R v K D Y [2008] VSCA 104

1 For the reasons expressed by Redlich JA, I would refuse the application for leave to appeal against conviction.

2 Following a trial before a judge and jury in the County Court, the applicant, K, was convicted on one count of committing an indecent act with a child under the age of 16 years and was sentenced to six months' imprisonment, such sentence being wholly suspended for a period of three years. The applicant now appeals against his conviction.

3 The trial was very short. The evidence of the five prosecution witnesses, closing addresses by counsel for both the prosecution and the defence and the trial judge's charge were all completed in the course of one day.

4 The applicant seeks leave to appeal against his conviction on grounds which relate to the adequacy of the directions given concerning circumstantial evidence, the answer given by the trial judge to the jury question 'does the verdict boil down to who we believe' and whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence.

5 It is convenient to set out a summary of the evidence and refer to some of the circumstances of the trial. The complainant who was aged 13 at the time of this offence was a friend of the applicant's daughter, S. On the last weekend of the school holidays in July 2004, the complainant went to stay with S at the applicant's house in Mill Park. The applicant who was divorced, had moved into the house some two weeks earlier. The complainant had stayed at the house with S on one prior occasion. On the Friday night the complainant slept on a couch in the lounge room. On that night it appears that the applicant and his daughter, S, slept in the applicant's bedroom in the only bed that was in the house. On Saturday night the applicant's son, C, then aged nine, slept on the couch. A friend of the applicant, a

man named T, was also staying at the house at this time and he slept on a red bean bag in the lounge-room. When it was time to go to bed, S suggested that the complainant sleep with her and the applicant in the applicant's bed. The complainant went to bed with S who commenced to read a book. According to the complainant, she was talking to S when the applicant joined them in bed. The applicant began to draw letters and shapes on the complainant's back over her clothing and commenced to tickle her. At first the complainant thought it funny but it became irritating and she told the applicant to stop. S also told her father to stop. The applicant continued to tickle the complainant. The complainant, who described the applicant as 'really fat', could feel his belly touching her back. She fell asleep whilst the applicant was continuing to tickle her back.

6 The following morning when the complainant woke up, she was alone in the bed with S. The complainant testified that the applicant then came back to the bed and commenced to draw shapes on her back in the same way as he had the night before. The applicant then put his hand under the complainant's clothing and whilst he was continuing to draw went up as high as the complainant's bra. The complainant was facing S and had her back to the applicant. The complainant said she was too scared to turn around. The applicant then put his hand on the complainant's bottom on the outside of her clothes. He began to move his hand slowly towards her inner thigh and left his hand there. Shortly thereafter S got out of bed and the complainant moved as far away from the applicant as she could. The applicant then got out of bed. When the complainant got up she sent her mother a text message requesting her to come and pick her up. The complainant walked out of the bedroom and then fell down because she had been 'tense' and was 'freaking out'. She sat up against the wall and the applicant who was in the lounge-room said 'smile' so the complainant smiled.[1] Shortly thereafter the complainant was collected by her mother. The complainant said nothing to her mother about the incident but told her best friend EH at school on the following Monday. The complainant said that she did not want to tell an adult because she was scared that something could happen.

7 About three days later, the applicant sent the complainant an MSN message enquiring how she was and informing her that his factory had burned down. Some weeks later, the complainant, encouraged by EH, reported the incident to a school counsellor.

8 In cross-examination, the complainant agreed that the applicant's friend T, who was about the same age as the applicant, was at the house. She also agreed that the bedroom door was always left open so anybody could walk in and out. She said that when the applicant came to bed on the Saturday night, there was some conversation involving S, the applicant and herself. The complainant also said that S became irritated because the complainant and the applicant were not listening to what she was saying. She disagreed with the suggestion that there was no such conversation with S. The complainant repeated that she had a conversation with the applicant. She agreed with the suggestion from the applicant's counsel that the applicant was not in the bed all of the time. The complainant repeated her evidence-in-chief that in the morning she felt a hand drawing shapes on her back and that the hand then moved to her bottom and then down to her thigh and remained motionless. The following cross-examination then occurred:

Q: No, just listen to the question. You don't know who that was, do you?

A: Yes. I was awake. I was like probably half asleep but more awake.

Q: As I said, it could very well have been T, couldn't it?

A: The only difference is that I could feel K's stomach on my back.

Q: But you don't know. Just a moment ago you said you didn't know it was T?

A: That's the only way I know that it was K because I could feel his stomach on my back.

Q: A pretty big stomach. Look, to be fair to everybody in this courtroom you can't be 100 per cent certain it was K who got back into bed and touched you, can you?

9 The complainant was also cross-examined as to why she had said nothing to S or her mother following this incident. In re-examination, the complainant testified that she had told her friend EH that it was the applicant who had touched her. The following re-examination then occurred:

COUNSEL: Now, on the Saturday night who was drawing shapes on your back?

HIS HONOUR: Are you sure it was K drawing shapes on your back on the Saturday night?

A: Yes, because we were having a conversation and he was speaking, Sam was speaking and I was speaking.

HIS HONOUR: I should say the jury have handed me a question which is exactly that.

COUNSEL: (To witness) So on the Saturday night you're sure it was K that was drawing shapes?

COUNSEL: On the Sunday morning when you say that somebody had got into bed ---?

COUNSEL: ---what was the first thing that that person did?

COUNSEL: How did that relate to the shapes that had been drawn the night before?

10 The complainant was not challenged as to her account of what occurred in the applicant's bed in the morning. The complainant's mother gave evidence that it was very unusual for the complainant to want to be picked up early and that when she saw her daughter she was very subdued.

11 The complainant's friend, EH, testified that on Monday 12 July 2004 the complainant told her at school what had happened that weekend at her friend S's house. The complainant told her that on the Friday night she was in bed with S and the applicant, and that the applicant had commenced drawing figures on her back and that he then moved his hand to her bottom and inner thigh. She subsequently said the complainant told her these events occurred on the Friday night and Saturday morning. In cross-examination she said the complainant told her that there had been drawing on her back on the Friday night and that on Saturday morning she had been touched on the legs and bottom. EH said that the complainant seemed to be very upset when she was telling her what happened. EH advised the complainant to go and see the school nurse but she didn't go for some time.

12 The prosecution called the applicant's daughter, S. She confirmed that the complainant had stayed at her father's home on the Friday and Saturday night and that the complainant had slept on the couch on Friday night. On the Saturday night, the complainant slept with her in her father's bed. When asked who else had slept in the bed she said she did not know. She said that when she got up in the morning there was no one else in bed. She did not notice if anything occurred during the night. She did not know where her father slept on the Saturday night. She denied that it was her idea that all three of them would sleep in the applicant's bed that night. She agreed that she had been reading a book when the complainant was with her in her father's bed, but denied that the complainant had been laughing or that she could have been tickled on the back. She said there were only two of them in the room. She did not see her dad get into bed that night.

13 A record of interview between investigating police and the applicant was tendered. During the course of the interview, the applicant stated that S generally slept in the bed with him when she stayed with him. His son would sleep on the couch. He said that when the complainant stayed at the house, both S and the complainant slept in his bed. The applicant said that he went to bed about 3.00am in the morning and the complainant and S were then asleep in his bed. He told the police that he slept on the very edge of the bed between two doonas. The applicant said that the complainant's account which was put to him was untrue. He denied it was inappropriate to have got into bed with the complainant and his daughter but he had to sleep somewhere. He said that he had slept with his back to the complainant and S and had gone to sleep. He denied that he had ever rubbed the complainant's back. When asked whether he thought he had put himself in a bit of a compromising position, he said: 'Yeah I mean I did that day. I mean I remember that. And I woke up the next day and thought, "Oh you know gees that was - maybe I shouldn't have done it, should have slept on the floor or something".'

14 The applicant did not give evidence and called no witnesses.

15 In the closing address the prosecution submitted that the jury might conclude that the complainant was being honest when she said that she was not 100 per cent sure that it was the applicant who had touched her bottom and touched her inner thigh. He submitted that the jury should have no reasonable doubt that it was the applicant that had touched her. The prosecution submitted that the suggestion made in cross-examination was that it was not the applicant who had indecently assaulted her but that it had not been suggested to the complainant that she was making up the fact that somebody had indecently assaulted her. The prosecution placed particular emphasis upon the complainant's evidence that the applicant had got back into bed in the morning and had started drawing the same pattern on her back again. As the complainant was certain it was the applicant drawing on her back the night before, it was submitted that the jury could reject the suggestion made in cross-examination that it could have been T who was drawing on the complainant's back the following morning. The prosecution referred to the process of drawing inferences and informed the jury that the trial judge would direct them that they could only draw an inference against the accused if it was the only reasonable inference open. The prosecution submitted that in the light of the complainant's evidence as to what occurred in the evening and then the following morning, the jury should be satisfied beyond reasonable doubt that it was the applicant who had indecently touched the complainant.

16 Counsel for the applicant in closing address submitted that there were enormous contradictions in the evidence which would prevent the jury from being satisfied beyond reasonable doubt that it was the applicant who had assaulted the complainant and that suspicion was not enough. He reminded the jury that the applicant had said in his record of interview that when he had slept on the bed he had slept on top of it between two doonas. He emphasised the complainant's evidence that she could not be 100 per cent sure that it was the applicant who had touched her. Defence counsel also referred to the drawing of inferences and submitted that as T was in the house there were two competing inferences as to who had got into the applicant's bed and touched the complainant. Counsel drew attention to the inconsistencies between the complainant's evidence and the recent complaint made to her friend EH. He emphasised the conflict between the complainant and S who had denied that there was any laughing or conversation with the applicant in bed that night and who had testified that she did not see her father in bed at all that night. Counsel relied upon the account given by the applicant in his record of interview. He submitted that as the complainant did not allege that the applicant had previously acted in an improper way towards her, the jury might very well think that it was not the applicant who had done these things. He submitted that the applicant must be given the benefit of a doubt that flows from the evidence.

17 Immediately after the addresses concluded, the trial judge charged the jury. His Honour directed the jury about the criminal standard of proof. No complaint is made about that direction. The trial judge gave the jury the usual direction in relation to the process of drawing inferences. The jury were instructed that their process of reasoning must be consistent with the rule that the prosecution carried the onus of proving the guilt of the applicant beyond reasonable doubt. His Honour then gave the jury the following direction:

Before you can draw any inference in a criminal trial against the accused man, which the Crown invites you to do, you must be satisfied of two things. Firstly, you must be satisfied beyond reasonable doubt that the facts you are relying on are established. Secondly, you must be satisfied beyond reasonable doubt that the conclusion you draw from those facts is the only reasonable conclusion that can be drawn.

18 Later in the charge, which was a short one, the trial judge repeated the above direction in its entirety and added that the jury must not draw the adverse inference against the applicant unless it was the only reasonable inference available. The trial judge directed the jury that the prosecution must prove that it was the applicant who committed the acts alleged. His Honour identified the primary issue in the trial as whether the applicant had committed the act alleged. His Honour repeated on a number of occasions during the charge that the prosecution would not have proved its case if the jury could not be satisfied beyond a reasonable doubt that the applicant had committed the act alleged. That issue was again highlighted when his Honour summarised the closing arguments of both counsel. No complaint is made about any aspect of his Honour's charge.

Failure to give the customary circumstantial evidence directions

19 Under cover of ground 2, complaint is made that the learned judge erred in failing to give directions on circumstantial evidence and a direction that the jury could not convict unless they were able to exclude any alternative hypothesis consistent with innocence. Although no complaint was made at trial by experienced counsel who appeared on behalf of the applicant, it is now said that as the prosecution case rested in part upon circumstantial evidence, the trial judge should have given these directions.

20 The customary direction in cases where the prosecution case rests substantially upon circumstantial evidence was considered in R v Rajakaruna [No 2].[2] Many of the authorities there discussed concerned circumstantial evidence tendered in proof of the identity of the offender. The customary direction to the jury is that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances and is sometimes also expressed as an obligation by the prosecution to exclude every hypothesis consistent with innocence. As circumstantial evidence is evidence of facts from which the jury may infer the existence of facts in issue,[3] a form of the customary direction is often to be found within directions given concerning the drawing of inferences in cases where inferential reasoning forms an important part of any process of reasoning towards guilt. But there is no rule of law nor is there an invariable rule of practice that requires that such a direction must be given in a case in which the prosecution relies upon circumstantial evidence.[4] That is so because the customary direction is an amplification of the rule that the prosecution must prove its case beyond reasonable doubt.

21 The primary question of fact in the trial was whether the jury could infer from the complainant's evidence that the offender was the applicant. The cross-examination of the complainant, the closing addresses of both parties and the judge's charge all placed particular emphasis upon that issue. It is evident from the jury question raised toward the end of the complainant's evidence that the jury was alive to the fact that the identification of the applicant as the offender depended upon inferential reasoning.[5]

22 The trial judge correctly instructed the jury as to the relevant test for the drawing of an inference in a criminal trial as the prosecution was relying upon an inference to establish an element of the crime charged.[6] The judge's charge conveyed to the jury in unmistakable terms, that the prosecution would not have established the guilt of the applicant beyond reasonable doubt unless the only reasonable inference to be drawn from the facts which they found was that it was the applicant who had indecently assaulted the complainant. These were appropriate and sufficient directions. The suggestion that his Honour was required to give the jury some further direction as to circumstantial evidence cannot be sustained.

23 Ground 1 is concerned with a response given by the trial judge to a jury question. Some time after the jury had commenced its deliberations the Court was reconvened to deal with a jury question. The question was '[d]oes the verdict boil down to who we believe?' The jury also requested that they be reminded of S's evidence as to what had occurred on the Saturday night.

24 After reminding the jury of S's evidence the learned trial judge answered the jury question as follows:

"Now does the verdict boil down to who we believe?" The answer to that strictly speaking of course is no. Remember I told you the Crown have the onus of proof in this case. Your verdict boils down whether or not the Crown have satisfied you beyond reasonable doubt of the accused man's guilt. And if it has satisfied you beyond reasonable doubt that the accused man is guilty you find him guilty. If, at the end of your deliberations, you feel I'm not satisfied beyond reasonable doubt that he's guilty your verdict is not guilty.

So to put in terms of "does it boil down to who we believe" probably misstates the onus of proof. You've got to remember the Crown have the onus of proof and that means proof beyond reasonable doubt. In this case that means do you accept the evidence of [the complainant] beyond reasonable doubt? If you accept her evidence beyond reasonable doubt it would be open for you to convict the accused man. If you rejected her evidence or you weren't satisfied beyond reasonable doubt that she was both truthful and accurate you would of course would [sic] acquit the accused man.

So remembering that strictly the answer is no but I can understand why you ask it in that [sic] terms. [S], the sister, says it didn't happen. The Crown frankly put to you well you shouldn't believe [S], she's the - not the sister, the daughter, she's the accused man's daughter the Crown say and so you wouldn't believe it.

Mr Sarah says well why do that? Why not - how could you possibly be satisfied beyond reasonable doubt in the face of the conflicts in the evidence and the differences that exist? You couldn't be satisfied. So that's really the way it's your task.

25 Counsel for the applicant submitted that by not answering the jury's question emphatically and unequivocally in the negative, his Honour fell into error. It was further submitted that his Honour should have given a direction of the type discussed by Brennan J in Liberato v The Queen ('Liberato').[7]

26 What has become known as a Liberato direction is not required as a matter of law.[8] The dissenting judgments of Brennan and Deane JJ in Liberato deal with the need for a suitable direction when a jury which is faced with a conflict in the evidence of prosecution and defence witnesses has been expressly invited by counsel or the trial judge to consider which is to be believed. The direction in Liberato had

26 invited the jury to make a choice between prosecution and defence evidence - a matter which Deane J described as 'sometimes unavoidable and commonly unobjectionable.'[9] But the invitation in Liberato followed upon a serious misdirection to the jury that they should give the accused the benefit of any doubt where 'a belief in the accused[10] was something about which the jury was satisfied'. Thus the so called 'Liberato direction' has been said to be an appropriate one in many cases 'where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence on which the accused relies can give rise to a reasonable doubt as to his guilt only if they believe that evidence to be true.'[11] Both dissenting judgments in Liberato emphasised that the answer to such a question must be accompanied by clear and unequivocal directions about the criminal onus and standard of proof so that there is no risk that the jury will treat the making of a 'choice' between the witnesses as the real question[12] or as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.[13] The judgments were not intended to lay down a particular form of direction in relation to the onus and standard of proof but to ensure that the clarity and effectiveness of directions of law on the onus and standard of proof are not compromised by any directions concerning the issue of choice between witnesses who have given conflicting evidence.[14]

27 A jury must be left in no doubt that where there is a conflict between prosecution witnesses and the accused, the question is whether the prosecution proved its case beyond reasonable doubt and not whose evidence is to be

27 preferred.[15] Hence to determine whether the impugned response to the jury question constituted a misdirection, it is necessary to consider it within the context of the charge as a whole. It is also relevant to take into account that trial counsel who was experienced and competent took no objection to his Honour's answer to the jury question or to any other aspect of the charge.

28 There was no material error in the instruction given by the trial judge in response to the jury's question. This is not a case where complaint is made that the judge 'overlaid' earlier directions on the burden of proof in discussing the question of choice between conflicting witnesses. On the contrary, the trial judge took the opportunity of re-emphasising the onus and standard of proof in clear and unequivocal terms.[16] The jury were instructed that they could not convict the accused unless they were satisfied beyond reasonable doubt as to the complainant's truthfulness. They were further reminded that it was the defence case, that in light of the conflicting evidence, the jury could not be satisfied to the requisite degree.

29 It was further submitted that his Honour in response to the jury question, failed to specifically direct the jury that unless they were able to exclude beyond reasonable doubt the accounts of S that the applicant could not have tickled the complainant on the back and the applicant's denials in his record of interview that he had assaulted the complainant, the applicant could not be convicted. Such a direction was unnecessary.

30 The effect of the charge left the jury with an unqualified understanding that they could not convict unless persuaded of guilt beyond reasonable doubt upon the evidence which they did accept. As is frequently done, the jury was instructed that they must be satisfied beyond reasonable doubt about the truth and accuracy of the evidence of the witness upon whom the prosecution case rested.[17] It was therefore plain to the jury that they would have to be satisfied beyond reasonable doubt as to the truthfulness and accuracy of the complainant's account that the applicant had got into his bed with the complainant and had drawn shapes on her back and tickled her that evening and also as to her account of the indecent assault that occurred in the applicant's bed the following morning.

Excluding rational inferences consistent with innocence

31 The answer given to the jury was also said to be erroneous because the trial judge told the jury that if they accepted the complainant's evidence beyond reasonable doubt, the prosecution would have discharged its burden of proof in relation to the charge. Counsel submitted that even if the jury accepted the complainant's evidence, it was still necessary for the jury to determine whether it could be inferred from her evidence that it was the applicant who had indecently assaulted her. Thus it was submitted that the jury should have been instructed that even if they accepted the complainant's evidence, they could not convict the applicant unless they could exclude as a reasonable hypothesis that it was someone other than the applicant who had indecently assaulted her.

32 The facts to which the complainant testified were that the applicant had got into bed on Saturday night and had drawn shapes on her back and tickled her. The following morning a person whom the complainant said she 'knew' was the applicant, because he had a fat stomach, got into bed next to her and drew shapes on her back in the same way as he had the previous night. Acceptance beyond reasonable doubt of these facts as truthful and accurate established the basis from which the inference of guilt could be drawn. As senior counsel for the respondent submitted, the only rational inference to be drawn from those established facts was that it was the applicant. The oft cited passage from the judgment of Dixon CJ in Martin v Osborne is apposite:

according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.[18]

33 The trial judge had already given unimpeachable directions concerning the onus and standard of proof and directions concerning the drawing of inferences. It was not necessary for his Honour to give any further direction concerning circumstantial evidence. The judge's response to the specific question called for the jury to be briefly reminded as to the onus and standard of proof to emphasise that the issue of who they believe did not conclude the issues which the prosecution bore the onus of proving. The trial judge gave an appropriate direction in saying that it was 'open to the jury to convict' if they were satisfied as to the complainant's evidence. While it would have been more accurate and comprehensive to have reminded the jury that proof of the applicant's guilt depended upon the conclusion that the only rational inference to be drawn from the complainant's evidence was that it was the applicant, that had been made unmistakeably clear in the trial judge's charge and in the manner in which the trial had been conducted. The adequacy of his Honour's answer must be considered in that light. The jury would not have understood that their choice of who they believe concluded the issues which they were required to determine. It was abundantly clear to them that it was for them to determine by inferential reasoning whether it was the applicant who had got back into his bed with the complainant in the morning at the time of the assault and that proof of that issue rested upon them being satisfied beyond reasonable doubt as to the complainant's evidence. The trial judge was right to view satisfaction beyond reasonable doubt of the complainant's evidence as leading inexorably to proof beyond reasonable doubt of the applicant's guilt. The trial judge did not need to

33 further remind the jury of the process of inferential reasoning that was necessary to lead to that conclusion.

Whether verdict unreasonable or contrary to the evidence

34 Under cover of ground 3, it was submitted that the verdict of guilty was unreasonable or could not be supported having regard to the evidence. A miscarriage of justice is the foundation of the jurisdiction to quash the conviction.[19] It was contended that it was not open to a reasonable jury properly instructed to exclude the possibility that the applicant did not commit the offence. In support of this contention, counsel for the applicant relied upon: answers of the complainant in cross-examination that she could not be 100 per cent certain that it was the applicant who assaulted her and that it could have been T; the conflict between the evidence of the complainant and S; the differences between the complainant's account and the evidence of recent complaint given by EH; the fact that there was no corroboration of the complainant's evidence of a sexual assault; and the fact that the complainant had stayed at the applicant's house on a number of prior occasions and nothing untoward had previously occurred.

35 In assessing whether a guilty verdict was unreasonable or could not be supported by the evidence, the appeal court must make its own assessment of the evidence after making allowance for the limitations of not having seen the witnesses to determine whether in its opinion the accused was proved beyond reasonable doubt to have been guilty of the offence on which the jury convicted him.[20] As Eames JA explained in R v CHS the court must:

determine whether in its opinion the accused was proved beyond reasonable doubt to have been guilty of the offence on which the jury convicted him. It is an objective task, to assess whether on the whole of the evidence on the count the court is satisfied that no substantial miscarriage of justice has actually occurred.[21]

36 In order that the appeal should succeed on this ground the applicant must demonstrate that no reasonable jury could properly have returned its verdict upon the evidence given.[22] I have examined the state of the evidence to determine whether it was such as to preclude the jury acting reasonably from being satisfied of guilt to the requisite standard.[23] In my view there is no aspect of the evidence which obliged the jury to come to a different conclusion or which engenders a reasonable doubt in my mind. The evidence was plainly capable of supporting a conviction for the offence. The complainant's evidence, fairly regarded, entitled the jury, acting reasonably to return a verdict of guilty.

37 If, contrary to my view, that part of the trial judge's response to the jury question discussed in paragraphs [31]-[33] constituted an irregularity amounting to a miscarriage of justice within the meaning of s 568(1) of the Crimes Act 1958, I consider that this is an appropriate case in which to apply the proviso.[24]

38 Sometimes it is possible for an appellate court to be satisfied that it can apply the proviso even though it has not seen or heard the witnesses.[25] The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This may be so where the prosecution relies principally upon circumstantial evidence.[26] The court may be satisfied that the jury, if properly instructed, could not but have excluded any hypothesis consistent with innocence.[27] Thus, there may exist evidence that this court can act upon that points ineluctably to the offender's guilt of the offence charged.

39 As was said in Weiss v The Queen,[28] the jury's verdict is one of the matters to be taken into account in determining whether or not the applicant was proved guilty of the offence beyond reasonable doubt. One would give little weight to the verdict if it may have been the result of impermissible reasoning consequential upon the irregularity the subject of complaint.[29] But the proviso may be applied if the irregularity 'could not reasonably be supposed to have influenced the result'.[30] If there are no credit issues or other sufficient 'natural limitations' which are relevant in assessing the consequences of the irregularity, the court will not be precluded from assessing the proceeding wholly or substantially on the record.[31]

40 We are not here concerned with an alleged error which should be characterised as 'fundamental' or as an error going 'to the root of the proceedings.'[32] The impugned instruction did not relate to or impinge upon the accuracy or reliability of the complainant or any other relevant witness.[33] The irregularity complained of was not by its nature one which deprived this court of the capacity to assess the strength of the case against the applicant and conclude that there has been no substantial miscarriage.[34]

41 The impugned answer given to the jury that the prosecution would have discharged its onus of proof if the jury accepted the evidence of the complainant would not have produced impermissible reasoning as to the complainant's evidence. The asserted error related to the failure to give the jury an instruction or reminder that there was a further process of reasoning that would have to be employed in the event that the complainant's evidence was accepted beyond reasonable doubt. As the guilty verdict rested upon the jury's acceptance of the complainant's evidence beyond reasonable doubt, this court is able to make its own assessment as to whether the prosecution excluded all rational inferences consistent with innocence.

42 The jury having found the complainant's evidence to be truthful and accurate, and there being no persuasive factor to doubt that conclusion, the question is whether on that evidence the inference should be drawn to the exclusion of all other reasonable inferences that the applicant was the offender.[35] In my opinion that is the only reasonable inference that is open. The evidence of the complainant, considered in conjunction with the content of the applicant's record of interview did not allow any rational hypothesis to the contrary. It follows that if the jury had been further directed as the applicant contends, there was no realistic chance of an acquittal. The error, if there be one, had no significance for the verdict.[36] It did not deprive the applicant of a chance of acquittal by the jury. I am satisfied, on the whole of the evidence, that the accused was proved beyond reasonable doubt to be guilty of the offence on which he was convicted.[37]

43 For the reasons given by Redlich JA, I would refuse the application for leave to appeal against conviction.

[1] The complainant so testified without challenge.

[2] [2006] VSCA 277; (2006) 15 VR 592, 596-8 (Redlich JA).

[3] Butterworths, Cross on Evidence, Australia Edition, vol 1 (at 103) [1100].

[4] R v Rajakaruna [No 2] [2006] VSCA 277; (2006) 15 VR 592, 597 (Redlich JA).

[6] Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 502 (Mason CJ, Dawson and Toohey JJ); 509-10 (Brennan and Gaudron JJ).

[7] [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J).

[8] Salmon v The Queen [2001] WASCA 270 (Unreported, Malcolm CJ, Kennedy and McKechnie JJ, 30 August 2001) [99]-[103] (McKechnie J); R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300, 328-9 (Heydon JA, Sully and Levine JJA); R v Burt [2003] NSWCCA 248; (2003) 140 A Crim R 555, 564 (Wood CJ at CL); R v Niass [2005] NSWCCA 120 (Unreported, Hunt AJA, Grove and Hall JJ, 4 April 2005); R v Yusuf [No 2] [2006] VSCA 117 (Unreported, Chernov, Vincent and Redlich JJA, 17 May 2006) [11] (Chernov JA).

[9] [1985] HCA 66; (1985) 159 CLR 507, 519.

[11] R v Niass [2005] NSWCCA 120, (Unreported, Hunt AJA, Grove and Hall JJ, 4 April 2005) [28] (Hunt AJA).

[12] [1985] HCA 66; (1985) 159 CLR 507, 519 (Deane J).

[14] Miles v The Queen [2000] WASCA 364 (Unreported, Wallwork, Murray and Miller JJ, 22 November 2000) [14] (Murray J).

[15] R v Rodriguez [1998] 2 VR 167; R v Pearson (Unreported, Supreme Court of Victoria, Phillips CJ, Southwell and Vincent JJ, 5 June 1995) 14 (Phillips CJ, Southwell and Vincent JJ); R v Cascone (Unreported, Supreme Court of Victoria, Phillips CJ, Charles and Buchanan JJA, 4 June 1998).

[16] R v Smith [1964] VicRp 31; [1964] VR 217, 224-5 (O'Bryan, Dean and Sholl JJ); R v Pearson (Unreported, Supreme Court of Victoria, Phillips CJ, Southwell and Vincent JJ, 5 June 1995) 16 (Phillips CJ, Southwell and Vincent JJ).

[17] R v Yusuf [No 2] [2006] VSCA 117 (Unreported, Chernov, Vincent and Redlich JJA, 17 May 2006) [9]-[11] (Chernov JA); Leyshon v Western Australia [2006] WASCA 132 (Unreported, Martin CJ, Steytler P and Wheeler JA, 30 June 2006) [12]-[13] (Steytler P); R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366, 373-4 (Nettle JA); R v Norman [2005] SASC 89 (Unreported, Doyle CJ, Duggan and Vanstone JJ, 15 March 2005).

[18] [1936] HCA 23; (1936) 55 CLR 367, 375.

[19] R v Gallagher [1998] 2 VR 671, 674 (Brooking JA); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 622 (McHugh, Gummow and Kirby JJ).

[20] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[21] [2006] VSCA 19; (2006) 159 A Crim R 560, 587.

[22] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 (Hayne J with whom Gleeson CJ and Heydon J agreed).

[23] R v Klamo [2008] VSCA 75 (Unreported, Maxwell P, Vincent and Neave JJA, 9 May 2008) [3] (Maxwell P); R v Vjestica [2008] VSCA 47, [61]-[64] (Maxwell P with whom Buchanan JA and Whelan AJA agreed).

[24] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 524-5 (Barwick, CJ); The Queen v Storey [1978] HCA 39; (1978) 140 CLR 364, 376 (Barwick, CJ); Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 630 (McHugh J); R v AJS [2005] VSCA 288; (2005) 12 VR 563, 569-70 (Maxwell P, Nettle JA and Redlich AJA).

[25] See, eg, Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 604 (Gleeson CJ), 633 (McHugh J), 655 (Kirby J), 669 (Callinan J); Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, 169 (Gleeson CJ), 189 (Kirby J), 200-1 (Callinan and Heydon JJ); Washer v Western Australia [2007] HCA 48; (2007) 239 ALR 610, 638 (Kirby J).

[26] R v Ciantar; DPP v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 59-60 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

[27] R v Lambourn [2007] VSCA 187 (Unreported, Nettle and Ashley JJA and Kaye AJA, 7 September 2007) [31] (Nettle JA), [45] (Kaye AJA).

[28] [2005] HCA 81; (2005) 224 CLR 300.

[29] R v Ciantar; DPP v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 60 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

[30] Stokes v The Queen [1960] HCA 95; (1960) 105 CLR 279, 284-5 (Dixon CJ, Fullagar and Kitto JJ) (emphasis added).

[31] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); R v Weiss [2004] VSCA 73; (2004) 8 VR 388, 400 (Callaway JA); R v Lambourn [2007] VSCA 187 (Unreported, Nettle and Ashley JJA and Kaye AJA, 7 September 2007) [31] (Nettle JA).

[32] Cf Gassy v The Queen [2008] HCA 18 (Unreported, Gummow, Kirby, Hayne, Crennan and Kiefel JJ, 14 May 2008) [106]-[107] (Kirby J); AK v Western Australia [2008] HCA 8; (2008) 243 ALR 409, 415, [23] (Gleeson CJ and Kiefel J), [59] (Gummow and Hayne JJ), [87] (Heydon J); R v AJS [2005] VSCA 288; (2005) 12 VR 563, 569-71 (Maxwell P, Nettle JA and Redlich AJA).

[33] Gassy v The Queen [2008] HCA 18 (Unreported, Gummow, Kirby, Hayne, Crennan and Kiefel JJ, 14 May 2008) [37] (Gummow and Hayne JJ).

[34] Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, 163 (Gleeson CJ); AK v Western Australia [2008] HCA 8; (2008) 243 ALR 409, [23] (Gleeson CJ, Kiefel J).

[35] Gassy v The Queen [2008] HCA 18 (Unreported, Gummow, Kirby, Hayne, Crennan and Kiefel JJ, 14 May 2008) [37] (Gummow and Hayne JJ).

[36] Darkan v The Queen; Deemal-Hall v The Queen; McIvor v The Queen [2006] HCA 34; (2006) 227 CLR 373, 405 (Gleeson CJ, Gummow, Heydon and Crennan JJ); Bounds v R [2006] HCA 39; (2006) 228 ALR 190.

[37] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 317 (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); R v Wei Tang (2007) 16 VR 454, 496 (Eames JA).