R v Hakeem [2009] VSCA 131

CRIMINAL LAW - Sentence - Whether manifestly excessive - Age - Background - Drug use - Relevant considerations carefully addressed - Application refused.

1 On 14 August 2006, the applicant pleaded guilty in the Supreme Court to aggravated burglary (count 1), false imprisonment (count 2), attempted rape (count 3), rape (count 4), causing serious injury intentionally (count 5) and armed robbery (count 6). These offences were contained in Presentment T00581038B.

2 He also pleaded guilty to the charges in Presentment T00581038E namely, rape, (counts 1-5) and of causing injury intentionally (counts 6 and 7).

3 He pleaded not guilty however to two further counts of rape (counts 1 and 2) and one of false imprisonment (count 3) contained in a third Presentment, T00581038A. On 24 August 2006, the applicant was found guilty by the jury on counts 1 and 3 on that Presentment. He now seeks to appeal against these convictions on the grounds that -

1. a miscarriage of justice occurred as a result of the prosecutor's breach of s 399(3) of the Crimes Act 1958.
2. a miscarriage of justice occurred as a result of the prosecutor

(a) failing to give notice of her intention to rely on consciousness of guilt.

(b) failing to open consciousness of guilt.

(c) failing to advise that she would rely on consciousness of guilt at the time of the admission of the interview.

1. a miscarriage of justice was occasioned by the admission of the record of interview.
2. a miscarriage of justice occurred as a result of the learned trial judge's failure to warn as to the distress of the complainant.
3. the conviction for rape was unsafe and unsatisfactory.
4. the learned trial judge erred in permitting the prosecution to go to the jury on the basis that a crime could be proven without it being proved beyond reasonable doubt that the applicant penetrated the complainant.
5. a miscarriage of justice occurred by an aggregate of errors.

4 The applicant had no prior convictions, and, after a plea in mitigation of penalty was presented on his behalf, on 30 January 2007, he was sentenced to a total effective sentence of 24 years' imprisonment with a non parole period of 17 years for all offences, constructed as follows:

Presentment T00581038A

Count 1 - 7 years' imprisonment

Count 3 - 2 years' imprisonment

Presentment T00581038B

Count 1 - 3 years' imprisonment

Count 2 - 2 years' imprisonment

Count 3 - 3 years' imprisonment

Count 4 - 10 years' imprisonment

Count 5 - 6 years' imprisonment

Count 6 - 1 year imprisonment

Presentment T00581038E

Count 1 - 6 years' imprisonment

Count 2 - 6 years' imprisonment

Count 3 - 7 years' imprisonment

Count 4 - 7 years' imprisonment

Count 5 - 7 years' imprisonment

Count 6 - 1 year imprisonment

Count 7 - 1 year imprisonment

5 He has also sought leave to appeal against sentence in relation to all offences asserting that -

1. the sentence was manifestly excessive in all respects as to minimum and maximum terms and orders for concurrency.
2. the learned sentencing judge erred in finding that the applicant's first use of intravenous amphetamines

(a) partly explained a diminution of self control,

(b) failed to substantially mitigate the sentence.

1. the learned sentencing judge erred in imposing a sentence with insufficient time between head sentences and minimum term having regard to the applicant's youth.
2. the learned judge erred in imposing a double penalty on counts where the crimes involved compelling two complainants contrary to s 51 of the Interpretation of Legislation Act 1984.

Application for leave to appeal against conviction (Presentment T00581038A)

6 According to her evidence at the trial, L, then aged 16 years, left her home in Dandenong with a male friend, H during the day of 10 March 2005. After meeting another female friend they went to a Scout Hall located on the Princess Highway and known locally as 'The Castle'. L had never been there before. They entered the premises through a hole in a barbed wire fence and then the building through two doors which they secured behind them with a rope. Once inside, the two girls started 'chroming'. L described this activity as the breathing of fumes from paint that had been sprayed into bags.[1] They did this for a few hours and then all three switched to the smoking of marijuana. After this, the female friend left, and H and L fell asleep at the top of a flight of stairs.

7 About 15 or 20 minutes later, L awoke upon hearing sounds indicating the presence of some other persons. H was still asleep. She looked down the stairs and observed two 'black men' enter the hall. She moved down to the vicinity of the toilet block approximately 10 metres from the exit and called to H to join her. After securing the door in a similar fashion to that adopted by L and her friends, the men started to move towards her. L called to H that they had to get out of there and ran towards another door on the opposite side of the hall. However, she found that it was bolted. One of the men followed her, grabbed her by the arm and pointed towards the male toilets. She attempted to force herself away from him. The second, a taller man, was standing near H at this stage. When she started to struggle, this man walked towards her. L said the men 'both grabbed me and sort of forced me over to the door we entered and exited through'.[2] She broke free, ran to the door and tried to untie the rope, 'then they both grabbed [me] and [I] was sort of kicking, pulling, trying to get a hold and after that they sort of started forcing [me] towards the toilets, past the toilets into the end room.'[3]

8 L did not see H from this time. He gave evidence that he left in search of help. She stated that she recalled that one of the men, who she described as 'African black',[4] had a large scar on the right hand side of his face extending from the eyebrow down to his mouth. He was the taller of the two and was not the one who took hold of her first. Both men forced her to a room past the toilets. The shorter man ordered her to pull down her pants. When she refused, he grabbed her by the throat. When asked where the man with the scar was positioned at this point, she replied

He was standing, he kept on coming in and out sort of thing. He was like walking in and out of the room. At the point that the guy grabbed me by the throat the other man had come in and was helping him. They both had their hands around my throat.

9 The man who remained in the room covered her mouth, but she continued to fight and scream. Apparently, in order to control her, he picked up some cardboard with which he struck her all over her body. The taller man walked in carrying a piece of wood which however was not used. Then both men walked out together.

10 L was pulling up her pants when the men returned and commenced to search through her pockets. The shorter man starting dragging her pants down. He sat on the ground and pulled her with him. He then raped her using a condom at her request. Once this had occurred, this man called to his friend, and put his penis back inside his pants. L did not see him remove the condom. She was left alone for approximately 2 or 3 minutes before the same man came back and raped her again. He then left and the taller man returned. Her pants were still down from the previous incidents, and he also raped her. He did not wear a condom.

11 The trial judge summarised this evidence by stating that

... in terms of talking about the first man, [the victim] said that he raped her twice and he had a condom on. [The victim] said that was the shorter guy. The other guy was outside. [The victim] said when he came in she was asking if he had put a condom on, 'and he sort of said no and, you know, he started forcing me to have sex with him.' [The victim] said the second one did not put a condom on.

12 Both men hit her with the cardboard, and, during the times that she was raped by the shorter man, he bit her face, and punched her. L asked the taller man whether they were going to let her go, 'he said yes, did his pants up, then they left the building'.[5]

13 L hid as she could still hear them and was worried that they would come back. She waited for approximately half an hour before leaving herself.

14 With respect to the identification of the person who had used a condom and which of the men had raped her once or twice, the trial judge said

She [the victim] said that the taller male with the scar on his face [the applicant] refused to put the condom on, and she said did not put a condom on. And she said she was very clear about that. She said that it was correct that she had said to the police in her statement that when the shorter man got into the shower area the other guy came in. She said it was correct that it was the short stocky guy who did all the pushing and pulling and shoving her into the shower room, and she said that is the guy that wore the condom. It was the short stocky guy who dragged her to the toilets and she said it is the condom that enables her to say that it is the short stocky guy.

She said that she had been grabbed by the throat in the shower room by both of them, and she said it was clear in her mind that it was the short stocky guy who came back and raped her a second time, and that at that stage he still had the condom on. She said there was no doubt in her mind about that.

She said it was the tall guy with the scar on the face her (sic) raped her second. She said that she was able to say that because she had a clear memory of the tall man with the scar on his face, and it was the tall man with the scar that only raped her once.

15 Forensic scientist Debra Maureen Ryan gave evidence that she had conducted an analysis of the DNA contained in the condom and found that the seminal material matched the DNA profile of the applicant.[6] It would also seem to be clear enough that he was the person described by L as the taller guy.

16 Although, when interviewed by the police he had denied being present in the building at all on that day, at the trial the presence of the applicant was not disputed. He did have a large scar on his face and it was put to L by his counsel that she had engaged in consensual sex with him.

The background to the offences contained in Presentment Nos: T00581038B and T00581038E

17 As earlier mentioned, the applicant pleaded guilty to the counts contained in Presentment T00581038B. The prosecutor in the Court below when opening the matter before the sentencing judge provided the following summary of the facts relating to those offences:

On Friday 11 March 2005 the victim ...was alone in her home ... in Dandenong. The victim was aged 63 at the time and was residing in Australia on a prospective spouse visa from the former Yugoslavia, the sponsor being her estranged husband.

[The victim] had been to the market that day. On her return home she locked the door behind her, unpacked her shopping and attended to other domestic chores. She was in the laundry when she heard noises at the front door. [The victim] walked through the kitchen into the loungeroom where she saw the [applicant] inside her flat putting the security chain across the door (counts 1 and 2)....

The victim told the [applicant] to 'go'. He pulled the curtains across and told her to 'sshh', putting his finger across his lips. The [applicant] then commenced to punch the victim with a clenched fist to the eyes in a flurry of punches which she described as like a boxer ... That's the commencement of Count 5 which is the intentionally cause serious injury count ... [it] is a rolled-up count representing what where the two original intentionally cause serious injury counts and what is inclusive of all the injuries and blows that were inflicted upon her ...

The victim was bleeding profusely. The [applicant] pushed her into the bedroom where she fell on her back onto the floor. The [applicant] lay on top of her and started applying pressure to her throat with his fingers. This made it difficult for her to breathe or to utter any sounds. The [applicant] then removed the victim's underwear and unzipped his jeans. He then tried to put his penis inside her vagina. [The victim] was struggling so hard he got frustrated and stopped ... and that is Count 3, the attempted rape.

The [applicant] them (sic) walked into the kitchen and as he did so the victim crawled to a window to yell for help. The [applicant] returned with a knife that he had obtained from the kitchen and the victim states she thought he was going to slaughter her ...

[The victim] tried to fight off the [applicant] pushing him with her feet. Holding the knife in his hand he took off her trousers. Her face was bleeding profusely. She was holding it, that is her face, and losing consciousness. The [applicant] threw [the victim] on the bed and put his fingers on her throat chocking her whilst holding the knife. She begged him. 'Please, my son hospital'. The [applicant] then bit her on the face between her nose and lip causing her lip to be torn open. During this time the [applicant] continued to bash her, pushing her from the bed to the floor. The victim lapsed in and out of consciousness and she tried to kick him, and he continued to punch her in the face'... [this] is also a continuation of Count 5, that is the intentionally cause serious injury count.

The victim continued to resist the [applicant] as he attempted to penetrate her vagina with his penis by wiggling her buttocks, dragging him by the hair and scratching him. She couldn't see anything because of the injuries to her eyes and she was covered in blood. The [applicant] succeed in penetrating the victim's vagina with his penis (Count 4).

The victim was on the floor of the bedroom and the [applicant] continued to rape her. She was naked from the waist down. He then held the knife in one hand and with the other hand choked her around the throat pushing the two fingers into her throat. They he lay on top of her and slashed her across the throat with the knife once and then a second time deeper. [The victim] states she thought she was going to die and she repeatedly begged him to take her to hospital ... Again the use of the knife slashing her across the throat ... [constitutes] part of the intentionally cause serious injury.

After he had slashed her throat with the knife [the victim] begged to be taken to hospital and offered the [applicant] money. She gave him $100 from her purse. He then took all the change and pulled out her credit cards ... Count 6 ... robbery.

The [applicant] said, 'Sorry Mum, sorry Mum' before fleeing by breaking the kitchen window and jumping down to the ground below.

18 In relation to Presentment T00581038E the prosecutor stated -

On Saturday 12 March 2005 at approximately 1 p.m. [the female victim] (date of birth 3 July 1988) and [the male victim] (date of birth 30th December 1988) both aged 16, were inside the small building adjacent on the scout hall in Hemmings Park Dandenong. This small building has one main room and two smaller rooms and is known as The Squat. Young people from the area frequently attend there to spend time together, smoke cannibis and to chrome.

The victims had barricaded the door and were talking to each other with (sic) [applicant] forced his way inside. [The male victim] told him they were having a private conversation and wished to be left alone. The [applicant] held up some empty cans indicating that he wanted to do drugs. [The male victim] told the [applicant] he could get drugs, and there was some discussion about money with the [applicant] producing a $20 note and a $5 note.

The [applicant] them (sic) assaulted [the male victim] by punching him to the face and told him to stay on the bed (Count 7). He punched [the female victim] to the face and whilst she was on the ground held a metal stand from a table over his head threatening to smash her if she moved ... He then stood over her with a razor blade in his hand, he slit her clothes down the middle, including singlet and bikini top, exposing her breasts. Then he cut her tracksuit pants and underwear. She was then naked.

The [applicant] made [the male victim] take his clothes off. When he resisted the [applicant] hit him in the head with a half a brick making his mouth bleed (Count 7) ...

[The female victim] was forced to perform oral sex on [the male victim]. She did so through fear. Neither consented and both participated through fear. Both were punched and threatened with a razor blade. That refers to Counts 1 and 2, being the mirror images of the oral sex that the victims were made to perform.

[The male victim] was then forced to have sexual intercourse with [the female victim]. Again both participated through fear of being further assaulted (Counts 3 and 4), and again that refers to the mirror image counts of forced penile vaginal sex.

Whilst this was occurring the [applicant] went through [the female victim]'s handbag and spilled the contents. Inside the handbag was a pair of scissors which he retained and used as a weapon. After the [applicant] forced [the female victim] and [the male victim] to have sexual intercourse he told [the male victim] to lay on the couch. He pulled his penis out and had sexual intercourse with her. That is the rape by the [applicant] of [the female victim], Count 5.

The [applicant] forced [the female victim] and [the male victim] to have sexual intercourse again. The [applicant] then would alternate with him having sexual intercourse with [the female victim] and then force [the female victim] and [the male victim] to have sex. In total [the female victim] and [the male victim] were forced to have sexual intercourse on three occasions. So that the Counts 3 and 4 which are the forced penile rapes are rolled up counts and represent the total of the three occasions. In total the [applicant] raped [the female victim] on four occasions, and again Count 5 is a rolled up count representing the four rapes by the [applicant] on [the female victim].

Both [the female victim] and [the male victim] were forced to cooperate through fear, threats of violence and actual violence. Both were hit with a half brick. Threatened with a razor blade and punched. The [applicant] on two separate occasion put his hand around [the female victim]'s throat and squeezed her windpipe and her neck. He threatened her with the scissor and razor blade. He put the razor blade to her breast and nipple on one occasion before rapping her. On another occasion he put the scissors near her vagina when she was made to lie down. Before he slashed her clothes off with the razor the [applicant] cut some of [the female victim]'s hair off, and later cut some more, and [the male victim]some of [the male victim] (sic) hair when he was forcing them to have sex. He put the hair in his pocket.

On the last occasion [the female victim] and [the male victim] were forced to have sex [the female victim] heard a friend of hers, Amy Brown, calling all (sic) for her. Amy Brown had attended the squat with another Sudanese male, a Mr Younis Miro. [The female victim] started calling out for help. The [applicant] pushed Brown out shutting the door in her face and raped [the female victim] again until he ejaculated, and that is part of count 5, that is a rolled up count, and the last occasion that he raped [the female victim] ... It is four occasions in total.

The application for leave to appeal against conviction

19 In the course of her final address to the jury, the prosecutor directed their attention to the importance of distinguishing between evidence and assertions made either by the defence counsel or herself in their addresses or in the form of questions asked during the hearing. When dealing with this aspect, she stated -

[Counsel] said that the issue was one of consent. It might be one of the issues. But let me tell you, [L's] evidence on this issue remains uncontradicted.

No complaint was made by counsel for the defence at the time. However, in this Court, it was claimed that the jury would almost certainly have interpreted this statement as pointing out that the applicant had refrained from giving evidence in contradiction of L's version. Accordingly, it was said, s 399(3) of the Crimes Act 1958 had been breached.[7]

20 The purpose of the provision is obvious enough, namely to ensure that the right of an accused to remain silent [in the context of an accusatorial proceeding in which he or she bears no onus of proof] is not diminished or compromised by a comment that the accused has not availed himself or herself of it. Whether or not the sub-section serves any useful purpose or, indeed, may be counter productive when it can be claimed with reasonable confidence that every jury member would be aware of the right of an accused to give evidence, has been debated for many years, but is beside the point here.

21 It is clear that an offending comment need not be made directly and can be conveyed by the 'most subtle allusion'[8] to the fact that the accused has not availed himself or herself of the right to give evidence on oath. The vice attributed to a comment of this kind is seen to arise from the implication considered to be inherent in it that reliance by an accused upon the right recognised by the law to remain silent is suggestive of guilt. In other words, it is perceived that the jury might reason that an innocent person would be prepared to enter the witness box and attest to his or her innocence and, further, that such a perception, could affect the jury's understanding of the burden and standard of proof in a criminal trial.

22 In the present case, the impugned remark was made in a single sentence and in the context of an appropriate distinction being made between evidence and assertion as the passage in which it appears makes apparent -

Dealing with the evidence, I want to return to what I was saying to you. The Crown case, our obligation to prove a case beyond a reasonable doubt is not a search for the truth. It's a question of dealing with the evidence and the answers - when someone is cross-examined, for example, the answers are the evidence, not the questions. His Honour again will give you a direction about that, and in this case it's an important one because the opening, or my opening and defence's reply to my opening, they said that the issue - he said the issue, [applicant's counsel] said that the issue was one of consent. It might be one of the issues. But let me tell you, [L's] evidence on this issue remains uncontradicted. That is, she says she was raped and she was not consenting to it. So be very careful when you examine the evidence and what's called puttage. Someone puts a scenario to a witness. 'I put it to you the car was red, you saw this car and it was red?' 'No, I didn't.' There's no evidence that the car was red. That's an example. It's a very simple one. But you'll remember there were a series of propositions that were put to [L], you know, about meeting the accused out in the park or something, and coming back in and having consensual sex, I think having - sharing chroming, drugs together and so on.

She denied that. She denied each and every one of those propositions so there is no evidence at all of that.

Now, it is true, however, that you can if you wish to look at [L's] evidence and say, 'Well, look, we can't be certain.' And when I say 'her', I shouldn't say just her, because the Crown relies on not only [L], we rely on a whole range of pieces of evidence to prove the case. But just dealing with [L] at the moment, it is true you can look at her evidence, as you can any witness, and say, 'well, yes, reliability issue, can I rely on that witness?' And no doubt my learned friend will say probably you can't.[9]

23 The thrust of the prosecutor's remarks were directed to drawing the attention of the jury to the need to decide the case on the evidence before them, including the inferences that could properly be drawn from it. Evidence, it was pointed out, was given by witnesses and not those at the bar table by way of 'puttage'. She was concerned to draw the attention of the jury to the reality that there was no evidence to support the assertions put by counsel in the form of questions to the complainant. She emphasised that the jury had to determine the extent to which they were prepared to rely upon by L's evidence and that of the other witnesses in the trial, using their own powers of judgment and life experience. The trial judge, in his charge, directed the jury in very similar terms -

... it is the answer given by the witness which constitutes the evidence and not the question put by counsel, except obviously to the extent to which the witness agrees with the question.

Questions, particularly those in cross-examination, may be asked. Allegations of fact may be put to witnesses in a most positive, confident and convincing manner. That is a skill that barristers, experienced barristers, at least, possess. But no matter how positively or confidently the proposition is put, it is the answer given by the witness that provides the evidence in the case, and I will take a fairly simple example, nothing to do with this case.

If Mr Lloyd, my Tipstaff who has been looking after you, had been cross-examined and counsel said, 'I put it to you last Thursday at 5 a.m. you were driving along the Nepean Highway?', and he said, 'No, I wasn't.' There is absolutely no evidence, given that answer, that at 5 a.m. last Thursday Mr Lloyd was driving down the Nepean Highway. He said, 'No, I wasn't', that is the evidence.

Now, of course if there was some evidence, it would have to come from some other source, quite possibly in Mr Lloyd's case one of those speed cameras might have got him. Well, then there might be some evidence before you but his answer is not evidence that he was. So some other source might establish what the evidence was but not his answer. And you will bear that sort of proposition in mind in this case where allegations were put to several witnesses and were denied by them.[10]

24 There is no reason to suppose that the remarks of the prosecutor would have been perceived differently from the unassailable instructions given by the trial judge on this aspect.

26 Two basic contentions were advanced in support of these grounds. The first was that, by reason of the presence of a number of considerations, the admission of the record of interview of the applicant was unfair in the circumstances.[11] Second, it was submitted that, if the prosecutor contemplated that what were acknowledged to be deliberately false statements made by the applicant to the police, were to provide the foundation for a Crown argument that he had demonstrated consciousness of guilt of the offences alleged, this should have been made clear at the outset. In any event, it was said, this should have happened at least before the evidence of the interview was given. Counsel for the applicant, it was said, would then have been in a position to appreciate fully the ramifications of its admission and, in particular, any unfairness that might attach to it and presumably have argued for its exclusion.

27 There is no substance whatever in either of these complaints.

28 Dealing generally with the evidence of the police interview, it is apparent that a great deal of attention was given to what should be adduced before the jury. The record of interview was heavily edited by agreement from 1127 questions and answers on 209 pages to 275 questions and answers on 55 pages and then tendered by consent. It was certainly not suggested by counsel at the trial that its introduction in this modified form would be unfair. The circumstances under which the interviews were conducted would have been appreciated by him from the outset and the possibility of a submission by the prosecutor that his client had demonstrated his consciousness of guilt had been left open in the discussions that took place in the absence of the jury.

29 As the judge instructed the jury, the Crown relied on two lies. The first was claimed to demonstrate consciousness of guilt. It was told on the occasion on which the applicant was first questioned by police concerning the matter. He lied to them when he claimed that he had not been inside the Scout Hall at all on the day in question. That lie was obviously material and could clearly provide an adequate foundation for a consciousness of guilt submission in the circumstances. There has been no contention that the directions given by the judge on this aspect were insufficient or incorrect.

30 The second lie concerned the time at which the applicant attempted to change his appearance by braiding his hair and was relied upon as showing the unreliability of the version given by him to the police. In all likelihood, the police regarded the change in appearance as designed to render his identification more difficult and it may well have been arguable that this post event conduct could also have been relied upon to support a consciousness of guilt submission by the prosecution. However, what could be described as a more conservative approach was taken.

31 With respect to this matter, the applicant initially stated that the hair change had been made a week earlier, that is, before, the events in the scout hall. The police learned that that was not the case and sought an explanation from him. He was asked -

Q: Is that true about braiding your hair one week ago?

(SUSPECT THROUGH INTERPRETER):

A: Not one week.

A: I don't remember.

Q: Why did you tell me one week ago?

A: I don't know why I told you so.

Q: Did you lie to me?

A: When - when they brought me here I couldn't concentrate, but now I'm - I'm answering to - to escape or to get - get rid of - when I was sitting on the chair I was shivering because I was afraid. You remember?

(INTERPRETER):

He is asking me, 'You remember that. Are they going to kill me?'

(SUSPECT THROUGH INTERPRETER):

That's why I tried to give just an answer.

DETECTIVE SENIOR CONSTABLE COOPER:

Q: Hakeem, I asked you when you braided your hair and you told me one week ago on Monday. Is that true?

A: Yes, correct.

Q: So when did you braid your hair?

A: In accordance of what I said.

Q: Well ---?

DETECTIVE SENIOR CONSTABLE LAWRENCE:

Sorry, I didn't hear that. Can you say that again?

(INTERPRETER):

'In accordance of' - exactly, 'In accordance of what I said.'

DETECTIVE SENIOR CONSTABLE COOPER:

Well, we have been making inquiries, Hakeem, with friends and relatives and that's not the truth. When did you braid your hair?

(SUSPECT THROUGH INTERPRETER):

A: In fact, I did it today.

Q: Today is Tuesday.

(SUSPECT):

A: Yeah.

Q: Did you do it yesterday?

A: (NO AUDIBLE REPLY)

Q: Why - why did you tell me you did it one week ago?

(SUSPECT THROUGH INTERPRETER):

A: I don't know why I said so.

Q: Who did your hair?

A: My sister.[12]

32 There was nothing unreasonable in the police pursuit of either of these lines of enquiry, which were relevant to their investigations. Nor could it be said the form of the questioning adopted by them in the circumstances, was unfair, though it may be acknowledged that it was searching. The fact that he lied was put directly to the applicant, but it was never suggested at the trial that his will may have been overborne or that he was misled, tricked, intimidated or exposed to undue stress in any way. The only circumstance that could conceivably provide support for such a claim was his mention to the interpreter that he had asked about being killed. This statement could hardly have escaped the attention of his counsel and, if regarded as anything more than a feeble attempt to extricate himself from his position, would undoubtedly have been addressed. It is to be noted that no attempt was made to pursue the applicant's reference and not difficult to see more than one reason why counsel may not have done so. The interpreter certainly did not acknowledge at the time of the interview that anything of that kind had been said to him.

33 Turning then to the complaint that some unfairness to the applicant may have been occasioned by the failure of the prosecutor to make clear, prior to the admission of the evidence of the applicant's police interviews, that he proposed to use the lies in the ways mentioned, again we do not consider that it has any force. Counsel for the applicant was aware from the beginning of the trial that his client had told the obviously material lie that he had not entered the hall at all at the relevant time. The possibility that it might be used to found a consciousness of guilt submission, as we have mentioned, had been raised in the course of discussion between both counsel and the trial judge. Whether or not the untruth was ultimately to be put before the jury on that basis, it would have been apparent to all involved and, specifically, to counsel for the applicant that its admission was significant. He made no submission it should be excluded. All of the circumstances in which the applicant was questioned were known to him and it is reasonable to infer that they were taken into account in the substantial editing process that preceded the admission of the evidence of consent. Finally, there was nothing in the circumstances themselves that could reasonably give rise to any concern that the absence of a reference to this aspect may have resulted in a miscarriage of justice.

35 The prosecutor in her final address to the jury twice dealt with evidence of the complainant's distress, first, referring to the evidence of one of the police members to whom L reported the events, two days after their occurrence. In relation to his evidence, she said -

I have talked about the evidence that is consistent, if you like, with [L] and with the Crown case. H's evidence, I've talked about that. I've talked about he says two black men one of whom we say is the accused. The next piece of evidence, the second piece of evidence that is consistent, is that of Detective Senior Constable Masters. He is the police officer who, on 12 March 2005, attends at the scout hall at abut 7 p.m., and you will remember Detective Lawrence, yesterday, saying he directed Detective Masters to speak to [L], and he did.

There is certain things I'm prevented from leading. I'm not permitted to lead what is called hearsay evidence. These are the conversations that they had. But I am permitted, and did lead, evidence of what he saw. That is the observations he made of [L]. That she was crying, that she was distressed, visibly upset are his words, obviously been crying. Was very emotional, quite traumatised. That is the first thing, and you might think that that fits.

The second thing is that he observed certain injuries on her. That is he observed abrasions and - scratching to her neck and other than that he said her face was very red, she was very teary. Those marks to the neck, we say, are consistent with her being grabbed by the neck, as she has given evidence about. Not only do I say that but Dr Harry, who is the expert, has said that.[13]

36 In this passage, the prosecutor invited the jury to have regard to the observations of Senior Detective Masters, which included indications that L was distressed when he first saw her, as being consistent with her evidence concerning what had transpired.

37 The complaint has been advanced that his Honour should have warned them that evidence of this kind will generally be of little value and particularly so in a case in which the observation was made two days after the alleged attack was made.[14] No objection was taken to the admission of this evidence by counsel at the trial and no exception was taken to the judge's charge arising from the absence of any instruction concerning it. We wonder whether, as a practical proposition, it is ever really necessary to instruct a jury of presumably reasonable people to whom may be attributed a modicum of common sense that distress can be feigned or related to other considerations such as embarrassment at one's own behaviour and that it would have to be approached with circumspection. Obviously, it would certainly have been more consistent with authority for the judge to have provided a caution in this case. The question is whether the absence of such an instruction, gave rise to the reasonable possibility of a miscarriage of justice in the circumstances. The answer must, we consider, be - no. The defence in the trial was that the complainant had engaged in consensual sex with the applicant and, for some reason, subsequently decided to assert that she had been raped. The jury considering the matter can be taken to have complied with the judge's directions as to the burden and standard of proof in a criminal trial and, in the process, made their assessment of the complainant's reliability. This obviously included the evidence of distress. It defies reason to suggest that they would not have considered the possibility that her presentation was feigned or may have been occasioned by some other concern. This was not a form of behaviour that was outside ordinary human experience or that they may not have appreciated had to be considered.

38 The second occasion on which the prosecutor referred to distress, occurred when summarising the Crown contentions. She stated -

I'm getting pretty close to finishing, so what I say to you is that when you analyse this case properly - and when I say properly, carefully. And you look at all the pieces of evidence, this really is a very overwhelming, strong Crown case that proves that the accused man was there. That proves that he was one of the men that was there, scar on the face, remember, one of the two men. And with [L's] evidence and [H's] evidence, [H] saying that she was screaming and so forth, together with the evidence of injuries, distress, so on.[15]

39 Counsel appearing for the applicant at the trial cross-examined L about some injuries that she had inflicted upon herself, a few days after the events in the scout hall. Presumably in order to explain the presence of bruising on her body when she was subsequently examined by a medical practitioner, Dr Harry, she was questioned as to whether she had, at various times, run into bushes whilst skateboarding in the adjoining park. She denied that this had ever happened. Counsel for the applicant then asked -

Ok. Also when you saw Dr Harry you had some scarring on your forearm; is that right?---That's correct.

And that had come from earlier times in your life where you'd slashed your arm; is that right?---Yes, that's correct.

You did that when you were upset and angry about things, I take it?---Yes.

Am I right that on the Sunday after you say the events take place on 10 March, on that Sunday, you again slashed your arm; is that right?---Yes, I did.

And that was with some broken glass?---Yes.

When you did that I assume you were pretty upset and angry; yes? Sorry, you have to answer, I'm sorry- - -? ---Yes, I was.

And am I right that when you did that you cut your arm?---Yes, I cut my risk, (sic) yes.

You did?---Yes.

How many cuts do you remember putting on your wrist?---About four or five, same spot.

Did they bleed?---Yes.[16]

40 The forensic objective of this line of cross-examination is unclear but more likely than not it was directed to the possible emotional instability of L and the issue of her reliability as a complainant.

41 Unsurprisingly, the prosecutor took up the matter in re-examination.

PROSECUTOR: Now, earlier in the cross-examination you were asked some questions about afterwards when you went home? ---Yes.

Or it might've been on the Sunday, I think it was, about cutting your wrists?---That's correct.

My question to you is why were you doing that?---At the time of the day I was walking in Hemming Street with friends - - -

Let's just stop. Let me ask it this way: did it have anything to do with this or was it - - -?---Yes, it did.

Yes?---I just started cutting myself because I hadn't told anyone at that point what had happened to me.

Leaving aside that, in terms of your - you know what I mean by your state of mind, your feelings?---Yes.

Why were you doing it?---Because I felt like I'd just been violated and I just got raped and I hadn't told anyone and at the time didn't realise really what I was doing, just felt like hurting myself.[17]

42 In this Court, the contention has been advanced that this evidence of apparent distress should have been the subject of a specific warning by the judge in his charge to the jury.

43 Somewhat inconsistently with the position put to L, and with which she agreed, that she had injured herself on the Sunday following the events, defence counsel in his cross-examination of Dr Harry asked -

But you certainly didn't find three to four injuries on that part of her body that would have been bleeding the day before?---The forearm, there were marks on her forearm that I've recorded as oral transverse linear scars.

Yes, so nothing - sorry, my apologies?---Sorry?

Sorry, I didn't mean to interrupt you, Doctor?---That's all right. Old transfers, linear scars, they certainly weren't bleeding at the time that I saw her. I don't think it's possible to say when they were inflicted but I've written down here 'old' so some of them must have been fairly white, whitish purple, and healing.

The fact that you refer to them as scars suggests, doesn't it, that they are injuries that have healed and they've left a scar. Am I right about that?---Yes, yes, yes.[18]

44 At no stage in the proceeding did the Crown appear to rely upon the evidence relating to the complainant's subsequent self harm for any purpose whatever and specifically as being capable of providing support for her evidence. No direct reference was ever made to it. In the first of the passages set out at [35] above the prosecutor drew the jury's attention to the observations made by Senior Detective Masters at the time of his initial contact with the complainant and the second reference set out at [38] above was made in the course of a final 'wrap-up' of the Crown case. It is also to be noted that no exception was taken by counsel to the judge's charge in this respect.

45 We do not consider that the evidence of the infliction of self harm by the complainant required the provision of a direction in the circumstances. There were, as the jury would undoubtedly appreciate, a number of reasons why a clearly troubled young person may have acted in this way. The prosecution did not endeavour to use it and, again, the jury as reasonable people can be taken to be aware that there could be more than one explanation for this behaviour. In any event, it is difficult to see how, if any were given, it could have done other than operate to the applicant's disadvantage in the circumstances. The level of distress inherent in the infliction of self harm would, it could reasonably be assumed, be perceived by most people as very high and any emphasis upon it would very possibly result in a connection being made between it and the possible precipitating cause whatever instruction was given. There is no difficulty in understanding why having raised the issue of self harm, counsel for the applicant did not pursue it or seek that a direction be given.

46 The contentions advanced in support of these grounds were outlined in the written submissions provided to the Court on behalf of the applicant as follows:

On the day of the alleged crime the complainant had delusions and hallucinations and was disinhibited. The prosecution went to the jury on the basis that the complainant was wrong in her evidence and had made a misidentification as to the person who raped her without wearing a condom. It was alleged with some force to be another man other than the applicant. The applicant's DNA was found in the discarded condom. He could not have been the person who did not wear the condom. The jury should have found a reasonable doubt on all of the rape counts. The errors above were cumulative and caused a miscarriage.

47 There could be no doubt in the minds of any of those involved in the trial that L's version of events did not accord with the objective evidence and that she was either being untruthful or had become confused concerning the respective roles played by the two men and had transposed them in her mind. The prosecution went to the jury on the latter basis. It was not disputed that the applicant had engaged in sexual intercourse with her and the question to be resolved was whether the Crown had established beyond reasonable doubt that he had done so without her consent. There was support for significant parts of her version in the evidence of the witness H, the presence of some injuries upon her body and the admitted lie of the applicant that he had not been in the hall at all on that day. It would be, of course, one thing for a young person affected by paint fumes and marijuana who had undergone a terrifying experience of the kind claimed by L to become confused as to which of two men raped her first and as to which of them was wearing a condom at the time and quite another to invent an incident of rape where there had been later regretted consensual sex. The jury rejected the second possibility, and accepted that the complainant had been raped at least once by the applicant.

48 Ground 6 has been effectively addressed in dealing with ground 5 and the other grounds not being sustained, ground 7 also fails.

49 We consider after a review of the evidence in accordance with the principles set out in M v R that the verdicts were open and that the intervention of this Court would not be justified.

50 It follows that the application for leave to appeal against conviction must be refused.

The application for leave to appeal against sentence

51 In support of this application, counsel argued that given the age, background and the claimed use by the applicant of amphetamine for the first time, the individual sentences, total effective term imposed and the non-parole period fixed were all manifestly excessive.

52 It is apparent upon perusal of his Honour's sentencing remarks that he carefully addressed each of the considerations upon which reliance was placed in this Court. Rather than recite them, those remarks will be annexed to this judgment.

53 His Honour can be seen to have directed attention to all relevant factual circumstances and sentencing principles in the determination of the appropriate sentences to be handed down. The individual sentences were clearly available in the proper exercise of discretion, indeed, in some cases they could be regarded as very lenient. Subject to the principle of totality, it was necessary for his Honour to make orders for cumulation to reflect the separate occasions of offending and the fact that there were a number of separate victims. The conduct in which the applicant engaged on each occasion, on any view of the matter, constituted an extremely serious example of each of the offences committed. The overall sentence was substantial but the proper exercise of the judge's discretion required that it be so. We do not consider that it could be properly described as manifestly excessive.

54 As further argument to the effect that in imposing separate sentences for the offences in which the two complainants in Presentment T00581038E were forced to engage in sexual activity with each other, the applicant was subject to double punishment is entirely misconceived. The relevant principles have recently been discussed in R v WWS.[19] There were separate offences committed against the two victims. Each of them was subjected to assault and rape. There was no question of double punishment arising from the fact that they were addressed separately and certainly no question of double punishment arises.

55 The application for leave to appeal against sentence is also refused.

(3) The failure of any person charged with an offence to give sworn evidence shall not be made the subject of comment to the jury by either the prosecution, or by the presiding judge.

[8] Battaillard v R [1907] HCA 17; (1907) 4 CLR 1282.

[11] R v Lee & Ors [1950] HCA 25; (1950) 82 CLR 133; Collins v R [1980] FCA 72; (1980) 31 ALR 257; Cleland v R [1982] HCA 67; (1982) 151 CLR 1; R v Swaffield [1998] HCA 1; (1988) 192 CLR 159.

[12] Police tape-recording interview, 31-32.

[14] R v Knight [1966] 1 WLR 230; R v Flannery [1969] VicRp 72; [1969] VR 586; R v Brdarovski [2006] VSCA 231.

[19] [2009] VSCA 125.