R v Demiri [2006] VSCA 64

Court of Appeal (Vic)|2006-03-17|Before: MAXWELL, P, BUCHANAN, JA and REDLICH, AJA

Criminal law - Conviction - Rape - Whether charge unbalanced - Failure to summarise defence arguments.

Rule in Browne v Dunne - Rule of professional practice - Counsel referring to obligation in jury presence - Explanation for rule given to jury - Direction appropriate.

Mr S Carisbrooke, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading in draft the reasons for judgment of Redlich, AJA. I agree that, for the reasons which his Honour gives, the application for leave to appeal should be allowed, the conviction quashed and a new trial ordered.

2 I would grant the application for leave to appeal against conviction for the reasons stated by Redlich, AJA.

3 On 21 January 2005, on the fifth day of a trial in the County Court at Melbourne, the applicant, who was born on 29 December 1976, was found guilty by a jury of two counts of rape. At the trial it was disputed that the applicant penetrated the complainant on the occasion alleged in count 1, and the applicant maintained that the complainant had consented to intercourse. The applicant seeks leave to appeal against those convictions. On 1 March 2005, the applicant was sentenced to five years' jail on each count, with one year of the sentence imposed in respect of count 2 made cumulative upon the sentence imposed on count 1, making a total effective sentence of six years' imprisonment. The applicant was ordered to serve a minimum of four years before becoming eligible for parole.

4 A brief summary of the facts giving rise to the application is necessary.

5 On the evening of 1 March, the applicant, together with friends and relatives, assembled at the applicant's parents' home to celebrate his forthcoming marriage the following Saturday, 8 March. According to the applicant's record of interview, he consumed 8 to 10 scotches and coke at home. He described his condition as "a little bit tipsy". Some time after midnight the applicant and some of his friends left his parents' home and went to the Brass Monkey Nightclub at Fountain Gate shopping centre complex at Narre Warren.

6 The complainant attended the Brass Monkey nightclub on the night of 1 March 2003 at about 9.45 pm. Over the course of the night she consumed 10 bourbons mixed with coke. At some time during the night, she met the applicant whilst inside the nightclub but has no recollection of speaking to him whilst inside.

7 The applicant saw the complainant inside the nightclub and thought that she was drunk. She was having difficulty standing up and he could not understand what she was saying.

8 Mulligan, a security guard, observed the applicant inside the nightclub holding up the victim against the wall and kissing her. She did not appear to be responding. Her arms were hanging limply by her sides. The applicant was pressing his body against her. As Mulligan believed that the female was half asleep or drug affected, he approached Laoumtzes, a female security guard, for the purpose of escorting the victim off the premises.

9 The applicant told one of the security guards that he was the complainant's boyfriend and put his arms around the complainant to support her. According to one of the security guards, the complainant could hardly walk at all. The applicant repeated his claim that he was her boyfriend, and that he would take her to a taxi. The complainant needed support to be able to walk.

10 The complainant was escorted out of the nightclub by Laoumtzes, with the applicant by her side. The applicant and complainant walked down a path to an alcove area arm in arm. Two security guards, Rubins and Hiini, observed the couple intoxicated and moving towards the alcove.

11 The complainant's next memory was of lying on her back in the alcove area. She noticed that the applicant was either undoing his or her own pants. She was slipping in and out of consciousness at the time. The security guards shortly thereafter went to the alcove. Rubins shone a small mag light torch into the alcove and saw what appeared to him to be a couple fornicating. The female was on the ground and her left leg was raised. He saw a man naked but for his pants which were around his knees. The man's penis was inside the woman's vagina. Hiini saw what he believed was a male on top of another person making thrusting movements. Rubins called out, asking if everything was alright, to which he received a grunt and a faint moan, "just sort of more like a sigh". The complainant could recall no penetration at this time. This constituted the first count of rape.

12 When the complainant awoke, the applicant was on top of her and her jeans and underwear were around her knees. The complainant asked the applicant to use a condom. She testified that she knew what the applicant was going to do and was afraid of either becoming pregnant or contracting AIDS. She testified that she was in no position to stop the applicant as she was constantly blacking out and she was on her back and pinned underneath the applicant. She recalled the applicant speaking to someone in a foreign language and then saying, "Stop annoying me, I'm trying to fuck her."

13 A group of males, who were relatives or friends of the applicant, called out to the security guards and said that the two were boyfriend and girlfriend. Rubins told one of the males to get them out, and the man went into the alcove. Rubins saw the applicant get up, pull his pants up and move from the alcove. He appeared to have an argument with the man who had entered the alcove.

14 The applicant asked his cousin for a condom but his cousin said he did not have one. At the time the request was made, the cousin was not very far from the bushes. A security guard said to the applicant, "You've got another 10 minutes. Hurry up and get out of here". When the applicant went and spoke to another male, the complainant attempted to stand but could not. She was sitting in the bushes. The applicant returned, and the complainant said "No", and then blacked out.

15 When she awoke she felt a penis inside her vagina. She testified that she had not wanted this to happen. Rubins and De Boer (another security guard) then came over as the couple still had not left. Rubins heard the girl saying "Help me, help me". He saw the applicant was in the alcove but not dressed. De Boer heard a female voice saying "No, no, no" and saw a female being dragged back behind the bushes, but could not see by whom. When the security guards arrived, the applicant walked out of the bushes and left the complainant. Rubins shone his torch in and saw the victim with her face in the ground and clothes dishevelled. He asked if she was "OK", and received moans and groans in response. Rubins left the complainant with De Boer and went to locate the two men he had seen.

16 De Boer saw the girl was lying face down and appeared unconscious. When De Boer questioned the complainant, she was incoherent and on the verge of unconsciousness. Her jeans were pulled down and he could observe her buttocks area where there was blood coming from around her anus. Her mouth was in the tan bark and was open. She was lying face down on the bark. There were scratches on her right shoulder blade and her bra strap had been snapped. De Boer rolled the complainant over to establish if she was alive. De Boer informed the complainant that he was a security officer, and the complainant said she hoped that she could trust him. He asked her name and if she had wanted to have sex with the man. She said she had not. She said she did not know him, was afraid of being pregnant and was only 21. De Boer walked her out of the alcove where she was met by Senior Constable Meyers.

17 Meyers observed the complainant to be extremely intoxicated. He accompanied her in the ambulance to hospital and during the journey the complainant told him that "He stuck his dick in me. I didn't want it, it hurt. I don't know him." She told Meyers that she had not wanted the applicant to do it but that she had given up because he was too strong and on top of her and had therefore said "condom". Whilst she was in the police van, Cielens, an ambulance paramedic, attended to her, at which time she told him she had been sexually assaulted.

18 The applicant was interviewed on 3 March 2003. He claimed that the complainant had suggested that they go into the bushes and had initiated sexual contact in the garden area. He alleged that the complainant had pulled down his pants and had oral sex with him. The applicant told investigators that, when he initially inserted his fingers into the complainant's vagina, she had said that was "OK". She had asked him to be gentle because it was hurting her. The applicant claimed that he only once inserted his penis into her vagina "a small way".

Grounds 1 and 2

19 Ground 1 asserts that the conviction on count 1 was unsafe with respect to the element of penetration. Ground 2 asserts that the fact that the conviction on count 1 was unsafe renders the conviction on count 2 unsafe.

20 The question raised by these grounds of appeal is whether, within the first limb of s. 568(1) of the Crimes Act, the verdict of the jury on one or both counts should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[1] The applicant's argument is that there was insufficient evidence to establish beyond reasonable doubt the element of penetration. The ultimate question is whether this Court is able to conclude that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.[2]

21 As the applicant may have to be retried it is undesirable to say more than is necessary to dispose of these grounds. The evidence of Rubins and Hiini, and the answers of the applicant in his record of interview, constituted evidence upon which it was open to the jury to be satisfied beyond reasonable doubt that penetration had occurred in relation to count 1. That conclusion is sufficient to dispose of both grounds 1 and 2.

Ground 3

"The directions of the learned judge were unbalanced in that they gave excessive prominence to matters said able to be regarded as supporting evidence for the version of the complainant namely:

(i) distress,

(ii) witnesses Rubins and Hiini,

(iii) hearing by witness De Boer of 'help me, help me',

(iv) hearing by witness De Boer of 'no, no, no'."

"The directions of the learned judge were unbalanced in that they failed to put adequately defence arguments and associated evidence concerning:

(1) distress;

(2) witnesses Rubins and Hiini;

(3) words 'help me, help me';

(4) manner of applicant and complainant as they walked together and spoke;

(5) complainant requesting condom;

(6) complainant giving applicant her name;

(7) applicant's knowledge of presence of security guards."

22 The gravamen of grounds 3 and 4 was that the judge emphasised the "evidence in support" of the complainant's account but did not give countervailing evidence any or any equivalent prominence. The matters said to have been given excessive prominence are identified in ground 3, whilst the matters which ought to have been given equal prominence are identified in ground 4.

23 These grounds contain specific illustrations of the submission that was made, that the defence case was not adequately dealt with in the trial judge's charge. Save for the trial judge's summary of parts of the applicant's record of interview, that part of the defence case which rested upon the testimony of prosecution witnesses received little attention in the charge. It was submitted that the trial judge did not emphasise the differences between the observations made by the witnesses Rubins and Hiini respectively. Specifically, it was submitted that the observations of the witness Hiini were consistent with the complainant having been on top of the applicant. If correct, these observations undermined the force of Rubin's testimony as to evidence of penetration in support of count 1, and supported the account given by the applicant in his interview.

24 It was further submitted that the trial judge should have explored the competing explanations for the evidence that the complainant was heard saying "Help me, help me"; that no attention was given in the charge to the evidence of the applicant and the complainant being observed walking with their arms around each other, or to the conversation between the applicant and the complainant which bore upon the applicant's state of mind; that the trial judge had failed to refer to the significance attached by the defence to the complainant's reference to a condom and its importance to the question of the applicant's state of mind; and that the charge should have dealt with the defence case that the applicant was aware that security guards were in the immediate neighbourhood of the alcove before and during the period when the offences were alleged to have been committed. That evidence, it was submitted, was critical to the questions of consent and the applicant's state of mind.

25 The trial was a short one. Defence counsel had addressed the jury for a large portion of the day preceding the jury's retirement and their return of a verdict of guilty, and had covered these matters in his address. The matters raised under ground 4 were not referred to during the course of the charge. Nor did the trial judge summarise the arguments of either party.

26 The failure to summarise the arguments of the parties will frequently be viewed as a deficiency.[3] But there is not, nor can there be, an inflexible rule as to when a failure to do so will give rise to a miscarriage of justice.[4] Where it is not done the obligation to refer to the essential features of the defence, and the evidence which relates to it, assumes even greater importance in the charge.[5] In Domican v. R.[6] the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

" ... [T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way."

27 No request was made that the trial judge refer to these matters in a further direction. The failure by extremely experienced counsel to complain that the charge was unbalanced, and did not fairly present the defence case, is a matter of particular significance.

28 Most of the grounds raised by this appeal involve matters which were not the subject of any exception. In R v MAG, Winneke, P. stated:

"Generally speaking, a failure to take exception to directions given at trial (in particular where trial counsel is experienced) is an indication that no injustice was seen to flow from the directions given that the point which appears impressive on appeal had no significance or no real significance at trial."[7]

29 The failure to take exception provides a strong indication that, in the atmosphere of the trial, counsel did not perceive any injustice or deficiency in the charge.[8] In view of the conclusion reached in relation to ground 5, it is unnecessary to say anything further about these grounds alone.

Ground 7

"The learned Judge erred in charging the jury by stating that counsel for the applicant in the 'puttage' contained in cross-examination of the complainant was discharging his ethical obligations."

30 On two separate occasions during cross-examination of the complainant, and in the jury's presence, defence counsel raised the question whether he had sufficiently put to the complainant the allegations made by the applicant in his interview. Having put positively to the complainant in cross-examination on a number of occasions some of the facts asserted by the applicant in his interview (which the complainant denied), counsel for the applicant then said:

"Your Honour, in relation to - I don't know whether it is the way I'm putting it. She's already answered a question about oral sex. There are other matters I want to put to her, but she denied being involved in it, so I'm not going to put it, because my client in his record of interview talks about certain matters so I'm not going to put it to her now, because she's denied it's occurred, your Honour.

His Honour: Yes. The Browne v Dunn point you're raising?

Mr Kaufman: That's right, yes. I don't want to be in a position if I didn't put it to her, because she's denying it.

His Honour: Yes."

Very shortly before concluding his cross-examination, defence counsel further said:

"Your Honour, before I resume my seat, I just want to repeat: there are a lot of matters in the record of interview, I don't want to be met by 'they haven't put certain matters to her about the encounter in the alcove', your Honour.

His Honour: I don't, subject to what Mr Hennessey might put, as I said earlier, I think you have fulfilled your obligations, that's all.

Mr Kaufman: Yes. I just wanted to cover the matters in the record of interview, your Honour, and put to her, which I have done."

31 In his charge the trial judge gave the jury various directions of law. He then told the jury that he intended to refer to some of the evidence that related to each of the elements of the crime of rape and that, as he did so, he would seek to summarise the way in which the Crown and the defence put their respective cases. His Honour then referred to various parts of the complainant's evidence-in-chief and cross-examination. His Honour reminded the jury of the cross-examination in which it had been suggested to the complainant that the applicant had placed two fingers in her vagina and that the complainant had asked him to be gentle. His Honour reminded the jury of the complainant's answers to those questions. Immediately after referring to that cross-examination, his Honour said:

"Two things arise from this. First of all you will recall I put to you earlier that no matter how forcefully the suggestion was made, it is the answer that counts, so the evidence is, no, she does not agree that Demiri's fingers were placed in her vagina. She does not agree that she ever said, 'I'm going to suck you off' - there's no evidence of that. The second thing is you might recall that these are things which Mr Demiri referred to in his interview with the police, and you might recall a passage where Mr Kaufman asked me was it necessary for him to go any further and I said, 'Well, in effect, no, you have fulfilled your ethical obligations'. The significance of that is that obviously Mr Kaufman has heard the record of interview and he is ethically obliged to put to Ms [the complainant] what his client has said to the police in the interview, so that she is appraised of what he said and is given the opportunity to make a comment up (sic)."

32 Shortly after this direction, the trial judge told the jury that defence counsel relied upon the answers which the applicant had given to the police, and that the applicant's answers constituted part of the evidence that the jury was obliged to take into account for the purpose of determining whether or not the complainant had consented to intercourse. His Honour further told the jury that the applicant's answers must be considered by the jury when determining whether they were satisfied beyond reasonable doubt that, at the time of penetration, the applicant knew that the complainant was not consenting or might not be consenting. His Honour then took the jury to various parts of the applicant's interview. His Honour concluded that part of his charge by telling the jury that the defence said that the applicant's answers were highly relevant to the question of whether the applicant believed that the complainant was consenting.

33 At the conclusion of this section of his Honour's charge, defence counsel raised some exceptions to his Honour's charge, but the impugned direction was not the subject of complaint until much later in the day. When exception was subsequently taken to the trial judge's reference to the "ethical obligation" of defence counsel, it was submitted that the jury should be recharged on that point because what had been said would have indicated to the jury that defence counsel did not necessarily believe what the applicant had said in the interview. Counsel for the applicant submitted to the judge that the rule imposed a legal rather than an ethical obligation, and that the charge may have conveyed to the jury that counsel was merely "going through the motions" in putting his client's allegations but had no belief in the truth of those allegations. It was said that the comment had the effect of undermining the credibility of the applicant's answers.

34 His Honour then pointed out that defence counsel had sought an indication during the course of cross-examination as to whether the cross-examination had sufficiently dealt with the applicant's allegations raised in the record of interview, so as to comply with the rule in Browne v Dunn. The trial judge said that he did not consider that his remarks had in any way undermined the answers given by the applicant, or the defence case, but had provided the jury with an explanation of the manner in which the cross-examination had been pursued. His Honour indicated his willingness to redirect the jury by describing the obligation as "legal" rather than "ethical". After further considering the position, defence counsel submitted that no redirection would cure the problem. He therefore did not seek a redirection. No application was made to discharge the jury.

35 The rule in Browne v Dunn is a "rule of law and practice",[9] sometimes described as a "rule of professional practice".[10] The dangers attendant upon a direction in a criminal trial about non-compliance with the rule in Browne v Dunn are well-recognised.[11] The High Court recently confirmed that, having regard to the essentially accusatory character of a criminal trial, the rule can only be applied with serious qualifications.[12] In the present case, there is no suggestion that counsel did not comply with the rule. The impugned direction involved an explanation to the jury of the rationale for the existence of the obligation. It was precisely because defence counsel, in the jury's presence, had twice referred to his obligation to put to the complainant the allegations raised by the applicant in his interview that an explanation of the rule was warranted. It would otherwise have been unnecessary for the judge do so.

36 In the context of the cross-examination of a prosecution witness, the rule of law and practice is necessary to give the witness the opportunity to deal with such evidence - or such inferences as may be drawn from the evidence - as the accused proposes to rely upon and which contradict the testimony of the witness. Such a challenge to the witness's testimony is also essential to the jury's understanding of what facts are truly in issue. It enables the jury to make an assessment of the credibility of the witness in relation to those issues.[13] In a civil case, compliance with the rule is also necessary in order to give the opposing party the opportunity to call other evidence to answer the allegation.

37 His Honour's explanation of the reason for the rule was appropriate. While it would have been preferable if his Honour had referred to the rule as one of professional practice, nothing turns on the fact that his Honour spoke of an ethical obligation. An examination of the form and substance of the complainant's cross-examination - a substantial portion of which was repeated by the trial judge in his charge, immediately before the impugned direction - makes plain that defence counsel was challenging the veracity of the complainant's account on the basis that the events had occurred as the applicant had explained in his interview. There is no substance in the contention that the impugned direction may have conveyed an impression to the jury that defence counsel did not believe the account given by the applicant in his interview. Ground 7 fails.

Ground 5

"The directions of the learned judge on recent complaint erred in that they failed:

(i) to make sufficiently clear that it did not provide evidence of the facts stated in it;

(ii) to state sufficiently that the jury had to determine, firstly, whether the complaint was made, and if so, in what circumstances, and if made, whether it pointed to the consistency of the evidence of the complainant;

(iii) to state that the jury had to consider whether it might go to show that the complainant had reacted in a manner which might be expected of her if she had been subjected to the acts of the nature alleged;

(iv) to state that if the jury found that the alleged complaint was made, they might take the making and contents of that complaint into account as one of the circumstances to be considered when assessing the reliability of the complainant;

(v) adequately to identify to the jury the words and their occasions capable of compromising the complaint;

(vi) to direct the jury that it was a matter for them to determine whether the complaint, if there was one, was spontaneous and at the first opportunity reasonably available."

38 In relation to evidence of complaint, his Honour told the jury:

"The next topic I want to go to is this. In this case evidence has been given by witnesses, for example, Mr De Boer, the policeman Meyers, the ambulance officer Cielens, of what [the complainant] said to them shortly after they happened upon the scene. You will recall that in short [the complainant] told him (sic) that there had been a sexual assault at that particular place and that she did not want that to happen. The relevance of that evidence in this case, that is to say the relevance of her making these statements is simply this. It is offered by the prosecution as being a piece of evidence that is consistent with what she says having occurred. On the other hand it may well be - and it is not the case here but sometimes in a case such as this a person who is said to have been sexually assaulted does not make a complaint to any one, and the law says in those circumstances the fact that they do not make a complaint does not mean that nothing happened. The fact that a complaint is made - if you find that it was made, if you find that it was in the substance in which the witnesses speak of - it is relevant only to your assessment as to whether or not [the complainant] is plausible. The law says does it buttress this, does it support her credit? The Crown says to you, urges you, well, it is consistent with what she says happened some 10, 15 minutes or shorter time beforehand. That is the evidence which those witnesses gave as to the conversation that they had with [the complainant] shortly after they happened upon the scene. When you consider that evidence of course you will bear in mind that it comes from the same source; that is to say it is [the complainant] as it were repeating what she says happened. It is not independent. It is not as if it is someone - (indistinct) a different character, such as the evidence of Mr Rubins. I'll give you by way of example where Rubins said, 'I shone the torch. I saw penetration'." (emphasis added)

39 Mr Kaufman, who appeared with Mr Just for the applicant, submitted that the directions as to evidence of complaint were entirely unsatisfactory and fell short of the directions which were required. In amplification of that argument, counsel relied upon the oft-quoted passage from the judgment of the Full Court in R v Freeman and Ors:[14]

"If the circumstances in which the alleged complaint was made are such that the learned trial judge concludes that the complaint was not made at the first reasonable opportunity after the event he would exclude it. If he concludes that it was made in circumstances which remove from it those characteristics which mark it as a complaint he will exclude it.

If he admits it, he will tell the jury that it is admitted only for their consideration as throwing light on the credibility of the prosecutrix insofar as it shows consistency in her account of the event and the kind of reaction ordinarily to be expected of a victim of such an incident as she complained of. He will have to tell the jury that it does not provide evidence of the facts stated in the complaint, and further, that the jury has to determine, firstly, whether the complaint was made, and if so, in what circumstances, and if made, whether the complaint points to the consistency of the evidence of the prosecutrix. The jury will have to consider whether it might go to show that the prosecutrix has reacted in a manner which might be expected of her if she had been subjected to the acts of the nature alleged. The jury will have to be told that the evidence as to the complaint is relevant only to the consistency of her conduct after the event, that it does not in any way at all assist to prove the truth of the facts alleged, and that those facts must be proved by other evidence. If the jury find that the alleged complaint was made, they may take the making and contents of that complaint into account as one of the circumstances to be considered when assessing the reliability of the prosecutrix." (emphasis added)

That statement has recently been affirmed by this Court. It remains an instructive guide as to what the law requires.[15]

40 First, it was submitted that the direction failed to instruct the jury that they must determine whether the complaint was made. There is no substance in that contention. His Honour made plain to the jury that it was a question for them whether they found that the complaint was made. Even if no such direction had been given, the obligation upon a trial judge is only to give such directions as are "necessary and practical in the circumstances of the case to avoid a perceptible risk of miscarriage of justice".[16] None of the witnesses who gave evidence of the complaint was challenged as to his/her testimony. The complainant, who had no recollection of what she said to any of those persons, was not cross-examined as to what she told any of them. In the context of this trial, it had not been put in issue that the complainant had said what was alleged.

41 Secondly, it was submitted that his Honour's direction was inadequate because his Honour did not remind the jury of the words used which were said on each occasion to constitute the complaint. It was submitted that this failure was serious because there were variations in what the complainant had said and some of the things she had said were not consistent with the acts she alleged.

42 The degree of specificity with which a trial judge must refer to the content of a complaint will depend upon the circumstances of each case. For example, where the content of the complaint has not been put in issue, and it is not suggested that the content is inconsistent with the acts alleged by the complainant, it would ordinarily not be necessary to remind the jury of the precise words used. That was the position in the present case. The cross-examination of the complainant and of other prosecution witnesses did not suggest any material variation between her complaints, nor any inconsistency between her complaints and the acts which she alleged. (We did not have the benefit of a transcription of closing addresses but it was not submitted that such matters had been raised in closing argument.) In these circumstances, it was not incumbent upon the trial judge to deal with the complainant's utterances in any more detail.

43 Thirdly, attention was drawn to the fact that the jury had not been directed to determine whether the complaint made was "recent". Counsel for the applicant submitted that such a failure was serious because spontaneity and "first opportunity" were real issues. We were informed that the trial judge had ruled upon the admissibility of some of the complaint evidence. The applicant has not sought to appeal against that ruling. It does not appear to have been contended during the trial that the complaints that were admitted into evidence were not spontaneous, or were not made at the first opportunity, nor is it apparent how such a contention could realistically have been maintained. No exception was taken to his Honour's direction on this point.

44 In R v GG, Eames, JA, with whom Warren, CJ and Batt, JA agreed, left open the question whether a trial judge might admit evidence of complaint where it was merely capable of being found by the jury to have been made at the first reasonable opportunity.[17] His Honour was not persuaded that a jury was under an obligation to determine that the complaint was made at the first reasonable opportunity before they could use it to test the credibility of the evidence of the complainant. The question of admissibility was for the judge to determine.[18] In R v Stoupas[19], Winneke, P., in dealing with the evidential effect of a delay in complaint, stated:

"... [I]t is not the law that a failure to complain by a sexual assault victim for two weeks, or longer, amounts to evidence which casts doubt on the victim's credibility. Indeed, on the assumption that such a delayed complaint is admitted into evidence (and, not infrequently, the first complaint is one made to the police) the jury should, in appropriate cases, be told that such failure or delay may, but does not necessarily, cast doubt on the complainant's credibility: See Crofts v. R. [1996] HCA 22; (1996) 186 CLR 427. Indeed, in cases where it is suggested that there has been such a delay, s. 61(1)(b) Crimes Act now imposes an obligation on the trial judge to warn the jury that such a delay does not necessarily indicate that the allegation is a false one and to inform the jury that there may be good reasons why the victim of a sexual assault may hesitate in making complaint. (emphasis added)[20]

45 Where the evidence has been admitted, and an issue arises as to the recency of the complaint and whether it was made at the first opportunity, the jury should be directed in accordance with Stoupas. In the present case, however, there was no issue as to whether complaint was made at the first reasonable opportunity. Accordingly, there was no deficiency in the direction given.[21]

46 None of these alleged errors in the complaint direction was a matter of controversy in the trial, nor was any such error relied upon in support of any defence argument. One should not lose sight of the fact that a trial judge need direct a jury only as to that part of the law which it is necessary for the jury to know[22]. A trial judge is not obliged to give directions about matters which are not in issue.[23]

47 It was, however, of fundamental importance that the jury be directed fully and correctly about the use to which complaint evidence could - and could not - be put. On the applicant's behalf, it was submitted that the complaint direction was defective as the trial judge omitted to instruct the jury that the complaint could not provide evidence of the facts stated in it. Those facts - penetration and consent - were squarely in issue. It was submitted that there had been no compliance with the requirement - formulated in Freeman and approved in MAG - that the jury be told that the complaint did not in any way prove the truth of the facts alleged.

48 In Stoupas, Winneke, P. stated that such evidence was relevant to the credit of the complainant by "showing a consistency between the manner in which she reacted at the time and her evidence in court",[24] whereas Hayne, JA referred to complaint evidence "as being evidence consistent with the truth of the evidence which he or she gives".[25] In R v Munday,[26] the trial judge directed the jury that complaint evidence was "not to be regarded as independent evidence" nor as evidence "giving additional support to the probability that the offence occurred", and that its "only effect is upon the consistency of conduct by her". It was "not evidence of the truth of the contents". Ormiston, JA, with whom the other members of the Court agreed, concluded that the direction was adequate, as it had sufficiently made clear that the evidence could be used merely to test the consistency of the victim's account of the alleged crimes, as given by her in evidence.[27]

49 In R v GG, the direction was held to be adequate even though the judge omitted to warn that the complaint was not evidence of the truth of its contents. The trial judge had said:

"In considering the evidence of complaint, you should bear in mind that, of course, it springs from the same source as the evidence of the crime. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of the complainant, giving additional support to the probability that the crime happened. Its only effect is upon the credibility of the complainant's story."[28]

Likewise in R v TSR,[29] this Court rejected an attack upon a direction given in almost identical terms to that given in R v GG.

50 The directions given in GG and in TSR emphasised the relevance of the evidence to the "credibility" of the complainant's account, and warned that the complaint evidence did not bear upon "the probabilities that the crime happened." Unlike the direction in Munday, however, neither direction stated that the complaint was "not evidence of the truth of its contents".

51 In the present case, the trial judge failed altogether to identify for the jury the prohibited use of complaint evidence. He did not say that the complaint evidence was "not evidence of the truth of its contents," nor that "the evidence is not to be treated as giving additional support to the probability that the offence took place". The deficiency in this regard was compounded by the direction that the evidence was relevant only to the jury's assessment of whether the complainant was "plausible". The use of that word, in the absence of either of the phrases to which I have referred, raised a real risk that the jury would - impermissibly - treat such evidence as bearing upon the probabilities that the offences took place.

52 This is not a mere linguistic quibble. Where evidence may be used by a jury for a limited purpose only, and may not be used for the purpose of determining whether the charged acts occurred, it is essential that the jury be directed as to both the permitted use and the prohibited use of the evidence. Unless the direction contains both elements, it will almost always be fatally flawed as a result. Exactly the same is true of the direction which must be given with respect to evidence of uncharged acts. As this Court has repeatedly stated, there are three necessary parts to such a direction.[30] A failure to include the third part of the direction - the propensity warning, dealing with the prohibited use of such evidence - was recently held to found a successful appeal against conviction.[31]

53 The danger that the jury would misuse the complaint evidence was heightened by his Honour's treatment of the evidence relating to distress. Immediately upon concluding the direction as to the evidence of complaint, his Honour commenced to direct the jury with the words, "Similarly there was evidence", and proceeded to deal with the evidence of the complainant's distress.

54 In contradistinction to complaint evidence, evidence of distress is capable of constituting corroboration of the complainant.[32] It is evidence which does bear upon the probabilities that the offence(s) took place. The cases recognise that distress may be contrived or simulated but accept that independent evidence of observations of stress may in certain circumstances amount to corroboration, despite its incongruity with the essential notion of corroboration as confirmation from a source independent of the person to be corroborated.

55 In the present case, after referring to the evidence of distress, his Honour told the jury that it was a matter for them to consider the significance of that evidence and to determine what weight they would attach to it. The trial judge treated the evidence of the complainant's distress as capable of corroborating of her account of what had occurred. He alerted the jury to the risk that it might be contrived, by drawing the distinction between a complainant who is aware that she is under observation and a complainant who is not conscious of being observed. His Honour then told the jury that he was moving to another "topic".

56 The direction on the evidence of distress was unexceptionable. But it is essential that a jury direction distinguish clearly between complaint evidence and evidence of distress, given that one may be relied on to support the testimony of the complainant, while the other may not. In the present case, there is a very real risk that the jury viewed the evidence of complaint and the evidence of distress as part of the one "topic" and, hence, as being capable of being used for the same purpose.

57 The failure to give the jury an adequate direction in relation to the evidence of complaint, whether viewed in isolation or in conjunction with the deficiencies identified in ground 3 and ground 4, has occasioned a miscarriage of justice. Accordingly, the application for leave to appeal should be allowed, the conviction quashed and a new trial ordered.

[1] MFA v R (2002) 77 ALJR 139 at 144 para. 25 and 147-8 para. 46.

[2] M v R [1994] HCA 63; (1994) 181 CLR 487 at 494-5.

[3] R v De Zilwa [2002] VSCA 158; (2002) 5 VR 408.

[4] Van Leeuwen v R (1981) 55 ALJR 726 at 725.

[5] RPS v R (2000) 194 CLR 260 at [41]; R v Anderson, [1996] VICSC 17; [1996] 2 VR 663; R v Crockett [2001] VSCA 95; R v. Soldo (2005) VSCA 136; R v Cummins [2004] VSCA 164; (2004) 10 VR 15 at [41]; R v Schmahl [1965] VicRp 95; [1965] V R 745 at 748-9.

[6] [1992] HCA 13; (1992) 173 CLR 555.

[7] Supra para. 25; R v Defrutos [1998] 2 VR 589 at 600 per Callaway, JA; R v Wright [1999] VSCA 145; [1999] 3 VR 355.

[8] R v Clarke and Jonston [1986] VicRp 64; [1986] VR 643 at [661]- [662]; R v Osland [1998] 2 VR 636 at [651]-[652]; R v GG, supra, para. 59 per Eames, JA; R v Kotzmann [1999] VSCA 27.

[9] Zoneff v R (2000) 200 CLR 234 at [49].

[10] Browne v. Dunn (1893) 6 R 67 at 721; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623 per Hunt J; MWJ v R (2005) HCA 74 [17] per Gleeson, CJ, Heydon, J.

[11] R v Manunta (1989) 54 SASR 17 at [23] per King, CJ; R v Birks (1990) 19 NSWLR 677 at [691] per Gleeson, CJ.

[12] MWJ v R, supra, at [41] per Gummow, Kirby and Callinan, JJ.

[13] Reid v. Kerr (1974) 9 SASR 367 at [373]-[374] per Wells, J.

[14] [1980] VicRp 1; [1980] VR 1 at 6.

[15] R v MAG [2005] VSCA 47 [9]-[11] per Winneke, P. with whom Chernov, JA and Cummins, AJA agreed; see also R v AJS [2005] VSCA 288 para. 63-4.

[16] R v Miletic [1997] 1 VR 593 at [605]-[606]; R v GTN [2003] VSCA 38 at para. 56, para. 61; R v GG [2004] VSCA 238 at para. 52 per Eames, JA.

[17] [2004] VSCA 238 para. 39.

[18] Supra, para. 54.

[19] [1998] 3 VR 645.

[20] Stoupas at [653]-[654].

[21] Compare R v MAG where the complaint should not have been viewed as "recent". Supra, para 10.

[22] RPS v R (2000) 199 CLR 260 at [41].

[23] Alford v. Magee [1952] HCA 3; (1951-2) 85 CLR 437 at 466; R v Pope [2000] VSCA 68 [13] per Callaway JA.

[24] Supra at 651.

[25] Supra at 656.

[26] [2003] VSCA 189.

[27] Para 27.

[28] Supra para 64.

[29] [2002] VSCA 87; (2002) 5 VR 627 at [53].

[30] See R v Vonarx [1999] 3 VR 618; R v Grech [1997] 2 VR 609.

[31] R v BAH (No.2) [2005] VSCA 197.

[32] R v Flannery [1969] VicRp 72; [1969] VR 586 at 592; R v Schlaefer (1984) 12 A Crim R 345 at 352-4; R v Mathe [2003] VSCA 165 [48].

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Cases Cited (15)