R v Gose [2009] VSCA 66

Court of Appeal (Vic)|2009-04-07|Before: VINCENT and NETTLE JJA and VICKERY AJA

CRIMINAL LAW - Conviction - Rape - Common law obligations in charging jury - Whether accused believed complainant to be consenting - Whether written materials provided to jury a satisfactory substitute for oral directions given by judge - Whether trial judge failed to advise as to what the jury should do with the transcript - Whether trial judge failed to direct jury as to relevant circumstances to judge the reasonableness or otherwise of the applicant's belief - Whether risk of grave imbalance in case to be considered by jury - Crimes Act 1958 ss 37(1), 37(1)(c), 568(1) - Appeal allowed - R v Yusuf [2005] VSCA 69; (2005) 11 VR 492, ; referred to.

1 On 12 February 2009 the Court made orders allowing the appeal against the conviction of the appellant in the County Court at Melbourne on 31 May 2007 on one count of rape and ordered that a retrial be had. It was indicated at that time that the reasons for so ordering would be provided at a later date. The following are those reasons.

2 I have had the advantage of reading the judgment of Vickery AJA and agreed that the appeal should be allowed and a retrial ordered for the reasons given by his Honour.

3 I have also had the advantage of reading in draft the reasons for judgment of Vickery AJA and agreed for the reasons he gives that the appeal should be allowed and a new trial had.

4 The appellant was convicted in the County Court at Melbourne on 31 May 2007 of one count of rape (count 2 preferred against the appellant). The appellant was found 'not guilty' on a further count of indecent assault (count 1).

5 Following a plea in mitigation, on 12 June 2007 the appellant was sentenced to 3 years' imprisonment. The sentencing judge fixed a period of 2 years' imprisonment before the appellant was eligible to be released on parole. Pre-sentence detention of 13 days was declared under s 18 of the Sentencing Act 1991. An order was made for the retention of a forensic sample pursuant to s 464ZFB(1) of the Crimes Act 1958.

6 The appellant applied to this Court for leave to appeal against the conviction recorded and the sentence imposed in respect of count 2 (rape).

8 On Tuesday 25 October 2005 the complainant caught a train from Pakenham to Clayton to attend a doctor's appointment at her university campus. When the train reached Berwick station, the appellant got on. He sat next to the complainant and they talked to one another. He told the complainant that he was a nurse and his name was Romano and when the train arrived at Dandenong station, both the complainant and the appellant disembarked.

9 It began to rain and the complainant and the appellant took shelter on the platform where they exchanged telephone numbers. They stayed there for about 15 minutes during which time the appellant kissed the complainant. He then attempted to put his hands down the complainant's underpants. She said no, and he stopped what he was doing and when the next train arrived, the complainant continued on to her destination.

10 Following that, there was some communication between the parties. The complainant sent a text message to the appellant suggesting that they meet for lunch and they subsequently met at 1.00pm on Sunday 30 October 2005 at the Dandenong Railway Station.

11 On that date, the complainant arrived at the Dandenong Railway Station at approximately 1.00pm. The appellant had driven to the station in his yellow Ford Laser and from there together they went to a nearby shopping centre for lunch. After this, he drove the complainant to his unit in Alamein Street, Noble Park. At the time the complainant did not know where they were going. The complainant and the appellant entered the flat. The appellant's flatmate, MF, and friend, NN, were present. NN had spent the night there. The appellant took the complainant by the hand and led her to his bedroom. He began kissing her while they were both standing in the bedroom. As this was occurring, NN walked past the bedroom window, as a result of which the appellant pulled down the blind.

12 The appellant then began to lift up some of the complainant's upper garments. She was wearing a calf-length skirt, and a green top, beneath which she wore a singlet top and a brassiere. He began pulling up the green top and the singlet. The complainant said no, and he stopped lifting up her clothing, but continued to kiss her while holding her tightly around the waist. The complainant then lost her balance and fell back onto the bed. The appellant bent over the complainant and asked to see her breasts. She said no. He then pulled the complainant back up to a standing position. The appellant again kissed the complainant who then tried to push him away, but was unable to do so. He then stepped towards her and she again fell backwards onto the bed. The appellant fell onto the bed and kicked his trousers off. He then lifted the complainant's right leg with his left hand and touched her vagina outside her underpants. This conduct was the foundation for count 1 (indecent assault).

13 Whilst this was happening, the complainant kept saying no, and the appellant continued to kiss her. He continued to kiss the complainant and climbed on top of her, in the course of which the complainant was pushing him away and saying no. The appellant then pulled the crutch area of the complainant's underpants to one side without removing them and penetrated her vagina with his penis for approximately 2 minutes, causing her a lot of pain and some bleeding. This conduct was the foundation for count 2 (rape).

14 The complainant continued trying to push him away and saying no while the appellant kissed her on the lips.

15 When the appellant withdrew his penis from the complainant, he asked her why she was crying. She had commenced to cry as a result of what was occurring. She said to him that she had said no, and that she had tried to push him away to which the appellant replied that he thought she was shy and he thought she wanted to have sex.

16 There was a further conversation between the two parties after that which resulted in the appellant driving her to the Yarraman Railway Station where she caught a train to Dandenong Railway Station, from which she was collected by her mother. She informed her mother that she had been raped which resulted in the matter being reported very promptly to the police.

17 The complainant was examined by Dr Morris Odell, forensic physician, that evening. He observed that the complainant's hymen had what he described as a fleshy oedematis appearance with full thick transaction at the six o'clock position consistent with recent penetration by an erect penis. Dr Odell also observed white mucoid fluid around the genital area of the complainant consistent with semen and he took some vaginal swabs and other specimens from her.

18 That evening at approximately 7.45pm the police attended at the appellant's residence and executed a search warrant. Some items of clothing belonging to the appellant were seized and photographs were taken. The appellant later agreed to provide a sample of his DNA to the police. Forensic testing on the DNA provided by the appellant and also on the swabs taken from the complainant detected spermatozoa on the vulval swab taken from the complainant, and that the sperm fraction of the high vaginal and vulval swabs taken from the complainant matched the DNA profile of the appellant.

19 The appellant was born on 5 January 1983. The appellant was 22 years old at the time of the offence. The appellant was aged 24 years at the time of sentence and the complainant was aged 21 years.

20 The appellant agreed fundamentally with the facts alleged in the Crown case, save for one critical matter. He said that the complainant consented to the sexual intercourse and that he believed at the time that the complainant was consenting to the sexual intercourse.

21 In support of his case the appellant said that the complainant initiated the second meeting by telephone; she entered his bedroom and engaged in kissing him; while she was in his bedroom she lay down on his bed; she turned her skirt up; she put her leg on top of him; 'she was ready', as he described it; she did not say 'no' during the sexual act and she did not try to push the appellant away; and that it was only after the event when he had withdrawn from her that she had said 'no' because, as the appellant said, he thought she was shy.

22 The appellant seeks leave to appeal against both conviction and sentence.

23 The appellant relied on three grounds in respect of his application for leave to appeal against his conviction. These are:

Ground 1 - The trial judge failed to put to the jury (a) the prosecution case, and (b) the defence case;

Ground 2 - The trial judge in his charge to the jury (a) failed to relate the directions that he gave under s 37(1) of the Crimes Act 1958 to the facts in issue; (b) failed to aid the jury's comprehension of the direction, and (c) failed to relate the facts to the law.

Ground 3 - A miscarriage of justice was occasioned by the prosecutor cross-examining the appellant as to whether the complainant was lying. This ground was abandoned at the commencement of the oral hearing of the application.

A further ground was foreshadowed in the course of the oral hearing arising from an alleged failure on the part of the trial judge to give an Edwards direction or any direction as to consciousness of guilt. This ground was ultimately not pressed.

24 The appellant relied on four grounds in respect of his application for leave to appeal against his sentence. These are:

Ground 1 - The period between the minimum term and the head sentence was inadequate;

Ground 2 - The sentencing judge erred in failing to take into account the appellant's youth in sentencing;

Ground 3 - The sentencing judge erred in failing to take into account rehabilitation in sentencing the appellant; and

Ground 4 - the sentencing judge erred in failing to take into account family hardship.

Charging a jury - Common Law obligations of the trial Judge

25 The common law obligations of a trial judge in charging a jury in a criminal matter are well summarised in R v AJS,[1] and expressed[2] to be:

Axiomatically, it is the responsibility of the trial Judge in every jury trial -

(a) to decide what are the real issues in the case;

(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;

(d) to explain to the jury how the law applies to the facts of the case; and

(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.

These propositions are of long-standing and of high authority. They have often been repeated in this Court. If adhered to, they should serve to simplify, rather than complicate, the task of the trial Judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.[3]

26 Although it may be subsumed in these paragraphs of AJS, the duty of the trial judge to ensure that the cases advanced by the both the prosecution and the defence are clearly placed before the jury is also of importance. The matter was revisited in R v Thompson,[4] Redlich JA observing that:[5]

[The obligations] include an explanation to the jury as to how the law applies to the facts of the case, identification of the issues in the trial, relating the issues to the facts of the case and summarising so much of the evidence as is relevant to the facts in issue by reference to the issues in the case. These obligations subsume the judge's obligation to ensure that the prosecution and defence case is clearly placed before the jury, usually by summarising the addresses of counsel, on both sides.[6]

27 It is clear that the discharge of these obligations will vary depending upon the nature of the issues and the circumstances of the trial. As Redlich JA observed in Thompson:[7] 'It is for the trial judge to craft the oral directions in such a way that ensures that the oral exposition is sufficient.' To similar effect is the observation of the Court of Appeal in R v Dao:[8]

We, too, would therefore add our voice to those who have lamented the practice adopted by some judges of failing in their charges to juries to provide a summary of the relevant evidence or of the arguments which counsel have offered to the jury in their final addresses. How a particular judge approaches this task in a particular case is essentially a matter for their own judgement, brought to bear with the benefit of long forensic experience in the light of the manner in which the case has been conducted by the prosecution and the defence. Nevertheless, however it be done, it must be done.

28 Directions given in a very short trial involving a simple factual issue, such as the present, may vary considerably in their content from those required in a lengthy or more complex trial. However, even in a case of short duration the obligation to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict cannot be avoided. As the Court of Appeal said in R v Dao:[9]

It has been accepted, in this jurisdiction at least, that the proper performance of these tasks requires the judge, in any but the most straight-forward of cases, to remind the jury of the evidence which has been placed before them, which is, after all, the material with which they must undertake their task, and to relate the facts and issues raised by counsel to the charges upon which they are required to return a verdict.

29 What constitutes an 'appropriate summary' will be shaped by the circumstances of the case and by the necessity to ensure that the jury is able to properly discharge its function, that is, to determine issues of fact and to apply the facts to the principles communicated to them so as to return a verdict according to law. In this respect, the High Court in Alford v McGee[10] said:[11]

And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.

30 Cases completed within a very short time, where there have been a small number of witnesses, and where the issue is well defined will still oblige a trial judge to relate the law to the facts in issue in the trial. This remains the case even in cases where, as here, final addresses of counsel were completed shortly prior to the jury being charged and directed to consider its verdict. In R v Yusuf,[12] Winneke P rejected the contention that the short duration of a trial (in that case a rape trial occupying only two days) lessened or eliminated the obligation of the trial judge to relate the law to the facts in issue in the trial.

31 The evidence was limited in extent and heard over two days. The trial judge's charge, which was given on the third day, was accordingly brief. His Honour instructed the jury only in respect of those aspects of the law which were relevant to the issues which had been raised in the case.

32 Most of the evidence called at the trial consisted of the evidence of the complainant. She described the circumstances leading up to and constituting the commission of the offences which were alleged against the appellant. There was also evidence from MF who was, at the time, living in the same premises as the appellant. He described the arrival of the appellant at the flat on the afternoon of Sunday 30 October 2005. The appellant was accompanied by a white-skinned woman. She went into the appellant's bedroom and stayed there with him for about ten minutes. After this they came out of the bedroom and left the premises. The next witness was NN who was staying at the premises at the time. His evidence did not add much of material value to the evidence of MF, except that he thought that the white-skinned woman stayed in the appellant's bedroom for at least 20 minutes. The complainant's mother, AB, was called. She gave evidence of the complaint made by her daughter after she had picked her up by car from the Dandenong Railway Station on the afternoon of 30 October 2005. Further, on the evening of the day the offence is alleged to have occurred, the informant Detective Senior Constable Curtis gave evidence that he attended at the premises occupied by the appellant where photographs were taken. The appellant then returned to the premises, and had a conversation with Detective Senior Constable Curtis. He agreed to provide a sample of his saliva for the purposes of DNA testing. The appellant gave evidence at his trial, but did not call any other evidence.

33 Sexual intercourse between the appellant and the complainant was not in issue. What was in issue was whether the complainant had consented to sexual intercourse with the appellant, and whether the Crown had proved to the requisite standard that the appellant knew the complainant was not consenting, or was aware that she might not be consenting.

34 The appellant advanced a number of matters in support of his defence which were not summarised for the jury by the trial judge in his charge.

35 In cross-examination by the appellant's counsel Detective Senior Constable Curtis was asked:

He admitted quite freely to you when you asked him whether he had sex with [the complainant]? --- Yes, that's correct.

And you asked him if he stopped having sex when she said to stop? --- That's correct.

And he told you that yes, he did? --- Yes, that's correct.

36 These exculpatory statements given by the appellant to the investigating police officer were not included in the trial judge's charge to the jury.

37 Further, in the course of giving his evidence, the appellant said a number of things consistent with his innocence, including that she entered his bedroom and engaged in kissing him; while she was in his bedroom she lay down on his bed; she turned her skirt up; that she put her leg on top of him; that 'she was ready'; she did not say 'no' during the sexual act; that she did not try to push the appellant away; and that it was only after the event when he had withdrawn from her that she had said 'no' because, as the appellant said, he thought she was shy. However, none of this evidence was included or referred to in the trial judge's charge to the jury.

38 There were also a number of other important aspects of the evidence were not summarised for the jury by the trial judge in support of the appellant's version of events. After they first met on the train on 25 October 2005, the complainant exchanged telephone numbers with the appellant. The complainant kissed the appellant in the shelter at the railway station. Following that the complainant initiated a further meeting with the appellant by text message. The complainant met the appellant for lunch on 30 October 2005. The complainant was then taken to the appellant's flat which she entered. The complainant was then led to the appellant's bedroom, which she entered. The complainant and the appellant kissed.

39 The extent of the comments of the trial judge in his charge in summarising the appellant's evidence on the central issue of consent was clearly inadequate. It was confined to the following observation: 'He did give evidence and he swore on his oath that he believed she was consenting at all material times, and there is the straight conflict of evidence.' The trial judge, in the course of his charge to the jury, also told them: 'As I said I am going to give you a very short summary of the way each side contributed to the evidence.'

40 However, although the trial judge summarised the evidence adduced by the Crown, and remarkably did so twice in the course of his charge, he neglected to summarise the evidence presented by the appellant, even in short compass. This approach gave rise to the risk of a grave imbalance in the cases to be considered by the jury. Not only was the Crown case summarised in the trial judge's charge, and in fact repeated for the jury, the case presented by the appellant was all but ignored, as were the principles upon which his version of events should be assessed. This could not have failed to create an impression in the minds of the jurors that the trial judge gave little credence to the appellant's case. The jury was denied an even handed approach to the evidence and was placed at risk of being unduly influenced by the emphasis the trial judge placed on the Crown case. Directions to the jury should have been formulated to avoid these outcomes, but were not. The fundamental unfairness in the process adopted in this case was manifest.

41 In seeking to redress some of these difficulties, the trial judge provided to the jury a transcript of all of the evidence. In so doing, his Honour appeared to place some reliance on the use of the transcript as a substitute for providing an adequate summary of the facts to the jury. The trial judge said:

I now turn to transition from law to the facts, I might say a transcript is going to be provided to you, so my dealing with the facts in this matter will be fairly skimpy.

...

Could copies of the transcript be handed to the jury please. ... That's prepared by the transcript writers, technically it is your recall of the evidence. It's what you believe you heard rather than what's typed on the pages. I must say it's a legal distinction and I should draw it to your attention.

42 It is well established that, contrary to the approach which his Honour appears to have adopted in this case, written materials cannot be substituted for the necessary oral directions. Again, the observations of Redlich JA in Thompson are to the point:[13]

The trial process is essentially an oral one. The provision of transcript or written directions cannot take the place of the oral directions which the law requires. The criminal trial proceeds upon the assumption that oral directions are an appropriate and effective means by which the jury's task is communicated to them. Oral directions are given and listened to by all of the jury in the presence of the judge and the parties in a public hearing. The parties are assured that all aspects of the jury's task have been explained to each member of the jury. The process provides transparency that would be absent if the jury were directed to act upon written instructions which they were to consider in the privacy of the jury room. Uncertainty would arise as to whether all jurors read all written material provided to them. The concept of justice being 'manifestly seen to be done' has contributed to the requirement that 'the whole direction must be by the judge in the full light of publicity.

Oral directions enable the trial judge to observe the jury and make some assessment as to whether they have followed and comprehended particular directions. It not uncommon for a trial judge to appreciate during the course of giving a more difficult direction or from observing the jury's reaction to it, that it requires further elucidation. For some jurors it may be the only means by which they can comprehend their instructions. I have in mind not only the literacy of jurors, which as Bleby J recently said, cannot be assumed, but the significant differences there are in the cognitive skills of individual jurors to absorb the written word. Nor should it be assumed that all jurors will necessarily be able to understand and remember more complex oral instructions. Hence an aide memoir may prove an invaluable supplement to the oral direction. Directions which are more complex can thus be re-enforced by their repetition in written instructions if the trial judge thinks fit. But clear and comprehensive oral directions are always essential.

In this case the trial judge instructed the jury to put the written material to one side unless they had a problem. But whatever the content of that material and the use that the jury were directed to make of it, the trial judge was not relieved of the duty to give oral instructions which satisfied the common law requirements. The written material could not be used as a substitute for the oral directions which should have been given. The jury must be left with the clear understanding that any written material they are given is an aid to the oral directions that they have received.

In any event, the written material did not satisfy those obligations that had not been addressed in the oral directions. The provision of the transcript of the evidence was not a summary of so much of the evidence as was relevant to the issues in the case. The provision of a transcript of counsel's arguments and a schedule of the points made by counsel in final address did not identify the issues and summarise the evidence which related to them. The list of the issues to be decided was not expressed in terms that related the issues to the evidence. The written material did not attempt to summarise the defence case.[14]

43 In the present case, the trial judge's charge to the jury was manifestly deficient. The shortcomings were not remedied by the provision of the transcript in the way it was.

44 Further his Honour failed to advise the jury what use could be made of the transcript, and there was no proper warning given as to the accuracy of the transcript. As to appropriate warnings which may be provided to a jury, Redlich JA observed in Thompson:[15]

Transcript may be provided to [the jury]. But if it is thought necessary by a trial judge to provide a transcript to the jury of all of the evidence, some direction is called for as to the way it should be used. Usually the explanation given for providing the transcript is to enable them to check particular pieces of evidence about which they have some uncertainty. If the trial judge provides the jury with a transcript, some instruction may be required concerning the accuracy of the transcript when, as is now common place, time will not have been taken on each day of the trial to deal with inaccuracies in the transcript.[16]

45 It was said in Thompson,[17] '[o]rdinarily a failure to summarise the evidence in the course of a charge would mean that the resultant conviction could not stand.' To this may be added the observation in Dao:[18]

Any neglect on the part of a trial judge to provide [the required] assistance to the jury brings about the very real risk that the whole trial process will have miscarried with the consequence that the trial may have to be repeated.

46 Regrettably, the well-intentioned approach of the trial judge in this case resulted in a failure to give the minimum oral directions required by law. The appellant's evidence was not summarised and the trial judge did not draw the attention of the jury to the evidence on which the defence relied. Further, his Honour did not relate the relevant evidence to the issues in the case. Nor were the cases presented by the prosecution and the defence presented to the jury in even a short summary form. These deficiencies in the charge, both individually and collectively, operate to vitiate the conviction of the appellant.

47 At the time of the trial, s 37 Crimes Act 1958, relevantly provided:[19]

(1) If relevant to the facts in issue in a proceeding the judge must direct the jury that -

(c ) in considering the accused's alleged belief that the Complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances -

and relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction.

48 In introducing the amending Bill which included s 37 Crimes Act 1958, the then Attorney-General said:[20]

Section 37 (sic) of the Crimes Act contains a statutory definition of consent and also sets out a non-exhaustive list of circumstances in which a person does not consent (e.g. where the victim was asleep). Section 37 requires judges to direct juries in a particular way where consent has been raised as an issue in the trial.

49 Sub-section 37(1)(c) was expressed in mandatory terms. The trial judge is required to direct the jury, if relevant to the facts in issue in the proceeding, that in their consideration of the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances. The sub-section contains a further mandatory requirement. The trial judge is also required to relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction.

50 In this regard, Winneke P in Yusuf,[21] noted the concluding remarks of the trial judge. Towards the end of his charge his Honour told the jury:

Now, members of the jury, I'm not going to summarise for you the evidence that's been put in this case. It was all heard yesterday and this morning, it is very fresh in your mind, it is in short compass and counsel have referred you to those parts of it that they want to. So it seems to me to be quite unnecessary for me to try and summarise it. ... Similarly, I'm not going to try and encapsulate or summarise the case that each of counsel has put to you. I would not be able to do them justice. I commend to you in full what they have said to you as recently as this morning, but I'm not going to endeavour ... to gild a lily or repeat it all to you. It just seems to me to be unnecessary to do that.

51 Section 37 was considered by the Court of Appeal in Yusuf. In that case, Winneke P observed that:[22]

It is clear that ... (s. 37 (1)(c)) adds little to the obligations which are imposed by the common law upon a trial judge - namely to give the jury directions as to such of the law as is necessary to enable them to determine the issues in the case before them and to relate that law to the facts in issue before the jury. This was Sir Leo Cussen's 'great guiding rule' referred to by the high Court in Alford v Magee.

52 The Court of Appeal held in Yusuf that, although the judge's failure to comply with s 37 was not regarded as necessarily amounting to a 'fundamental irregularity in the trial', nevertheless, the failure of the trial judge to relate the law which he had given to the jury to the facts in issue deprived the appellant of 'a chance which was fairly open to him of being acquitted'.[23]

53 In the present case, the trial judge did alert the jury to the ultimate issues comprising the elements of the offence of rape. However, and critically, the jury were not pointed to any evidence of the complainant's conduct which they might have accepted and taken into account in judging the reasonableness or otherwise of the appellant's alleged belief as to her consent. Nor were they directed as to any relevant circumstances open on the evidence which may have provided a background against which to judge the reasonableness or otherwise of the appellant's belief. Consequently, the trial judge failed in his statutory obligation to relate his direction on the reasonableness of the appellant's alleged belief to the facts in issue in the case. In so doing the trial judge failed to comply with the second limb of s 37(1)(c).

When s.37(1) of the Crimes Act talks of the judge being required to direct the jury that 'in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances - and relate any direction given to the facts in issue in the proceedings so as to aid the jury's comprehension of [that] direction', it seems to me to be tolerably clear that the requirement imposed on the judge is to relate his direction as to the accused's belief in consent to the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence. After all, that is the natural meaning of the words contained in the section, and is - in any event - in conformity with the procedural obligation imposed by the common law upon the judge, as made clear by Alford v. McGee (supra).

55 In my opinion, the failure of the trial judge to comply with the obligation imposed upon him by s 37(1)(c) of the Crimes Act 1958 was not inconsequential. It was likely to have been, or at least there was a significant risk of its being, material to the outcome of the trial. This was so, despite of the evidence presented to the jury at the trial being relatively brief in duration and limited in extent.

[T]rials of rape involving issues of consent and belief in consent - as distinct from denials of penetration - are cases which involve issues which are not always easy for the jury to grasp; a matter which no doubt underlay the introduction into the Crimes Act of the provisions now found in s 37.

1"> 57 Accordingly, I am of the view that ground 2 is made out. The failure to comply with the provisions of s 37 constituted an irregularity in the trial amounting to a miscarriage of justice within s 568(1) of the Crimes Act 1958.

58 In R v Zilm[26] Callaway JA said:[27]

Section 38(2)(a) of the Crimes Act 1958 contains a definition of rape. It provides that a person commits rape if he or she (1) intentionally sexually penetrates another person (2) without that person's consent (3) while being aware that the person is not consenting or might not be consenting. The three elements are therefore (1) intentional sexual penetration of another person, (2) the absence of that person's consent and (3) awareness, on the part of the accused, that the person is not consenting or might not be consenting. As I explained in R. v. Soldo, those elements are not difficult to explain, using the language of the Crimes Act. It is confusing, and inappropriate, to run the first and third elements together either by saying that the third element relates to 'the guilty mind of the accused' or that the Crown must prove that the accused 'intended to commit the crime of rape in the sense that, at the time of sexual penetration, he realized that the complainant was not consenting or might not be consenting'.[28]

59 In the course of his charge, the trial judge blurred the first and third elements of the charge of rape in precisely the manner which was the subject of the criticism by Callaway JA in Zilm. The charge included the following direction on the law:

Very importantly, the prosecution must prove that the accused intended to commit the crime of ... rape, in the sense that at ... the time of the act of sexual penetration of the woman, he was aware that she was not consenting, or else realised that she might not be consenting and determined to have sexual penetration, whether she was consenting or not.[29]

60 The principle in Zilm was squarely brought to the attention of the trial judge by counsel who appeared for the appellant when the judge took exceptions to his charge. However, his Honour took no step to redress the deficiency which had been identified.

61 Accordingly, the further complaint made by the appellant under ground 2 is also made good. The appellant was entitled to have the charge corrected to avoid the potential for confusion and to redress the inappropriate approach to the elements of the crime of rape identified in Zilm.

62 A further matter as to the direction given by the trial judge arises from Zilm. The trial judge in the present case told the jury:

But the question of reasonableness is no more than a guide. The belief does not have to be reasonable but it is a matter which you should take into consideration on the question as to whether or not he really had the belief.

63 In Zilm[30] Eames JA referred to R v Munday[31] in which Callaway JA held:[32]

In this case there was no risk that the jury would think that the matter of reasonableness was determinative. It was, as his Honour said, simply a guide and one guide among many. It will often be desirable, nevertheless, to balance the direction required by s.37(1)(c) with a clear statement that the accused's belief does not have to be reasonable as a matter of law and that the Crown must prove that, in fact, he was aware that the complainant was not consenting or might not be consenting. As Southwell AJA and I said in R. v. Ev Costa (unreported, Court of Appeal, 2 April 1996 at 22):

'Thirdly, whilst the standard charge is perfectly correct in directing the jury that '[i]n determining whether the accused believed she was consenting, you must take into account whether that belief was reasonable in all the circumstances', it would often be desirable to explain to the jury in simple language that the reasonableness or otherwise of a belief is no more than a guide to whether it was in fact held_._ As the Full Court said in R. v. Lucin (unreported, 25 March 1994) at pp.10-11, 'It does not follow that the unreasonableness of [the accused's belief] renders the defence untenable. It is merely a factor for the jury to consider in determining the accused's state of mind'.[33]

64 In the present case, the direction given by the trial judge, in my opinion, did not sufficiently emphasise the point stated by Eames JA in Zilm[34] that 'even if the jury concluded that the appellant had held an unreasonable belief that the complainant was consenting to his sexual acts, he would still be entitled to acquittal if the Crown failed to disprove that his belief, although unreasonable, was genuinely held at the time'. Although the jury did not ask a question on the matter, I am not satisfied that the matter was expressed with appropriate clarity in the charge, as it should have been in conformity with the approach described by Eames JA in Zilm to which I have referred.

65 Counsel for the Crown, did not make any submission that, notwithstanding the irregularities I have described, they were such that they should result in the dismissal of the appeal by operation of the proviso in s 568(1). In any event, had such a submission been made, I would not have applied the proviso in this case.

66 In Mraz v The Queen[35] Fullagar J[36] referred to a

long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.

67 In my view this was a case where the failure of the trial judge to relate the law which he had given to the jury to the facts in issue deprived the appellant of 'a chance which was fairly open to him of being acquitted.'

68 I was satisfied that the conviction of the appellant in this matter should not be allowed to stand and that on both grounds 1 and 2, leave to appeal against conviction should be granted, the appeal as instituted instanter and the conviction on count 2 (rape) quashed and order a new trial on that count.

69 There was, in these circumstances, no need to consider the application for leave to appeal against sentence.

[8] [2005] VSCA 196, [24]; see also R v Anderson [1996] VICSC 17; [1996] 2 VR 663, 666-669 (Winneke P); R v Zilm [2006] VSCA 72; (2006) 14 VR 11, 24 [56] (Eames JA): 'There is no inflexible rule as to how much of the arguments and evidence must be summarised, nor as to the assistance which the judge should proffer the jury.'

[9] R v Dao [2005] VSCA 196, [24].

[13] [2008] VSCA 144, [146]-[149].

[19] The trial was conducted between 28-31 May 2007. Section 37 Crimes Act 1958 was subsequently amended by the Crimes Amendment (Rape) Act 2007 which, in respect of s 37 applies to any trial that commenced on or after the commencement of the amendment, which was 1 January 2008.

[20] Victoria, Parliamentary Debates, Legislative Assembly, 9 October 1997, 430 (Jan Wade).

[29] Emphasis added and components relevant to another Count of indecent assault deleted.

[32] Ibid 440 (with whom Batt JA agreed).

[33] Emphasis of Eames JA added; emphasis in original omitted.

Amendment (Rape) Act 2007

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