlivening that issue, this underscoring the significance of the judge's comment - which was said to have effectively withdrawn the issue from the jury's consideration. That is, to repeat something which I said earlier, it was not complained that the re-direction was deficient because the judge had not drawn attention to those matters in the context of the third element.

76 That leads on to consideration of the issues which were agitated. As to the first of them, what I have called the issue of form, I have already said that I do not agree that either of the two relevant questions could have been answered in short form. I consider that this was definitely not possible in the case of the second question, which invited uncertainty by its reference to "seriously objecting." But neither, and here I respectfully disagree with Nettle JA, was a short answer possible - or at least desirable - to the first question. That question was not framed in the language of awareness, or even belief, but of thought. It was non-specific in time. An appropriate answer also required, I consider, provision of a framework for analysis of the question of awareness. It should not have been assumed that the jury had formed the provisional view that the applicant thought that the complainant was consenting to his penetrating her. Moreover, I think that there must be left to a trial judge some latitude in the way a jury question is answered. His Honour took the view that a broad redirection was required. That was how he told the jury he would deal with the matter:**

" . .. I'll go back to the question of rape and I'll discuss in general terms what is meant by - or what is required before a rape is made out and that will cover, I hope, the specific questions that you raised."

**77 Thereafter, as I mentioned a little earlier, he highlighted the interrelationship between the jury question(s) and the third element of the offence.

78 I turn to the second issue which was agitated. It was submitted that the charge and the re-direction were inconsistent with what was said by this Court in R v Zilm,[24] and see, earlier, R v Ev Costa[25] and R v Munday.[26]

79 The learned trial judge, having given a direction that "reasonableness of belief" was "one of the ways in which you might determine the fundamental question, what was the state of mind of the accused at the time of the act of penetration", did not go on to give a direction that "the [applicant's] belief did not have to be reasonable as a matter of law and the Crown must prove that, in fact, he was aware that the complainant was not consenting or might not be consenting."[27] It was said in Munday that it will often be desirable to add the qualifying direction. But in Munday itself, a charge which did not contain that direction was held to have caused no risk that reference to reasonableness was determinative in the appellant's favour. The contrary conclusion was reached in Zilm, a case in which belief as to consent was a central matter in controversy,[28] in which the jury sought the judge's assistance more than once concerning the third element of the offence of rape, and in which there was complaint, sustained on appeal, that the trial judge had failed to sufficiently relate the law to the facts.

80 In the present case, I consider that the impugned direction and re-direction was adequate for three reasons. First, the learned trial judge repeatedly emphasized that the Crown bore the onus of proof in respect of the third element of the offence, which he paraphrased as proof that the applicant "knew that she was not consenting or might not be consenting", and as proof that "he was aware that she was not consenting or might not be consenting." Those directions emphasized proof of circumstances not dependent upon the reasonableness of a belief held by the applicant.

81 Second, acknowledging that several of the jury's questions were directed to the third element, there was little, if anything, that the judge could have pointed to, which might have suggested a possible want of awareness - other than if the complainant's evidence, so far as it touched on the element of rape, was not accepted to the criminal standard. To repeat what I have said earlier, whilst bearing in mind the fact that the applicant carried no onus, and that it was thus not a question of the jury choosing between competing versions, in a very real sense the case advanced for the applicant at trial, so far as it raised the third element at all, was a case that the complainant had in fact consented to the intercourse, for which reason the prosecution must fail. It was a necessary but irrelevant corollary that the Crown would then fail to prove the third element. But if the complainant's evidence touching the elements of the offence was accepted to the criminal standard, the substance of the applicant's account must have been rejected. It was unreal, in those circumstances, to imagine that the Crown should fail to prove the third element. To do so, the jury must have reasoned that, though in substance rejecting the applicant's only exculpatory account, the Crown had failed to prove the applicant's awareness that the complainant had not been, or might not have been consenting to penetration because of matters nowhere advanced at trial.

82 Third, no objection was taken to the direction or re-direction.

83 I go to the comment which his Honour made after giving his re-direction as to the elements of rape. The judge made it plain that it was a comment. At the outset of his charge, and at some length, he had differentiated between those parts of the charge which would bind the jury, and any comments which he might make. He had emphasized that any comments which he might make had "no persuasive power, or no binding power whatsoever."

84 The comment itself is set out in the reasons for judgment of Chernov JA at [10]. As his Honour observes, there was no objection to the re-direction, which included the comment. Neither, I add, did the re-direction, including the comment, occasion any further question from the jury - even though the judge invited the jury to raise "any further queries" with him.

85 Nettle JA is of opinion that the comment was faulty in three respects. I respectfully disagree.

86 The first of the matters mentioned by his Honour is that, at odds with the judge's statement that defence counsel had not put to the jury that it could accept the claimant's evidence and still not be satisfied of guilt beyond reasonable doubt, counsel had twice put submissions to such effect. It is true that counsel for the applicant at trial did submit that the jury could not find the third element proved. But the first time such a thing was said it was, with respect, said in a passage which is extremely difficult to understand; whilst the second occasion occurred towards the end of a long submission which focused upon there being "two versions", and upon reasons why the complainant's version should be rejected - or at least not accepted to the criminal standard.

87 The second matter to which Nettle JA adverts depends upon there being a possible view of the facts, regardless what defence counsel did or did not submit, upon which the jury might have accepted the complainant's evidence and yet not have been satisfied that the applicant was not aware that she was not consenting or might not be consenting. The only circumstance which his Honour identifies is the fact that the applicant's penis entered the complainant's mouth, and remained there for a short time to the moment of ejaculation. For reasons which I have given previously, I cannot accept, if the complainant's evidence was accepted, that this circumstance provided reason why the Crown should fail to prove the third element of the offence. Further, for reasons earlier indicated I do not accept that the matters catalogued by counsel for the applicant on the appeal stood in the way of proof of that issue in the event that the complainant's evidence was accepted.

88 Nettle JA, thirdly, considers that the comment had the effect of wrongly foreclosing the jury's consideration whether the Crown had proved the third element. For three reasons, I respectfully disagree. First, the trial judge identified what he said as a comment; no more. Second, on a number of occasions his Honour very plainly stated the burden on the Crown to prove each element of the offence. Third, the comment accorded with the way in which the case had been conducted - as a competition between "two versions."

89 For the reasons which I have given, I agree with the conclusion of Chernov JA concerning ground 4 on the conviction application. It follows that I would dismiss the applications for leave to appeal against conviction and sentence.**

[5] See, for example, R v Clarke and Johnstone [1986] VicRp 64; [1986] VR 643, 662; R v Gallagher [1998] 2 VR 671, 681 (Brooking JA); R v GAM [2003] VSCA 185, [10]-[11] (Winneke P); R v Demiri [2006] VSCA 64, [29] (Redlich JA).

[6] (1995) 78 A Crim R 531. In that case the Crown eschewed any reliance on past conduct of the accused who was charged with threatening to kill his wife.

At a glance

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Judgment (217 paragraphs)

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Cases Cited (11)