R v Eastwood [1998] VSCA 42

2. The applicant, who is aged 44, was convicted in the County Court at Morwell in April last of two counts of indecent assault (count 1 on the presentment, as charged and count 2 on the presentment, as an alternative verdict to a count of rape as charged). These offences which each carried a maximum penalty of ten years' imprisonment were allegedly committed at Traralgon during July and August, 1993. There was a third count on the presentment, that of anal rape upon "GS" and the applicant was acquitted on that count of rape and of an alternative verdict of indecent assault. As to count 2 and count 3, the Judge directed the jury that there was insufficient evidence to support a finding that sexual penetration had taken place.

5. After hearing a plea for leniency, the learned Judge sentenced the applicant to be imprisoned for nine months on each count and directed that six months of the sentence on count 2 be served cumulatively on the sentence imposed on count 1 making for a total effective sentence of 15 months. His Honour further ordered that three months of the sentence be suspended from 3 April, 1998 for two years. The applicant later lodged notice of application for leave to appeal against conviction pleading certain grounds and the learned Registrar, in July last, granted leave to substitute those grounds as follows:

"1. The learned trial judge erred in the exercise of his discretion in refusing to discharge the jury consequent upon the application by defence counsel consequent upon the Prosecution witness Beinke giving evidence that the applicant often talked "about urinating or having little girls urinate on him." 2. The learned trial judge erred in his directions to the jury concerning lies.

PARTICULARS

(i) The learned trial judge permitted the jury to treat the statement of the applicant that: `Yes, [the complainant] did comprehend' as evidence capable of constituting consciousness of his own guilt.

(ii) The question of whether the complainant "did comprehend" was the ultimate issue at the trial of the applicant.

(iii) As a consequence, the said statement was not capable of being used as evidence of consciousness of guilt.

3. The learned trial judge erred in his directions to the jury concerning consent/free agreement.

The learned trial judge erred in his directions to the jury as to the incapacity of the complainant to consent and the means by which the jury might determine same.

4. The verdicts of the jury are unreasonable and/or unsafe and/or unsatisfactory in that there was insufficient evidence upon which a properly instructed jury could convict and, as a consequence, there has been a substantial miscarriage of justice.

There was insufficient evidence upon which the jury could find that the complainant was incapable of understanding the sexual nature of the relevant acts."

20. The case for the prosecution was that the offences were committed at a Motel in Traralgon in a suite which had been engaged for the purpose of several men viewing pornographic videos and consuming some food and alcohol. Two of these men, one Beinke and one Cianci, knew the applicant. They also knew "GS", the alleged victim. It was not disputed at the trial that she was a mentally retarded young woman aged 35 with an I.Q. of 36. Cianci gave evidence that shortly after his arrival at the room, the applicant and "GS", both naked, came out of the bedroom portion of the premises. "GS" sat naked on a chair. The applicant came up behind her and urinated on her back. He was still naked (count 1). Beinke gave similar evidence except he thought that "GS" was standing at the time the urination occurred. About ten minutes after this incident Cianci saw the applicant and "GS" go back into the bedroom. Beinke said that he later entered the room with another man and although it was dark heard noises consistent with people having sex. He left the room and upon returning to it on his way to the toilet he saw the applicant and "GS" on the bed. He thought they were having intercourse. They were naked. "GS" was lying on her back and the applicant was on top of her. The applicant was making sexual noises such as groaning. On his return from the toilet, he saw the applicant still on top of her. He was assisted by light from the kitchen and a verandah light.

23. The Crown called a Dr Julian Davis, a senior lecturer in psychiatry and intellectual disability from Melbourne University. I shall return to the content of his evidence later. The applicant, according to the evidence at the trial, had been interviewed at the Morwell CIB on 6 February, 1997 and an edited version of that was played to the jury. This Court has been given the transcript thereof. The applicant did not give evidence, nor was evidence called on his behalf.

26. I now turn to the arguments on this application.

29. Ground 1 relates to an incident which occurred during the examination-in-chief of Beinke, who, it will be recalled, was an eye-witness to events relevant to the counts upon which the applicant was convicted. Having described the naked applicant urinating on the back of the naked "GS". Beinke was asked "...had Martin Eastwood ever spoken to you about that before, about urinating?" He replied, "In prior discussions within the factory, yes." He was then asked, "And what had he said to you?" The witness replied, "He often talked about it on different occasions about urinating..." (It was common ground on the application that the witness had been expected to give this evidence.) But the witness then continued, "...or having little girls urinate on him." (This was entirely unexpected.)

32. After the witness answered a further five questions in which he said that "golden shower" was one of the favourite expressions of the applicant, the judge declared a break in the proceedings. Upon the court resuming in the absence of the jury, application was made by counsel for the applicant for the discharge of the jury. Counsel submitted the unexpected evidence contained an allegation of uncharged prior criminal conduct and an implication of "at least paedophilic tendencies" in the applicant. He contended that any probative value in that piece of evidence was outweighed by its prejudicial effect on the jury.

35. Counsel for the Crown conceded the prejudicial effect, (which concession was withdrawn before us) but suggested that a voir dire be held to ascertain exactly what the witness had meant. After some discussion His Honour agreed to a voir dire and Beinke was recalled for this purpose. Beinke explained that in fact the applicant had never referred to any particular age group of females in his remarks about urination. The Crown Prosecutor then submitted there was no high degree of necessity for the jury's discharge. But counsel for the applicant maintained the application.

38. His Honour gave a short ruling refusing to discharge the jury. He did so on the basis that if Beinke repeated his evidence on the voir dire before the jury then any prejudicial effect arising from the earlier evidence would be removed. The judge also indicated that he had in mind warning the jury that they should disregard the unexpected piece of evidence of Beinke.

41. The trial resumed and counsel for the Crown elicited from Beinke that the applicant's reference to having little girls urinate on him was not said in the sense that such events had occurred, but rather "in the lines of a fantasy". Nor, he added, had the applicant ever referred to little girls but rather, "just females", not mentioning any age group.

44. The witness was then cross-examined by counsel for the applicant. I think it fair comment that he gave a number of answers favourable to the applicant. Nevertheless, counsel put it to him that in his evidence-in-chief he "chose" to use the expression "little girls". The witness agreed. It was then put to him that he had so chosen to prejudice the applicant in the eyes of the jury. Further questions relating to less than cordial feelings between the applicant and the witness in the past were then administered.

47. It was common ground that the learned judge did not give the warning he had foreshadowed but in the course of his charge His Honour reminded the jury of the passages of evidence set out above.

50. Before us, it was submitted that the Crown Prosecutor had accepted that Beinke's unexpected evidence was prejudicial to the applicant. Notwithstanding his later evidence, counsel contended, the applicant was irrevocably prejudiced by the unexpected evidence. Counsel relied on aspects of the decision of the High Court in Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427, at 440-442, particularly the following passage in the joint judgment of Toohey, Gaudron, Gummow and Kirby, JJ., referring to a happening which has provoked an application for a jury's discharge.

"Much depends on the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs, the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the Court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript."

54. The several aspects referred to in the early part of this passage, counsel for the applicant submitted, supplanted the test of "high degree of necessity" (more correctly "high degree of need") applied by the learned judge in accordance with standing Victorian practice, see R. v. Matthews (unreported, Court of Appeal, 24 July, 1998); R. v. Holt and Merriman (1996) 87 A. Crim. R. 82 at 86; R. v. Boland [1974]V.R. 849 (cited in a footnote in Crofts); R. v. Su [1997] 1 V.R. 1 at 38-39 and R. v. McKittrick [1982] VicRp 66; [1982] V.R. 637 at 642-643 (each citing Boland). See also R. v. George, Harris & Hilton (1987) 9 N.S.W.L.R. 527 at 532-534 (S.L.R. 167 C.L.R. 658n), a decision of the New South Wales Court of Criminal Appeal; cf. R. v. Thompson [1983] 1 Qd.R. 224 at 227; R. v. Vaitos (1981) 4 A.Crim.R. 238 at 261 per Murphy, J.; R. v. Gallagher (1987) 29 A.Crim.R. 33 at 40; R. v. DDR (unreported, Court of Appeal, 19 December, 1997) per Tadgell, J.A. at p.1 and R. v. Saffoury [1998] VSCA 36 per Winneke, P. at p.7.

57. In my opinion, it was open to the learned judge to find, as he did, that the corrected evidence of Beinke before the jury would remove the prejudice to the applicant conceded by the Crown Prosecutor. It is true the judge promised a warning and did not give it. The transcript does not provide an express explanation for this, but in my view it is highly probable that the subsequent cross-examination by counsel for the applicant was taken into account by His Honour. It was not as if counsel was compelled by forensic circumstances to cross-examine as he did. Nor could the judge, once this cross-examination had occurred, tell the jury to ignore Beinke's evidence on the point. In any event, trial counsel for the applicant neither renewed the application for the jury's discharge nor offered complaint when the promised warning was not given.

60. I do not accept the submissions touching Crofts put by counsel for the applicant. Had the members of the Court intended to effect the significant change alleged, they would have surely said so. Instead, they said this:

"(440) The Court of Criminal Appeal...acknowledged that the trial Judge had a discretion; that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity."

64. Then, citing R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 866, Their Honours continued (quoting from the Court of Criminal Appeal judgment in that matter):

"The question is whether in the circumstances...there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury?... His Honour obviously thought that any prejudice to the applicant which the complainant's answer might have aroused could in the circumstances be overcome by the warnings which he in fact gave to the jury. We cannot say that he was wrong in so concluding."

"It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind."

Indeed, in expressing their conclusion (442) Their Honours used the words, "Necessitated...an order of discharge."

71. In my opinion, in exercising his discretion, His Honour applied the correct test. The prejudice to the applicant was capable of being removed. Clarification of the witness' evidence was relatively swift and the judge's factual findings were open to him. This ground must fail.

74. Ground 3, it will be recalled, alleged error in the directions to the jury concerning "consent/free agreement". Section 36 of the Crimes Act 1958 is relevant. After defining "consent" as "free agreement", the section sets out "circumstances in which a person does not freely agree to an act" including:

"(e) the person is incapable of understanding the sexual nature of the act."

78. The learned judge gave the following directions.

"There must be no lawful justification for it, consent would be a lawful justification if the woman gave her consent. Here the Crown's case is that the woman, "GS", was incapable of giving her consent. This question of consent involves a state of mind. It means free agreement. It is "GS's" state of mind that must be proved by the Crown at the time the alleged offences took place. Here the Crown's case is that the accused never forced "GS" to let him urinate on her or lie on her but that he took advantage of her impaired mental condition. The Crown says that whilst she did not resist in any way and may have even consented in some form or another, that consent was not a real or true consent because she was not mentally capable of giving her consent." "The Crown's case is that she nevertheless lacked the mental capacity to understand the sexual nature of the acts. The law says, as I have already said, `consent' means `free agreement' and circumstances in which a person does not freely agree to an act include the situation where a person is incapable of understanding the sexual nature of the act." "In deciding whether or not "GS" was incapable of understanding the sexual nature of the acts complained of you may take into account the following factors: Whether or not she understood that there was some difference in quality between the act of allowing a naked man to lie on her or of urinating on her back and other acts such as kissing or hugging and whether that consent to it involves some form of moral judgment on her part. Another factor you may take into account is whether or not she was aware that she could refuse to take part in such acts and that she did not have to participate just because she was asked or requested. These factors that I have mentioned to you are not meant to be exhaustive and you may well think of others. Also, I am not meant to be saying that if you decide that any one of these factors is present then that means ergo that she has lacked the necessary understanding. At the end of the day, you look at all of the relevant evidence and say to yourselves `Have the Crown proved lack of consent on "GS's" part in that she was incapable of understanding the sexual nature of the acts complained of by the Crown?"

82. It will be noted that His Honour has described the case put for the prosecution in terms of lack of mental capacity to understand the sexual nature of acts in the second passage above cited and in terms of lack of capacity to give "consent/free agreement" in the first passage above cited. He has then gone on to tell the jury that in the course of deciding whether the alleged victim was capable of understanding the sexual nature of the acts they could use their conclusion upon the question of whether or not she was aware she could refuse that conduct. Later still, His Honour declared that the question was whether the Crown had proved that she was incapable of understanding the sexual nature of the acts.

85. It is necessary to consider the final address of counsel for the Crown in order to see just how the prosecution put its case. A transcript thereof has been supplied to the Court.

88. After referring to other elements in the offence of indecent assault, prosecution counsel continued, "The issue of consent is an element of the offence of indecent assault that namely we have to prove that she was not consenting and he (the applicant) knew she was not consenting or might not be consenting."

91. As to count 1, counsel argued that because the urination occurred on the back of "GS" "nobody would have had a chance to consent" in that circumstance and that the jury should return a verdict of guilty, "that is, even leaving aside her intellectual capacity, it (the urination from behind) would apply to anybody." As to count 2, counsel submitted that the "accused man naked on top of her, that in itself, touching, amounts to an indecent assault" and continued, "What we say is that she was not consenting because she was unable to consent in relation to these matters. You know what we say - we say that she was not able to give any real consent at all to these matters and he knew it."

94. After referring to some aspects of the evidence, counsel added, "What we say - that she was incapable of understanding the sexual nature of the act in its real sense, just incapable and he knew it..." Still later, he said of the applicant, "He well knew of her mental condition and her incapacity to consent to any form of activity".

* being incapable of giving real consent, * being incapable of understanding the sexual nature of an act; and, * being incapable of consenting to any form of activity,

102. In my opinion, a fair reading of the judge's charge is that His Honour conveyed to the jury that it was for the Crown to prove lack of consent and that the Crown could do this by proving that "GS" was incapable of understanding the sexual nature of the acts. He treated capacity, or lack of capacity, to consent (to give "free agreement") as a step the jury should take in reaching a conclusion as to capacity, or lack of capacity, to understand the sexual nature of the acts.

105. It was submitted for the applicant that the directions given by the Judge were erroneous in that they permitted, indeed may have invited, the jury to take into account matters irrelevant to the question of whether "GS" had the capacity to consent. Counsel listed these matters which included the I.Q. and severe intellectual disability of "GS"; her inability to respond in an appropriate manner; her demonstration of echolalia and the facts that she was suggestible, accepted direction and dependency, did not understand the term "sexual intercourse" and did not understand the social implications or differences between sexual intercourse and various behaviours and the consequences of sexual intercourse.

108. Counsel cited, in this connection, R. v. Morgan [1970] VicRp 43; [1970] V.R. 337 and R. v. Mobilio [1991] VicRp 28; [1991] 1 V.R. 339 at 351.

111. Counsel for the applicant allowed that no exception had been taken by trial counsel on behalf of the applicant to the judge's directions, but contended that this was not fatal to this ground as pleaded. In this connection, he relied on the ruling made by the Judge (36-40) and cited KBT v R (1997) 149 A.L.R. 693 at 697. The directions, it was said, had occasioned a substantial miscarriage of justice.

114. In Morgan the Crown alleged that the prosecutrix in charges of rape lacked the mental capacity to consent to an act of sexual intercourse. The learned Judge directed the jury that, even if the prosecutrix understood the physical act of penetration of her body by a male's penis, proof that she lacked understanding or knowledge of any one of a number of what he called "rudimentary concepts" established as a matter of law lack of capacity in her to consent and thus lack of consent. These "rudimentary concepts" involved the concept of virginity, the effect of intercourse upon the hymen and that a pregnancy may result from intercourse; that most of the community draw a distinction in "quality" between the act of intercourse and other intimate acts and that consent or refusal involves a moral judgment. This was held to be misdirection and the Court said:

"...where capacity to consent is in issue in order to establish that a girl does not have that capacity - and there is accordingly no consent - it must be proved that she has not sufficient knowledge or understanding to comprehend (a) that what is proposed to be done is the physical fact of penetration of her body by the male organ or, if that is not proved, (b) that the act of penetration proposed is one of sexual connexion as distinct from an act of a totally different character. The Crown may prove both (a) and (b), but if it fails to satisfy the burden as to (a) it may still establish incapacity to consent by proving she had not sufficient knowledge or understanding to comprehend (b). Equally so we are of opinion that capacity to consent does not involve, as a matter of law, knowledge or understanding of any of the ingredients referred to as `rudimentary concepts' by the learned trial judge. Accordingly, if the prosecutrix has knowledge or understanding of what the act comprises, i.e. the fact of penetration, and of its character in the sense above mentioned, then she has all that the law requires for capacity to consent. That knowledge or understanding need not, of course, be a complete or sophisticated one. It is enough that she has sufficient `rudimentary knowledge' of what the act comprises and of its character to enable her to decide whether to give or withhold consent. It follows that the charge of the learned judge, as we understand it, in directing the jury that absence of one or more of the `rudimentary concepts' established incapacity, constituted a misdirection and that as it went to the heart of the crime charged, the verdicts based upon it cannot stand. Nothing that we have said is, of course, intended to suggest that considerations of the nature referred to by the learned judge in his charge are outside the purview of the jury, as the tribunal of fact, in arriving at a conclusion as to the state of the girl's knowledge or understanding in the relevant sense at the material time."

118. In Mobilio, Morgan was considered and the following passage appears in the judgment of the court at 351, after a citation of part of the judgment in Morgan.

"What was said by this court in Morgan in the last paragraph of the passage quoted above, indicates that whether or not a woman was able to appreciate the morality of the act is one of the considerations which could be taken into account in deciding whether she had the intellectual capacity to give a real consent to sexual intercourse. Situations encountered in the cases show that a woman's appreciation of the morality of a proposed act will sometimes turn on her knowledge of a man's purpose in proposing an act of intercourse. Although that statement by the court was not strictly necessary to the decision and was on a subject which does not appear to have been argued, it was made by way of guidance to trial judges and carries its own persuasive weight. In our opinion the passage quoted from the judgment of this court in Morgan is to be understood on the background that the law requires that a woman must understand the nature and character of sexual intercourse before she can be capable of consenting to it, but the fact that she does understand that does not necessarily establish her capacity to consent. In addition to her knowledge of the nature and character of the act her capacity to make a decision may be relevant. A jury might think that a woman whose intellect was insufficient to enable her to make a refusal of consent or to know that she had a right to refuse consent, lacked the capacity to consent despite her understanding of the nature and character of sexual intercourse: see R. v. Lang (1975) 62 Cr. App. R. 50, at p.52 and Howard's Criminal Law, 5th ed., (ed. Fisse), p.180; cf. R. v. Roden (1981) 4 A. Crim. R. 166. In deciding whether a woman who knew the nature and character of an act of sexual intercourse had the capacity to give a real consent to it, a jury could have regard to such things as her capacity to appreciate that most of the community draw a distinction in quality between the act of intercourse and other acts of intimacy and that a decision to consent or not involves questions of the morality or social acceptability of the conduct. We think the court is to be understood as meaning that in saying that those things are not outside the purview of the jury." (Emphasis mine.)

122. In the light of the above passage to which I have given emphasis it is proper that I here repeat a part of the evidence of Dr Davis. The judge asked:

"Just to get that clear, Doctor, is what you say is that she does not know that she is able (to) refuse sexual intercourse if it is proffered, or offered, or requested by another person?" Dr Davis replied: "That's correct; yes, Your Honour, that's correct."

126. In my opinion, the learned judge did not, in principle, fall into error in referring to the various matters mentioned in paragraph 28. But the effect of the judge's directions, in my view, was to narrow the ambit of the case the Crown had actually put. This circumstance would have rendered irrelevant at least the matter of suggestibility.

129. In my view, the effect of the judge's direction, was to narrow the ambit of the case the Crown had actually put. There was also, involved in them, an element of confusion in treating the resolution of the questions whether or not "GS" was aware she could refuse to take part in the acts and that she did not have to participate simply because she was asked to do so, as part of the process of deciding whether she was incapable of understanding the sexual nature of the act complained of. If she was unaware she could refuse, it would seem that there had been an absence of free agreement.

132. However, in acknowledging these shortcomings I am unpersuaded that the applicant was disadvantaged by this part of the charge, as to which no exception was taken.

135. The way the case was conducted, I cannot see that capacity to consent in "GS" (in the sense that that expression has been used above), had anything to do with count 1. The applicant had denied urination to the police. Both Beinke and Cianci swore that the applicant urinated, without warning and from behind, upon the back of "GS". It was never squarely put to either that their evidence was wrong or untrue. It was put to Cianci that Beinke was the urinator, but the same suggestion was never put to Beinke. This must have been forensically disastrous for the applicant and the Crown Prosecutor made much of it. There does not appear to have been any suggestion of retrospective consent in "GS" and defence counsel seems to have attempted to deal with the evidence of Beinke and Cianci by suggesting that the light in the room was inadequate for proper observation and that Beinke was biased against the applicant.

138. As to count 2, the applicant denied being in the bedroom with "GS" but the evidence of both Cianci and Beinke was that he was on top of her on the bed and that they were both naked. Again, it was never squarely put to either that their evidence was wrong or untrue. In this setting, and having regard to what can be gleaned of counsel's addresses, in my opinion the charge as to consent was adequate.

141. I now turn to ground 2. The applicant had said a number of things about "GS" during his record of interview. These were, variously, that she was, "retarded" (a45); "Slow, backward" (a46); "intellectually disabled" (a47); "slow" (a362); "intellectually disabled" (a362). He also said, "She just seemed like an intellectually disabled person. You know, she couldn't comprehend a lot of things that were sent to her." (a364); and "She seemed a little bit slow grasping certain things...and - she used to have mannerisms that - that indicated that she was retarded." (a366). Almost at the end of the interview, the following questions and answers occur.

"407 From your understanding of "GS" and your observations of her, both at the factory and wherever else you've had contact with her, do you think she has the mental capacity to consent - to understand what's happening and to consent to that sort of behaviour? A. Well, that's a hard question. Mental capacity, possibly. 408 Well, did - well, what - I'm not - I'm not talking about does she understand what sex is and how to do it and all the different positions. I'm not talking about that. Does she have the capacity to understand the significance of this - the sexual act between a male and a female and to be able to consent to, you know, being in a room with half a dozen blokes who all want to have sex and then, you know, having sex with them all. Does she have, in your opinion, the capacity to make that conscious decision intelligently? A. Well, from what I understand of her, I would have said yes. I mean she's - when I say retarded, from my impressions of her, she was slow on certain things. She had mannerisms which gave you that indication. I mean mannerisms that normal people don't do. You know what I mean? But she seemed to comprehend things that were told to her. 409. All right. A. You know, if she was given a job in the factory she would go and do it, so she obviously understood."

145. This series of answers apparently occasioned the Crown Prosecutor to submit to the jury that the applicant had been "cornered" by the police and that he then "realised...where the police were coming from". Then, counsel contended, "So basically he changed the explanation about earlier - about her not comprehending things to say that she could comprehend things. You just know that cannot be right. You just know that that is not right, he is just lying." Counsel later added "...and you might well think in this matter that the accused man denying that these activities occurred by him, is a show or a sign of guilt because he well knew that he performed these acts on her on this particular night and he does not want to admit it when he is spoken to by the police because he well knew of her mental condition and her incapacity to consent to any form of activity."

148. After the jurors retired to consider their verdict counsel for the applicant asserted that the Crown Prosecutor's submissions to the jury amounted to a contention that if the jury found answers of the applicant in the record of interview to be lies, they could find that those lies were evidence of a consciousness of guilt. (His Honour commented "I must have missed that argument.") Counsel said that the lies referred to were the applicant's "denials of the conduct complained of". In answer to the judge, the Crown Prosecutor declared that the relevant "lies" were "about the sexual behaviour - because he knew that she was mentally incapable of consenting". He added, "there may have been something else". He described his argument as "a matter of credit" which did not require a direction in accordance with Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193.

151. After further argument, the judge made a ruling in which he said that, "An Edwards type direction is appropriate." His Honour apparently understood the Crown Prosecutor's argument to be based on the apparent change of tack of the applicant as to "GS's" powers of comprehension during the record of interview, i.e., after he had been "cornered".

154. His Honour then gave the following redirection:

"Mr Foreman, members of the jury, I have interrupted your deliberations to give you a further direction of law and it concerns an argument put to you by the prosecutor. It is an argument that I may not have mentioned to you in my summary of the Crown's case or if I did I might have only touched on it very lightly but on reflection it is a matter that requires further direction. It was an argument that the prosecutor put to you along these lines and it was that the accused man well knew "GS's" mental condition and that he lied to the police when, as (Crown counsel) put it, he was `cornered' by the police towards the end of the interview when having previously said that she was mentally retarded and backward and so on. Towards the end of the record of interview when this topic had been canvassed by the police at some length (Crown counsel) said the accused the said to the police, "yes, `GS' did comprehend." I am not saying they are the exact words (Crown counsel) used but it was an argument along those lines and then (Crown counsel) put to you as an argument that this in fact was a lie and it was said because the accused man knew by then that her ability to consent was an issue and that the accused man had told that lie about `GS' in fact because he was conscious of his own guilt. That is an argument that is put to you by (Crown counsel) but it requires a direction of law by me to you about it and that is this: You may infer that the accused entertained a consciousness of his own guilt of the crime if, but only if, you are satisfied beyond reasonable doubt of the following matters: Firstly, that the statements attributed to the accused were indeed made by him. Let me say as a matter of comment and not as a matter of law, you have the tape of the interview and I do not think there is any argument about the fact that the accused said this. It is there for you to hear - (Defence counsel) has not suggested that the accused did not say this and it is there for you to listen to. Secondly, and I get back to my direction of law, that the statement was a lie and not only that, that it was untrue and that the accused knew it was untrue at the time he said that to the police. Thirdly, that the only reasonable explanation that the accused did tell this lie was his consciousness of guilt of this crime, not of some other wrongdoing or because of some other reason to lie about the matter such as panic, embarrassment or a desire to escape from an unjust or unfounded accusation. When you are satisfied beyond reasonable doubt that the accused did tell a lie in this way and that he did say this because of a consciousness of guilt of these crimes, you could use that consciousness of guilt as evidence of actual guilt and that is what (Crown counsel) asks you to do. In doing so, however, you should be careful to consider the possibility that the accused may have wrongly believed himself guilty. If you are able, on the whole of the evidence, to exclude that possibility beyond reasonable doubt, the evidence of the accused's lie becomes evidence of his guilt but of course first you must decide whether it was a lie and that is a matter for you."

158. Thus, it appears that the Crown Prosecutor raised with the jury two instances of "lies": that uttered after being "cornered" as to the comprehension of "GS" and that uttered in denial of the criminal conduct alleged against him. The Judge's redirections related only to the former, which, he declared, the Crown Prosecutor had characterised as lies told out of a consciousness of guilt. The Crown Prosecutor had not actually used the phrase, "consciousness of guilt" in addressing the jury and had informed the Judge, in the jury's absence, that he had raised lies by the applicant as "a matter of credit". He had used to the jury the expressions, "a show of guilt" or "a sign of guilt", but only in relation to the denials of the criminal conduct alleged.

161. Counsel for the applicant has submitted before us that "lies" constituted by denials by an accused person of the criminal conduct alleged cannot constitute evidence of consciousness of guilt and where a jury may have treated such denials thus, it has been held that a substantial miscarriage of justice results. He cited, in this connection,

* R. v. Gionfriddo & Faure (1989) 50 A. Crim. R. at 332-333 * R. v. Mercer (1993) 67 A. Crim. R. 91 at 98 * R. v. Zheng (1995) 83 A. Crim. R. 572 at 576-577; and * R. v. Laz [1998] 1 V.R. 453 at 466.

The correctness of this submission was conceded by counsel for the respondent, who nevertheless pointed out that the Crown Prosecutor had informed the judge that he was not submitting to the jury that any lie told about the conduct complained of could be used as evidence of the applicant's consciousness of guilt. So, too, it was said, the Crown Prosecutor told the judge that the Crown's position was that a lie told was a matter of credit. Accordingly, so the argument went, an Edwards direction was unnecessary and there was no invariable rule of practice in Victoria that it was the duty of the Judge to make clear to the jury that they cannot think that because the accused is lying he must be guilty. In addition, she submitted, the Crown did not seek to rely on the applicant's answers to questions 52, 53, 343 and 358 (in which he denied the criminal conduct alleged) in the record of interview as evidencing a consciousness of guilt, but only as "help" for the jury to decide if they found a lie that they preferred the evidence for the prosecution.

166. It may be accepted that the above correctly states the position the Crown Prosecutor took up with the Judge. But in my opinion, it is what was said to the jury which is critical. In his directions to the jury the Judge referred to only one alleged lie by the applicant in the record of interview. He characterised this as a statement "Yes, `GS' did comprehend". In his address to the jury the Crown Prosecutor referred not only to this statement (which he contended was a lie) but also to denials by the applicant as to his performing the activities alleged against him. He did not actually use the word, "lies" in relation to these denials, but it is clear he was so categorising them. He described them as, "a show or a sign of guilt". The learned Judge gave no direction touching these alleged lies.

169. In my opinion, the resulting situation was very unsatisfactory. The jury may have considered that counsel's expression, "show or a sign of guilt" (used in connection with the denials categorised as lies) involved the same notions as the Judge's expression, "consciousness of guilt". If this be allowed, then it follows that an Edwards direction was necessary. It was not given as to these denials. On the other hand, if the jury did not act thus and regarded the denials as a different form of lies to that which was the subject of His Honour's direction, then they were left without guidance as to those lies and may well have adopted the impermissible "bootstraps" approach: R. v. Laz [ 1998] 1 V.R. 453 at 466. I will, for present purposes, allow that what has occurred is that the Crown Prosecutor has argued that the applicant's denials of urination and being in sexual contact with "GS" in the bedroom evidenced a consciousness of guilt in him in the sense that he knew of her incapacity to consent. But in the law relating to it, "consciousness of guilt" is habitually used in relation to the crime charged and not an element of it and the better view is, I think, that false denials found as to an element of a charge, adversely affect the credit of an accused person on other elements, if it is in issue.

172. Counsel for the respondent relied upon the proviso. The jury were faced with a direct clash between the evidence of the Crown eye-witnesses Beinke and Cianci and the applicant's denials to the police, disbelief of which did not necessarily lead to conviction. Consequently, the argument of the Prosecutor that the applicant's motive for false denials (that the applicant knew "GS" was incapable of consenting) was a very significant one and went to both of the central issues in the trial. It may well have had a substantial effect on the jury. It is for the respondent to show that the proviso should be applied and I am not persuaded that it should be. Significant non-direction has occurred. Accordingly, ground 2 succeeds and the convictions of the applicant, in my opinion, should be quashed.

175. As, in my opinion, the Court should direct that a new trial of the applicant be had, I shall proceed to deal with ground 4. Indeed, if it succeeds, there would be verdicts and judgments of acquittal. The central submission of counsel for the applicant on this ground was that the evidence was not such that a properly instructed jury could find that "GS" was incapable of understanding the sexual nature of the subject acts. Indeed, the ground is expressed in those terms. In my opinion, the real question posed by the ground is whether there was sufficient evidence for the jury to be satisfied beyond reasonable doubt that "GS" was incapable of freely agreeing.

* Jones v R. [1997] HCA 12; (1997) 149 A.L.R. 598 * Knight v R. [1992] HCA 56; (1992) 175 C.L.R. 495 * Cutter v R. [1997] HCA 7; (1997) 143 A.L.R. 498 * Palmer v R [1998] HCA 2; (1998) 72 A.L.J.R. 254 * Gipp v R. (1998) 72 A.L.J.R. 1012

182. Counsel also referred to and relied upon a number of passages in the evidence of Dr Davis. These included evidence that "GS" was able to make her feelings known; that she knew the rudiments of the sexual act, i.e. the putting of a penis in a vagina etcetera; that she knew what a kiss, a cuddle and sex were; that she had stated that she did not know that she was able to refuse a sexual advance by an adult including an advance relating to sexual intercourse; that she would laugh at an event she found humorous or amusing; that she could demonstrate her displeasure; that she could demonstrate her refusal by pulling her sweater up over her head, withdrawing and becoming uncooperative; that she knew that a baby may be the product of the sex act; that she could understand the rudiments of sex but of her role in a sexual act and the behaviour that may be expected of a partner in a sexual act, she has no understanding whatsoever and that she never demonstrated verbally that she had "had enough" of a matter.

185. It is to be noted that the learned Judge gave no directions at all to the jury as to how they should evaluate expert evidence largely, I suppose, because neither trial counsel bothered to ask for such directions. In any event, no complaint is made about that in this application. But, on any re-trial, such a direction should be given.

188. It is also to be noted that Dr Davis' evidence did not stand alone. There were in addition the admissions made by the applicant in the record of interview and which I have previously noted. So, too, there were the observations of the lay witnesses, Cianci and Beinke. Cianci's evidence was that he had seen "GS" once or twice before the occasion of the alleged offences and that he thought her level of intelligence "very low". This assertion, which he later reiterated to the Judge, was

not challenged. He said to the Judge that he had previously spent a couple of hours in her company. Beinke's evidence, which was colloquially expressed, was that "GS" "hasn't really got a full deck of cards". Again, this statement was not challenged. There was also a happening in the nature of a "view" of "GS" in that she was brought into the Court room before the jury (apparently for some five minutes) during the evidence-in-chief of Dr Davis and identified by him. It appears that the Crown Prosecutor relied on her appearance in the Court room to support his submission that she was "severely handicapped". No directions were given by the learned Judge as to how the jury should utilise this view of "GS", again, apparently, because neither counsel bothered to ask for them to be given. Again, no complaint is presently raised as to this. Should a retrial eventuate, in my opinion, the jury would be entitled to view "GS" in order to better understand the evidence touching her.

192. For the purposes of the independent review of the evidence which is sought for the purposes of this ground, in my opinion it was plainly open to a jury to be satisfied beyond reasonable doubt that the complainant was incapable of giving free agreement. I rely for this view on the evidence I have already set out and in particular the answer given by Dr Davis to the question by the learned judge set out in paragraph 33 above. I also refer in particular to the evidence the witness gave as to the I.Q. of "GS" and his opinion that she probably fell, in terms of overall intelligence, at the lowest 1% of the population.

200. The circumstances in which this application is made are set out in the reasons for judgment prepared by the learned Chief Justice. They enable me to state with brevity the four reasons why I, too, consider that there should be a new trial.

203. First, the jury were told, in the course of the charge, both that the Crown case was that GS was incapable of giving her consent and that the Crown case was that she lacked the mental capacity to understand the sexual nature of the acts in question. The two propositions were treated as if they were interchangeable on several occasions in the course of his Honour's directions, but they are quite distinct. A person may understand the sexual nature of an act but be incapable of freely agreeing to it: see R. v. Mobilio [1991] VicRp 28; [1991] 1 V.R. 339 at p.351 lines 14-33. It was open to the jury to conclude that GS was incapable of giving her consent even if she understood the nature of the acts. Dr. Davis gave evidence, for example, that, in his opinion, GS did not know that she was able to refuse sexual intercourse if it were proffered or requested by another person. I am not satisfied that the Crown intended to rely only on s.36(e) of the Crimes Act 1958 or that this application should be determined on the footing that the learned judge himself limited the Crown case. The jury would have understood the charge in the light of the prosecutor's final address, which we have had the advantage of reading.

206. Secondly, the Crown relied on alleged lies in the course of the applicant's record of interview in two ways. First, it was said that the accused claimed that GS had an adequate level of comprehension because he realized the nature of the charge that would be made against him. That might, or might not, evince a consciousness of guilt, for he may have feared that he would be wrongly charged. Secondly, the prosecutor argued that the applicant denied that any improper conduct had taken place because he was aware of GS's inability to consent. Counsel said:

"[Y]ou might well think in this matter that the accused man denying that these activities occurred by him, is a show or a sign of guilt because he well knew that he performed these acts on her on this particular night and he does not want to admit it when he is spoken to by the police because he well knew of her mental condition and her incapacity to consent to any form of activity."

The judge gave an Edwards direction in relation to the first contention but no direction was given with respect to the second. As a practical matter the Crown is likely to steer clear of the latter argument at the new trial, so it is unnecessary to risk the introduction of further complexities into the law relating to consciousness of guilt. I do not stay to consider whether an Edwards direction should have been given, with or without modification, or whether the jury should have been told to disregard the argument, but some direction was needed in the circumstances of this case in relation to the prosecutor's second contention.

211. Thirdly, as the Chief Justice has shown, it was open to the jury to be satisfied beyond reasonable doubt that GS was incapable of freely agreeing to either of the acts in question. (Consent would have been relevant to the first act if the jury thought that there may have been consenting conduct in the bedroom before the actors, both naked, came into the room in which the indecent assault took place.) As I have already indicated, I do not think that the applicant is entitled to a judgment and verdict of acquittal on the footing that the Crown case was restricted to inability to understand the sexual nature of the acts.

214. Fourthly, I agree with his Honour that the proviso to s.568(1) of the Crimes Act cannot be applied. On the one hand, the jury were not properly directed with respect to a central element of the offence; on the other hand, the jury were insufficiently directed with respect to the prosecution arguments about lies in the record of interview. The two matters taken together resulted in the applicant's being deprived of a "real chance of acquittal": cf. Krakouer v. R. [1998] H.C.A. 43 at 23 and 24.

217. As the Chief Justice has indicated, the customary directions about expert evidence should be given at the re-trial, for Dr. Davis or another expert will inevitably be called again as a critical prosecution witness. I concur in what his Honour has written about the continued applicability of the test in R. v. Boland [1974] VicRp 100; [1974] V.R. 849 as explained in the decisions of this Court. Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 is not to the contrary.

222. I have had the considerable benefit of reading in draft the reasons for judgment of the Chief Justice. I too agree that there should be a new trial. I agree with the Chief Justice's reasons and conclusions on grounds 1 and 2, save that I do not think it necessary to decide the question discussed by his Honour in the second half of para.47 of his reasons and prefer to reserve that question for another occasion. The lie in respect of which ground 2 succeeds is not the lie referred to in the particulars to that ground. But the point relating to the first-mentioned lie was fully argued without objection, and should be entertained.

225. I would, however, uphold ground 3 also. I agree with the conclusions of the Chief Justice as to the directions on consent stated in para.35 of his Honour's reasons and with his Honour's analysis of this ground up to and including para.33, despite the able argument of counsel for the respondent. As regards para.34, I agree that, the trial judge having narrowed for the jury the ambit of the Crown case, at least the matter of suggestibility from amongst the matters mentioned in para.28 of the Chief Justice's reasons was inadmissible on that narrower ambit. The shortcomings identified by the Chief Justice, together with the consideration which I have mentioned, mean, in my view, that there was misdirection on a central element of the offence to be proved by the Crown. Although I appreciate the force of what the Chief Justice has written about the conduct of the case in relation to count 1, in my view the applicant was entitled on that count to a direction concerning consent that was not confusing, because of the possibility, which was open, of the jury's making a finding of prior consenting conduct in the bedroom (a matter referred to in another context by Callaway, J.A., whose reasons for judgment I have also had the benefit of reading in draft). In my opinion, the conduct of the case on count 2 did not dispense with the need for such a direction. The proviso was not relied on for the respondent in relation to ground 3, as I understood counsel's written and oral submissions. In any event, in my opinion, the proviso is not applicable on ground 3.

64 With regard to ground 4, if the question for decision were that particularised under this ground and propounded in the argument for the applicant, the applicant's contention may well be sound. It was, however, open to a jury properly directed as to the Crown case to be satisfied beyond reasonable doubt of the guilt of the applicant on each count. But the judge had, in my view, inadvertently narrowed the ambit of the Crown case on consent to the question whether the complainant was capable of understanding the sexual nature of the acts. In the particular circumstances of this case there would, on the hypothesis made, be a new trial, not the entry of a judgment and verdict of acquittal.

229. But, although the trial judge had inadvertently narrowed the ambit of the Crown case on consent, perusal of the prosecutor's opening submission and, particularly, his closing address shows that the Crown also contended that the complainant lacked the capacity to consent. In the light of that, it may be that the jury should be taken to have addressed themselves to that contention: cf. R. v. Lawrence (unreported, Court of Appeal, 26 November 1997) at p.18 of the judgment of the Chief Justice and at p.1 of my judgment, in both of which Hampel, A.J.A. agreed. If so, the ultimate question really posed by the ground would be whether there was sufficient evidence for the jury to be satisfied beyond reasonable doubt that the complainant was incapable of freely agreeing to either of the subject acts. As the judgment of the Chief Justice makes clear, and as I have already indicated, it was open to the jury to be satisfied of that beyond reasonable doubt. But, since I consider that a new trial is required by reason of the success of grounds 2 and 3 and since success on ground 4 would produce no different result, I do not find it necessary to reach a concluded view on this ground and in particular on whether the real question for decision is the second question stated above.

I certify that this and the preceding 24 pages are a true copy of the reasons for judgment of Phillips, C.J., Callaway, J.A. and Batt, J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 17th September 1998.