R v M C; DPP v M C [2009] VSCA 122

2 I have had the advantage of reading in draft the reasons for judgment of Coghlan AJA. I agree with the disposition proposed by his Honour for the reasons he gives.

3 On 15 November 2007 a jury in the County Court convicted the applicant of one count of causing the complainant to take 'a drug, matter or thing' with the intention of rendering her incapable of resistance and thereby enabling himself to take part in an act of sexual penetration with her and one count of rape of the complainant by inserting his penis into her anus.

4 On 13 August 2007, the applicant had pleaded guilty to a count of theft which was originally Count 3 on a trial presentment on which the two matters which led to the above conviction were Counts 1 and 2. The theft count related to the theft of a bottle of vodka and a bottle of tequila from the complainant on the day of the events in the above counts some time after they had occurred.

5 On 12 June 2008, the applicant pleaded guilty to one count of theft which arose from the theft of a patient's medication at his place of employment where he worked as a nurse.

6 The second two matters are relevant only because the applicant was also sentenced on those counts.

7 The applicant was ultimately sentenced in July 2008 by his Honour Judge Allen. It had become necessary for him or some other County Court judge to sentence the applicant because of the sudden and untimely death of the trial judge, his Honour Judge Higgins.

8 On 17 July 2009, the applicant was sentenced to be imprisoned for three years on Count 1 and five years on Count 2, and he was ordered to serve one year of the sentence on Count 1 cumulatively upon the sentence on Count 2. That was a total effective sentence of six years. He was sentenced to be imprisoned for one month on each of the theft presentments. Those sentences were to be served concurrently.

9 His Honour fixed a non-parole period of three years and six months before the applicant would be eligible for release on parole. 248 days were reckoned as having been already served under that sentence. The Director of Public Prosecutions has appealed against the sentence on Count 2, the total effective sentence and the non-parole period on the basis that they were manifestly inadequate.

10 The applicant now seeks leave to appeal against the convictions on the counts of causing the complainant to take a drug, matter or thing with the intention of rendering her incapable and thereby enabling himself to take part in an act of sexual penetration and of anal rape.

Ground 1: The learned trial Judge erred in that he failed to adequately charge the jury in relation to the credit of the complainant.

Ground 2: The learned trial Judge erred in that he failed to adequately identify the issues in the trial and to relate the issues to the evidence in the case.

(a) the witness GH was unfairly dealt with by the Crown at trial; and/or

(b) the 'concoction' of a lie in relation to passionate kissing was not adequately the subject of the learned trial Judge's charge; and/or

(c) the learned trial Judge inappropriately made adverse comments in relation to GH's evidence; and/or

(i) elicited opinions from witnesses which were unfairly obtained and/or inadmissible; and/or

(ii) without a proper foundation, mounted an argument in relation to the applicant's mental state after an intake of alcohol.

Ground 4: The verdicts were unsafe and unsatisfactory in that:

(a) it was not open to the jury to convict on the evidence;

(b) notwithstanding evidence upon which it was open to convict, the jury ought to have acquitted;

(c) a combination of the matters referred to in grounds 1 to 3 hereof resulted in an unfair trial.

12 In argument Senior Counsel who appeared for the applicant argued each ground but added a series of particulars to Grounds 1 and 2 in his written outline. Particulars had already been set out in relation to Grounds 3 and 4.

13 It was in elaboration of Ground 2 that the most serious issue to be addressed on this appeal arose. It is to be noted that none of the grounds as originally stated deal with the issue of lies or the question of whether a direction in accordance with Edwards v R[1] should have been given.

14 Under Ground 2, the following written submissions were made by Senior Counsel:

1. The Crown's contention that it could be inferred that 'passionate kissing' was a concoction (T946-948.974) should have attracted in the charge:

(a) the identification of facts said to support such an inference;

(b) a direction in relation to the 'lie' in the record of interview - an Edwards direction or some other direction;

R v Cuenco [2007] VSCA 41; (2007) 16 VR 118

R v McCullagh (No. 2) [2005] VSCA 109 at [63]

Charge T1075, 1080, 1100, 1105, 1117

1. The 'lies' identified by the Crown in the record of interview (T972-974) should have been identified in the charge, and possible explanations also identified. Instead His Honour only dealt with lies when summarizing counsels' addresses - prosecutor at T1108-1109, defence at T1123.

15 Although paragraph 8 does not complain about the absence of an Edwards direction in terms, the identification of the particular lies can only relate to an appropriate direction being given about the lies once identified.

16 At about 8.30pm on the night of 15 February 2006, the complainant went to a bar in High Street, Thornbury called the Bender Bar. There she met some friends, including her former boyfriend, AB, and CD and EF. The group had gathered at the bar to see another mutual friend play in a band. At the Bender Bar, the complainant drank three or four pots of full strength beer. She spent sometime over two hours at that bar. On leaving the bar, she went with CD and EF to the Northcote Social Club, arriving there about 10.00pm. She drank another two or three pots at the Club, where she remained until about midnight.

17 At some stage at the Club, the applicant started a conversation with the complainant. They had not previously met. The applicant was with two friends, later identified as his cousins. The applicant's group and the complainant's group were near one another in the bar area. While at those premises, there was some discussion with the applicant's group about drugs in which the complainant said she had tried ecstasy.

18 The complainant went with the applicant and his cousins to Brunswick Street, Fitzroy. The applicant and one of his cousins had said that they would look after the complainant. The group went by taxi to a bar called Bar Open for a short time. The complainant had one drink of what was probably vodka at that bar. After leaving Bar Open, the group moved on to a bar called First Floor. At First Floor, the complainant consumed a vodka and Red Bull. At some stage she went off for a dance on her own. At that time, the complainant was starting to feel the effects of the alcohol she had consumed.

19 The group of men had also been drinking at the various places visited.

20 The group did spend a long time at First Floor and then caught a taxi into the city. They went to a bar called Bar 20 in King Street. At that time, the complainant heard some conversation about getting drugs. The complainant thought that the gist of the conversation was that the applicant knew someone at a particular club from whom he could obtain drugs. At Bar 20, the complainant had another vodka drink and the applicant went and had a conversation with a woman who appeared to the complainant to be a member of staff and whom the applicant appeared to know.

21 The group remained at that bar for about half an hour and then moved on to another bar called Barcode in Crown Casino complex. When the group went into Barcode, the complainant saw and spoke to CD at the bar. The complainant had a drink at Barcode which she left on the bar when she went to have a dance. The applicant and his cousins were near the drink. The complainant was away from the drink for about five minutes when she returned to the bar and she finished her drink. About five to ten minutes after finishing the drink, she began to feel really tired and decided to go home. It was by then about 6.30am. The applicant offered to share a taxi with the complainant and they left Barcode.

22 Their departure from Barcode was videotaped. That video tape was shown to the complainant in evidence and was available to the jury.

23 The complainant had said to the jury that at about that time she was having difficulty walking and standing up. The complainant did regard the onset of tiredness on this morning as being unlike the effects of alcohol which she had experienced on earlier occasions.

24 The complainant has little memory of going to and getting in the taxi, but remembers being supported by the applicant when going down the escalators to get the taxi.

25 The complainant said that she had a feeling in the taxi which she had not experienced before. The complainant said she had consumed more alcohol on other occasions and had not experienced those feelings.

26 The complainant said she remembered getting out of the taxi but not any of the associated details. She said she has a recollection of entering her flat with the applicant standing behind her. She said she did not invite him into the flat, but could not remember any conversation. She said that she went straight into her bedroom and shut the door. She said that she put on her pyjamas and went to bed.

27 I will set out in full the complainant's description of what happened from that time onward:

Well then, tell us in your own words as slowly as you can what you recall occurring from that point onwards when you have gone to bed?---I woke up and I had no clothes on and I was alone in my room and I didn't know what had happened and then I just started remembering just visions and things.

All right, well let's go to the end and work backwards. You say that you at some point woke up and realised you didn't have any clothes on. Are you able to say approximately when that was that you woke up and you realised that?---I think it was midday.

You mean approximately five and a half hours after you left the venue in the taxi?---Yes.

You say something about remembering some other things when you woke up. Perhaps if you could go back to the beginning and, using those memories, tell us what it was you remembered happening from the time you went to bed until the time that you woke up at about midday. Firstly, was [the applicant] in the room with you when you first went to bed?---No.

What was your next memory?---I remember seeing him standing at them end of my bed with a towel around and wet hair, but I think before that I remember him standing next to my bed saying, 'I'm having a shower,' and I just looked at him and thought why is he having a shower. I thought, how rude - he didn't even ask if he could have a shower. I think before that I just remember not being able to move and - like I was there but I wasn't there.

Well, let's ask you some questions about that. What do you mean by, 'not being able move - being there but not being there'?---I just felt like there was just pressure on me, but I would just other than that I couldn't move but I felt like I was being moved or I can remember seeing my wall really close to my head. I don't, I don't - - -

Yes, all right. Let's take those things one by one. Firstly, you mentioned a sensation of feeling pressure. Whereabouts were you feeling pressure?---Just all over my body and - I think it was, like, around my bum.

Yes, yes. When you say you think it was around your bum, do you mean by that that you can't remember, or at the time you weren't sure where you were feeling the pressure?---I couldn't tell where - I couldn't feel anything properly, so I couldn't - I don't know.

All right, what do you mean by you couldn't move?---I just felt like I wasn't in my body, it just it wasn't doing anything.

As you say that you're wiggling your arms. The microphones of course don't pick up the bodily movements. What do you by - and I'm sorry to have to go back and ask you minute detail - but what do you mean by a phrase such as, 'My body wasn't doing anything'?---Well, I had no control over my movement and I think I was being moved but I wasn't doing it.

Do you recall trying to move your body in any way?---No.

Were you able to move your body at will?---No.

You said something about seeing the head of your bed or something. What do you mean by that?---I just remember seeing the wall like really close to my face.

Let's talk about the geography of your room and what that means. Firstly, what wall are you talking about?---At the head of my bed.

You said you saw the head of your bed or what you called the wall - you explain that's the head of your bed?---Yes.

How close were you to that?---It was direct - right in front of my face.

Were you on your side, on your back, on your stomach?---I think I was on my stomach.

When you were aware of being on your stomach and seeing the head of your bed really close, were you aware of any other sensation at that time?---Just really feeling like I was being squashed; just couldn't move. Just pain but I didn't know where or - - -

When you say, 'Being squashed, couldn't move, feeling pain,' are you able to give us more detail about those descriptions?---It was just a really sharp pain.

Whereabouts?---In my bum and I just couldn't move but I didn't - I don't know.

When you say you couldn't move, at that point do you remember trying to move?---No.

What do you mean then by you couldn't move?---Just my body wasn't doing - I don't know.

Just let's take it one at a time. You were about to say, 'My body wasn't doing' what?---Like it wasn't moving.

Was your body - if it wasn't moving I suppose there could a few things. It could be as stiff as a board, it could be as a limp as a spinach leaf that's been cooked, a number of things. What do you mean by that?---Yes, I felt limp and I just - I don't know how to explain it.

That's fine. Explain it in your own words as best you can. Now you say that that was a memory you have of your head being close to the bedhead?---Yes.

Do you remember how long that seemed to be going on?---No, it was just kind of a flash.

You said something about a feeling of being squashed. What did you mean by that?---Just that there was a weight on me.

Whereabouts was the weight?---Just all over me.

Did you see [the applicant] at all?---Not when I could see the wall. I think I remember being rolled over.

Was that being rolled over before or after you were aware of seeing your bedhead in the way you've described?---I'm not sure.

Could you describe the process of being rolled over and tell us what happened and what you saw?---It was just like my arm was grabbed and just my body was flopped over.

Whereabouts were you when you were rolled over?---Just in my bed.

What did you see when you were rolled over?---I saw the accused's upper body and just my bedroom wall and - - -

When you say you saw the accused's upper body, was he in the doorway across in the lounge room?---Just above me, on the bed I guess.

Above you on the bed. Is that what you're saying?---I think so.

Were you aware of hearing anything or noticing anything else?---No.

Are you able to tell us what happened when you were rolled over?---I'm not sure. I think then - then that's when I felt like a heavy feeling on me.

When you say that's when you think you felt a heavy feeling on you, what do you mean by that?---Just like someone is on top of me.

Are we talking about the same time frame as seeing [the applicant's] upper body?---Yes.

Are there any other memories you have been the time when you went to bed and when you woke up at about midday without your clothes on?---Just seeing him standing next to my bed saying he's having a shower and then seeing him with wet hair at the end of my bed in my towel.

Sorry, what were you saying about the towel?---Wearing a towel of mine.

The sensation that you've described of seeing your bedhead and being rolled over, are you able to say whether each one of these was a single memory, or whether that memory, for example, of seeing the bedhead was something that was repeated several times, or you don't know?---I don't know.

Similarly being rolled over and seeing [the applicant's] upper body, et cetera, are you able to say whether that's a single event that you recall or it happened several times or you don't know?---I don't know.

Are you able to say or do you have any idea, firstly, how long after it was you went to bed alone that the first of these events occurred?---No.

Have you got any idea or are you able to say at all how close the last of these events was to you waking up in your bed alone without clothes on at midday?---No.

By the last of the events, I mean, including [the applicant] by the end of your bed robed in your towel or saying he's going to have a shower. Are you able to pinpoint, even in approximate terms, how long that was before you woke up again?---No.

Those sensations of pressure on your body you've described and of seeing certain things, do you remember hearing anything?---No.

Do you remember feeling any other sensations?---Just really, really hot.

Yes?---Just really, really, really hot.

Perhaps to describe that to us, have you been in the position where you've had the flu or something and you've had a fever of some sort?---Yes.

Is that what you mean by feeling really hot or something different?---Just this hot sensation over all my body. I'm not sure.

If you don't know please say so, but do you mean the sensation of something hot on your body or the sensation of your body feeling hot?---My body feeling hot.

Was that something that you just remember on one occasion or was that something that you felt all the way through these sensations or something different?---I'm not sure.

Do you have any recollection of whether the feeling of your body being hot was a single event or being aware of that on several occasions or you don't know?---I just remember when I couldn't move in bed just being really, really hot.

Is there anything else that you either can remember or would like to tell us by way of observations or what occurred between going to bed alone, clothed, and waking up at midday naked?---When I woke up, I was looking for my pyjamas and I put them on, and I noticed there was blood on my sheet.[2]

28 When the complainant woke up, she said she had a severe pain in her anus and there was blood on the sheet. She said she stripped the bed and called her former boyfriend, AB, who came straight over to her house.

29 The complainant went to both the Alfred and Austin Hospitals and was spoken to by a CASA representative at the Austin Hospital who advised her to see her general practitioner.

30 The next day at about 3.00pm, she went to her general practitioner, Dr Gomez, who found that the complainant had a tear in her anus and some bruising to the arms. Both AB and the complainant were certain that she had not taken a painkiller after waking up.

31 Later that day, the complainant made a report to the police at Northcote Police Station. She was later examined by a forensic physician (Dr Morgan). At the police station, she found a card from GH, the applicant's cousin, in her wallet.

32 The complainant was cross-examined at length. She was asked a large number of questions about her responses to the applicant and shown videotape, as a result of which she did accept that she had been more 'friendly' with him than she had previously recollected. In particular, in answer to questions about whether or not she was passionately hugging and kissing the applicant at Barcode, she said that she did not remember.

33 If the question of the complainant's romantic responses to the applicant is put to one side, there is not much which arises out of cross-examination. The complainant was cross-examined regarding what painkillers she might have taken, those questions going to alternative explanations for the presence of morphine found in the complainant's system.

34 The following matters emerged from the scientific evidence. That the blood found on the sheet was the blood of the complainant. Semen was found on the sheet, including some in the area of the bloodstain and that semen, as a result of a positive DNA test submitted to by the applicant, was accepted as the applicant's.

35 Dr Gomez took a urine sample from the complainant on 17 February 2006. When tested, morphine was detected in the urine. That was said to be consistent with the ingestion of morphine or codeine.

36 GH gave evidence in the trial that he had seen the applicant and the complainant passionately kissing at Barcode and they had been dancing closely together at First Floor.

37 Drs Morgan and Gerostamoulos gave evidence about the effect of drugs and alcohol, and particularly whether the symptoms described by The complainant were consistent with the consumption of a drug or drugs. No evidence was called in the defence case.

38 The applicant had been interviewed by the police on 27 February 2007. His identity had been established through his cousin, GH. When interviewed, he described the events:

54: Okay. Are you able to tell me, from the very start - so the previous night - what you got up to?

Yes. Me and my - and my two cousins were at the Northcote Social Club, in Northcote, having some drinks. We met a girl who was with a group of guys. We all mucked around, talked, played pool - and played a game of pool with one of her friends. We got chatting. We talked to each other. She wanted to hang out with us for the night. We said we were moving on and going to the casino. She was happy to join us. I'll just keep - - -

55: Yep.

Yep. We - we had more drinks - we left there, went to the casino. We had quite a lot more alcohol at - don't know the name of the bar, but - the only bar that's left open at that time of night. In the ti - in that time, we drank more, we danced. I was developing a relationship with this girl. We were both hugging and kissing. She was also at - at some point, hitting my cousin - like, punching him, just as a muck around thing, and saying, 'Hit me, hit me', back to - to the cousin. If there's footage of that, that'll all be seen. My cousin said to me, 'Look, man, she's a little bit different', or whatever, just something, like, tripper, or something. I said, 'She's alright'. We continued to talk and play. About three or four more occasions, she, sort of, punched me and I just thought it was a bit odd. I said, 'Look, that's not' - you know, don't' - you know, she was saying, 'Hitting me back'. I said, 'That's not very nice'. We continued to kiss. We left my two cousins at the casino and I got a taxi back to her place, but I was fairly drunk at this point. I can't remember the taxi ride. I thought that I bought some alcohol on the way home so that we could have it back at her place. We went inside and crashed on the bed. I don't recall - I don't recall any sexual activity when we first went to sleep. I remember waking up and she was naked next to me on the bed. I remember touching her. She was, sort of, touching me back. At this point, I remember kissing her. I don't remember sexual intercourse, as such. I remember we played around. We were both tired. I got out of the bed, I went into and had a shower. On coming out of the shower, I saw two bottle alc- bottles of alcohol on the table, one of them being tequila, which is my favourite drink. So I thought that I had bought that. I to-, I went int-, I went in, closed her bedroom door, left the building. I knew that I had her number, I was gonna give her a call back later that day. I took the two bottles of alcohol. I walked down onto High Street. I walked - then I walked out to look for a taxi. Got a taxi all the way home, put the bottles of alcohol - I rang my cousins, I believe, later that night and said, 'Did we - did I buy alcohol?' They weren't - they weren't there with me, they didn't remember. That day, I went to call the girl that I'd spent the morning with, and my - my phone had been lost. I lost my phone that - that day in the taxi, so I didn't have any way of contacting her to see whether the alcohol was hers or not. And that was a Thursday, I think, and then, on the Friday, things just proceeded as normal. And I knew that she'd given her number - well, [GH] had given his number to her, so she was gon-, she would have called [GH] if she was keen on - keen on, like, you know, getting - starting a relationship or something like that.

89: Alright. Do you remember what - anything sexual happen between the two of you?

Once again, I - I remember - I remember her - she was completely naked next to me. And I remember I still had my pants on. I honestly can't remember anything like - anything full on happening at all. Maybe a kiss, maybe a talk. The night before, we had talked - we had talked about going surfing together and she was up for that, so that's why I did want to contact her the next - the next day, but I'd lost my phone. I don't remember anything more sexual than - than - than touching her, than cuddling with her. And then I had a shower and I was in the shower by myself.

90: Alright. You said that - just before, that you remember that you had your top off, but your pants were on.

Yes.

91: When you got up to have a shower, were your pants on or off?

I'm pretty sure they were on.

106: Yep?

I honestly - we were kissing at - at - we were kissing at the Crown Casino. I clearly remember kissing her.

107: Yep. When you say 'kissing her', what do you mean by 'kissing', pecking or?

Nah, pashing.

108: Yep.

Yep, I remember pashing her at the casino. I remember - like I said, I remember waking up and kissing her and touching her with my hand on her stomach, I can, clearly, remember that. There was no - there was no blood on the sheets and the two bottles of alcohol on the table, and that's all. It's definitely not in my nature to do that at all.

109: Can you explain why you can pretty much remember the events leading up to the allegations being made, you can remember the events after it, but everything in between's a - a blur? Why is that?

Well, just with the way alcohol works on your body, you get - get to a point where you can go into - I s'pose a phase of - of loss of memory. The - I - I don't re-, I remember leaving the casino. I don't remember the taxi ride home, otherwise I would have remembered buying the alcohol or not buying the alcohol. So I don't remember, say, 45 to an hour and 15 minutes prior to the allegation. And I don't remember the same amount after, you know. I was asleep on the bed, so that's probably why I can't remember, as well.

163: Okay. Can you explain how blood has been located on the sheets?

No, I can't explain that and I don't remember seeing it.

164: Okay. Don't remember seeing it at the time you've left. Blood has been left when, you know, [the complainant] woke up. Can you explain how that blood could have possibly got there?

I have no understanding or explanation - the only thing I do remember is that the door was left - the unit door was left open and the keys were in the lock and that the door was ajar about 20 centimetres.

165: Okay. Did you say goodbye to her?

I can't remember - I can't remember saying goodbye at all, no. I just remember, I think, closing her bedroom door 'cos she was still, sort of, naked I think, yeah.

166: Why did you have a shower?

Just, because I have a shower every time I wake up ... there was no particular reason that morning ... ...

167: I put it to you, you had a shower so you could get rid of any blood that may have been on you. what do you have to say about that?

Well, yeah - nah, I wouldn't have done that, 'cos I didn't see any blood, and the - well, the truth of the matter is I don't think I've ever had anal sex in my life.

168: Did you internally, or internally touch [the complainant] at all?

No, not that I can remember, nah, didn't go anywhere near it.

39 The prosecution submitted to the jury that the complainant was a witness of truth who should be believed and, if believed when her evidence was examined in conjunction with the scientific evidence, the jury would be satisfied beyond reasonable doubt that the appropriate verdict was guilty on each count.

40 In addition or in parallel with that argument, the prosecution developed two other arguments.

41 The first of those arguments was that the witness, GH, might have been involved in the spiking of the drink. Apart from opportunity, there was no evidence of that. (The whole question of how GH was dealt with as a witness is separately the subject of Ground 3). In addition to that, it was put that GH and the applicant had concocted the evidence of the passionate kissing at Barcode. It followed, so the argument ran, that what the applicant said in his record of interview was not to be believed. That argument was based upon the proposition that GH had been spoken to by the police before the applicant was interviewed and he might have discussed the matter with the applicant before the applicant was interviewed by the police. It presumably did not matter when it was GH made his statement to the police. The other matter put in this context was that in giving his evidence, GH had not, in chief, mentioned anything of the dancing at First Floor or the passionate kissing at Barcode.

42 It was true that GH did not give that evidence when lead in examination in chief by the prosecution, but he was not asked directly what he observed of any physical contact between the applicant and the complainant. In the argument, the prosecution was suggesting that the mention of 'kissing passionately' was 'aimed at creating an impression of consensual sexual activity'. It carries with it the necessary connotation that it is both false and concocted. It seems to me that, without the words being stated, that concoction was being put as a consciousness of guilt. It is a combination of post offence conduct and a lie.

43 It should be noted in passing that the complainant, who was probably regarded as a truthful and fair witness, had said of the passionate kissing at Barcode that she did not remember.

44 In this case, the positive aspects of the defence case were contained in the record of interview. In particular, the applicant said that his memory was very patchy after leaving Barcode.

45 The prosecutor, in his address, said of the record of interview:

But his record of interview is before you. That is evidence and therefore you are entitled to and ought to analyse it and decide whether you regard the account he gives in that interview as being truthful or, as I say to you, a pack of lies. I suggest to you that you should regard his account as being unimpressive, self-serving and a pack of lies and that you should reject his account.

In his interview he says a number of critical things such as - and I am paraphrasing, but you can have the interview played in the jury room so you can check the words that he uses. But I am suggesting to you he says, for example, three critical things that I say are relevant and significant: (1) he says in effect, "all the time I was in the bedroom, I had my pants on." That is what he says in the interview.

He says in the interview, although there is one other reference to "I don't remember any blood on the sheet", there is another point in the interview he actually positively asserts, "There was no blood on the sheet." Thirdly, "I touched her. I lay down beside her. I" - presumably - "had my pants on and I touched her, I cuddled her. There was no sex." Now, I am not saying those were precisely the words he used, but I am saying there are three propositions that he quite clearly puts in the interview. "All the time I was in the bedroom, I had my pants on. There was no blood on the sheet, there was touching, but no sex."

Now, I understand that what will be suggested to you - in fact, [counsel for the applicant] said words to this effect in his opening - clearly those things are wrong, in the sense that the evidence points to some form of sexual activity having occurred. The evidence points to there being blood on the sheet. The evidence points to - if you put those all together - he didn't have his pants on all the time he was in the bedroom. So clearly he's wrong.

Now, as I understand it, as was foreshadowed by [counsel for the applicant] earlier, you will be told, "They're not lies, they're just lapses of memory. They're lapses of memory because he had so much to drink that night that he just couldn't remember those things. He's not trying to tell lies: he just couldn't remember. They're honest lies."

Now, I say to you they're bare-faced absolute black lies and those lies have been revealed by the evidence, by the reality of cold hard evidence. They're not lapses of memory, they're not alcohol-induced lapses of memory - they're lies. Indeed, if [the applicant] was genuinely experiencing alcohol-affected memory, I suggest to you that he would acknowledge the memory problems across the board instead of selective memory of what are disputed matters according to [the complainant's] evidence, such as and including the term he uses - "pashing".

In other words, what I'm getting at is, if he genuinely had lapse of memory, then he would acknowledge that lapse of memory across the board instead of only remembering the things that are in his favour and not remembering things that go against him. The remembering things that go in his favour include what [the complainant] disputes and that only [GH] and [the applicant] assert - namely the "pashing" or the kissing.

46 The prosecutor then went on to an elaborate analysis of the evidence about the applicant's state of sobriety. Some of the analysis was either not based on the evidence or only passably so.

[The applicant] was not so drunk that he couldn't remember what occurred in that bedroom.

48 After the detailed analysis referred to above, the prosecutor concluded:

Therefore what he said in the record of interview about pants on all the time in the bedroom, there was no blood on the sheet, there was only touching and no sex, they are not alcohol-induced lapses of memory, they are point-blank lies; nothing short of it, and therefore I suggest to you that you ought reject [the applicant's] account in the record of interview and accept in preference the account given by [the complainant] as to her experiences.

But that you should draw the inference that any suggestion that [the applicant] was so alcohol-affected that he couldn't discern those matters and couldn't discern that [the complainant] was not consenting or might not be consenting, any suggestion along those lines ought be rejected by you.[3]

49 It is clear that even separate from the allegation of concoction involving GH, the prosecutor placed great weight on the so-called lies told by the applicant. The major 'lie' concocted above was the 'lie' as to what the applicant had said about his state of sobriety coupled with the 'lie' about what he could actually remember.

50 The question of lies had been considered and discussed in the trial. The matter was first raised by his Honour before the conclusion of the Crown case. The prosecutor, at that stage, indicated in response to his Honour that he thought that it was a credit issue (T686).

51 Almost at the end of the Crown case another discussion took place where the prosecutor said that he had resolved the matter in his own mind and said:

My concern that we discussed this morning is that if unchallenged that can flow into - well, that degree of affect of alcohol and therefore perception can mean that [the applicant] had neither an awareness that [the complainant] was not consenting or she might not be consenting. Your Honour, we talked yesterday about a credit - put it as a credit issue. I think I've got to attack it head-on. We have, subject to Your Honour's views, agreed that I can go as far as saying these are not lapses of memory, they are deliberate bare-faced lies, without going into the murky area of consciousness of guilt by avoiding taking that extra step and saying, 'They were lies told knowing that they were lies, specifically to avoid or cover up the guilt that was known in relation to these specific offences'.

52 There was then some discussion about detail. Then the matter reached resolution:

COUNSEL: I propose to say that there are three areas, at least three areas but three that I'll exemplify, in which the accused makes positive statements in the record of interview. 'I kept my pants on whilst ever I was in the bedroom. There was no blood on the sheets. There was touching but no sex.' That's a paraphrase but that's certainly the import of what was being said.

Now, I would go on to say, 'You may hear on behalf of [the applicant] that these are not untruths, they are merely the product of him ingesting a lot of alcohol and genuinely not remembering. The prosecution says this is a credit issue and these are not lapses of memory. If it was an alcohol-affected lapse of memory then it would be consistently applied across the board. But though there is reference throughout to "Don't remember this, don't remember that," at crucial points that are vital to the prosecution case he asserts a positive recollection that certain things didn't take place or didn't happen or didn't exist, and we say that's not lapse of memory because it's selective; it's untruth. It's a lie or they are lies.'

I'm happy to go no further than that, but I believe I need to meet head on the lies versus alcohol-affected perception, because unmet it can flow into failing to appreciate that she was not consenting or might not be consenting.

HIS HONOUR: Well, I've got no problem with that.

COUNSEL: I'm sorry?

HIS HONOUR: I've got no problem with that.

COUNSEL: Yes. I don't have a problem, Your Honour, with the prosecution asserting in an address that the jury should reason that these are lies. I do have a problem with them going a step further and saying that they can use - if they're satisfied that they're lies they can use it as evidence of consciousness of guilt. But in my submission, if it's confined to the Crown saying that the jury should reject the accused's account because he's not telling the truth in it, that's open to argument, in my submission. Can I say, Your Honour, it's certainly - - -

HIS HONOUR: I haven't looked at consciousness of guilt for many years now. But it's got to be in relation to a material fact.

COUNSEL: Yes, Your Honour.

HIS HONOUR: That's not the commission of the offence. I mean, if you charge him with rape and he says, 'No, I didn't rape her,' you can't then say, 'Well, you're telling lies and you've got consciousness of guilt.' It's where something occurs in the course of activity which can be - that can be verbal or physical but it is something which can be maintained as a lie and then leading to the inference that he has lied because he has got a consciousness of guilt.

COUNSEL: Yes, Your Honour. But - - -

COUNSEL 2: That's 'no blood on the sheets'.

COUNSEL: Well, just on that point, Your Honour, I don't want to tip my hand about I'll be saying in response to that. But the position is this, in my submission: the jury might be tempted to reason, in this case, that there have been lies told in the record of interview and, in my submission, even if there was nothing said by either my learned friend or myself, it's still an area where Your Honour will need to charge them in order to lock down the possibility that they might go down an impermissible path of reasoning, because I accept on one view that there may be lies contained in the record of interview and even if my learned friend doesn't touch on it and even if I don't touch on it, my submission is that Your Honour will still need to direct them on the use that can be made of those lies and the use that can't be made of those lies.

In those circumstances I don't have any difficulty with my learned friend addressing the jury on the premise that those assertions are lies. It's a matter ultimately for evidence as to whether they're lies or not. But as long as they're confined to a credit argument I don't have a difficulty with that.

HIS HONOUR: That's what I said yesterday: to me, they're credit issues.

COUNSEL: Yes, Your Honour.[4]

53 The resolution in legal terms was that a direction in accordance with Edwards v R[5] was not required, however a direction in accordance with Zoneff v R[6] was required.

54 A major difficulty I have with the case is that the discussion outlined above did not deal with the GH allegation at all and I cannot see how the lies which were being described, in particular the 'intoxication lie', did not go directly to consciousness of guilt.

55 Counsel for the applicant commenced his address with submissions about the absence of direct evidence relating to both the administration of any drug and as to the nature of the penetration. He submitted to the jury that they could not be satisfied that any penetration of the complainant's anus was penile penetration.

But the real defence case, as you are probably well aware at this stage, is the issue as to what was in the minds of the two people in that room at the time any sexual activity took place. That is, is it that case with [the complainant] - was she unaware of things that were happening? Was she not consenting, in other words? As a secondary issue from that with [the applicant], was he aware that she was not consenting.[7]

57 The defence argument then relied upon an attack on the credit of the complainant based first of all on the circumstances of the night. Counsel drew attention to the length of time she remained in the concourse area at the Casino, even though she said she was very tired. He posed the question of why she did not get a ride home with CD, because she had received a SMS earlier in the night from AB suggesting that very thing. Counsel submitted that her conduct of getting a taxi, getting into her flat and putting on pyjamas was inconsistent with overwhelming tiredness. He sought to rebut the allegation about AB. Counsel then went on to suggest that the complainant had a motive to cover up her conduct because she had been seen by CD at Barcode and since she was anxious to get back with her former boyfriend, AB, her ringing him and getting his assistance was a pre-emptory strike to avoid being challenged about her behaviour, or as a means of getting sympathy. Counsel went on to say that there were a number of features of her evidence which showed she had a 'convenient' memory. He also submitted that on the evidence, doubt must exist as to when and how sexual penetration actually occurred.

58 In his charge to the jury, the learned trial judge said nothing about lies, except to repeat counsel's argument. There was no direction whether it be an Edwards direction or a Zoneff direction.

59 There was no separate direction about the argument of collusion, although his Honour did say something about GH as a witness:

Now, I'll just make a comment about his evidence which you can accept or reject. In my view, it was very unsatisfactory evidence. The number of times he couldn't recall was very significant but the number of memories he had as to whether there was talk about drugs - he seemed to have a good memory and said, 'No, there was no talk about drugs.' If you read his evidence - and this is a comment from me which you can accept or reject - you would find - I find [GH's] evidence totally unsatisfactory, given what he can recall and suddenly what he can't recall.

The second matter was I was fairly critical of [GH's] evidence and I still am, but there is a piece of important information in that report in that he does say that the accused and the complainant were cuddling and kissing or 'pashing', as the expression is used, which is evidence, if you accept, can be used by you and is as well, supportive of what is contained in the accused's record of interview as to that event. So he did indicate that piece of evidence.

61 The law is clear enough. In general terms, an Edwards direction will only be required in circumstances where the prosecution rely upon lies or conduct as demonstrating consciousness of guilt. In relation to the question of lies, in this case, the prosecution disavowed any such proposition. Although it is very difficult to see how the particular lies could be left only as to credit, if the jury accepted the applicant had deliberately lied about whether he had removed his trousers or not, that he had seen and knew of blood in the bed and that his expressed lack of memory was a sham, it is inevitable that a jury, without proper direction, might readily conclude that such lies were told out of consciousness of guilt. It can be seen that the prosecutor did say that the effect of lies was to effectively put the applicant's version to an end. He did not go on to say what the consequences of that were, except to emphasise the lies even further.

62 It has been decided that there are some cases in which an Edwards direction is necessary in respect of the position taken by the prosecutor.

63 In R v Cuenco,[8] Nettle JA (with whom Maxwell P and Redlich JA agreed) said:

The general rule is that an Edwards direction should only be given if the prosecution contends that a lie or other post-offence conduct is evidence of consciousness of guilt, in the sense that it was told or engaged in because the accused knew that the truth or failure to act would implicate him in the commission of the offence, and if in fact the lie or other conduct is capable of bearing that character. Ordinarily, therefore, if the prosecution does not so contend, it is sufficient to guard against the possibility of the jury mistaking the effect of any evidence of lies or other post-offence conduct as evidence of consciousness of guilt to warn the jury along the lines which were propounded in Zoneff:

'You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.'

But, as was recognised in Zoneff, there are cases in which the risk of misunderstanding on the part of the jury as to the use which they may make of evidence of lies or other post-offence conduct is such that a judge should give an Edwards direction notwithstanding that the prosecutor has not put that a lie or other conduct has been told or committed out of consciousness of guilt. As Kirby J put it, the need to give an Edwards direction:

'... cannot ultimately depend upon the intention or subjective purpose of the prosecutor as to whether or not a judicial direction to a jury about that subject of lies [or conduct] must be given. The criterion must be the way the jury might use the evidence not the subjective purpose of the prosecutor in eliciting the evidence or relying upon it. ... There is a lot of loose talk in the cases about the prosecutor's intention ... [It is] irrelevant except so far as it helps to identify what the jury might have made of the questioning or evidence. '

In effect, Zoneff qualified observations earlier made by Winneke P and Charles and Callaway JJA in R v Renzella that:

'There are some cases where, although the Crown does not rely on lies as implied admissions, there is a danger that the jury may regard them in that light. Where that is so, the judge should direct the jury that the lies go only to credit and are not to be used as evidence or implied admissions of guilt. It is not for the judge to put the Crown case in a different way, and accordingly he or she should not follow the alternative course, apparently countenanced in R v Goodway, of giving an Edwards direction in case the jury chooses to use the lies as doing more than merely reflecting on the credibility of the accused'.

64 The question of the need for an Edwards direction is underlined by the absence of any direction about the allegation of concoction with GH coupled together with the learned trial judge's somewhat unfortunate remarks about the witness.

65 It seems to me that the allegation that was being made was post offence conduct of a kind which must have attracted an Edwards direction.[9]

66 That feature of the case leaves us with the question whether or not a Zoneff direction, as sought by the defence, would have sufficed. The direction was not given and no exception was taken with respect to it. I am inclined to the view that his Honour and counsel simply overlooked it in the rush to get the jury out. This is not one of those cases where the failure of counsel to take the exception can carry much weight. When the prosecution's address is looked at as a whole including the concoction allegation, I am not satisfied that a Zoneff direction would have sufficed in this case.

67 It follows that I would accept that Ground 2 as particularised in paragraphs 7 and 8 of the applicant's submissions has been made out.

68 Other paragraphs of the ground bear further consideration. Ground 2 as particularised in paragraph 4 is:

4. Intoxication of the applicant was an issue which should have attracted a direction to the jury in the learned trial judge's charge.

69 Although the applicant had never said that he was so drunk as to be incapable of forming the requisite criminal intent, he did say in the record of interview that he was 'fairly drunk' when they left the casino. He went on to say in part of answer 55 (the whole of which is set out in paragraph 36 above):

I can't remember the taxi ride. ... We went inside and crashed on the bed. I don't recall - I don't recall any sexual activity when we first went to sleep. I remember waking up and she was naked next to me on the bed. I remember touching her. She was, sort of, touching me back. At this point, I remember kissing her. I don't remember sexual intercourse, as such. I remember we played around. We were both tired. ...

70 It was plainly open for the jury to accept that the complainant did not consent (was almost certainly incapable of consenting), but the prosecution was obliged to prove that the applicant 'knew or believed that she might not have been consenting'. It was open to the jury to accept that the applicant was intoxicated, particularly when regard is had to the facts in relation to the length of time he had been drinking (about nine hours).

71 I am satisfied that the jury should have been directed specifically on the question of alcohol as it related to the question of belief in consent. It might also have gone to the question of intent on Count 1.[10]

72 I am not satisfied that a separate specific direction should have been given in relation to the possible intoxication of the complainant in relation to the question of her credit.

73 If, however, a full direction on intoxication had been given, it would have been sufficient to cover that matter as well (see Ground 1, in particular 1(a)(ii)).[11]

74 All other grounds argued, with the exception of Ground 4, the unsafe and unsatisfactory ground, could only lead to a retrial and I will not deal with them separately, except to say that some of them are subsumed by the Grounds already dealt with. I would add that that I would not by consideration of those grounds, either individually or in combination, be convinced that the trial had miscarried, but that issue is in fact otiose.

75 These matters were not argued at trial and only faintly pressed before this Court, for that reason it should not be assumed that if those matters were raised on any retrial that anything in these reasons should be taken as acceptance of the admissibility of that material.

76 In relation to the unsafe and unsatisfactory ground, I have read the whole of the material before the jury and the arguments of counsel. I am satisfied that it was open to the jury to convict on each count.

77 The Crown proceeded on the basis that the applicant or one of his cousins (acting in concert) 'spiked' the complainant's drink with the intention of disabling her so that the applicant could sexually penetrate her.

78 There was no direct evidence that any person 'spiked' her drink.

79 It was open on the scientific evidence to say that the complainant had been drugged and the drug was administered in the last drink she consumed at Barcode.

80 On the evidence of the complainant, drugs had been discussed when the group first met at the Northcote Social Club and she told the applicant she had used ecstasy 'a couple of times'.

81 The group went to a club called Bar 20 in King Street. The complainant gave evidence that she heard a conversation as they were walking down the street involving the applicant and one or both of his cousins about drugs, specifically about 'going to find someone to get drugs off'. Although the complainant said she did not know specifically who said what, she went on to say that the gist of the conversation was 'that the accused knew someone at a specific club that he could get them off' (meaning drugs).

82 When the group went to Bar 20, the applicant spent about five to ten minutes speaking to a number of the staff there, away from the group. They remained at that bar for only a relatively short time and then moved on to Barcode at the Casino.

83 GH did not remember any conversation about drugs, but he did say that the applicant was out of sight for about ten minutes at Barcode and that they did not stay at the club for long.

84 The applicant, who was a nurse by profession, denied giving any drug to the complainant.

85 The complainant was not cross-examined about the conversation near Bar 20. She was at Barcode with the applicant and his cousins, all of whom would have had an opportunity to 'spike' her drink.

86 The applicant and the complainant had been behaving affectionately to one another at Barcode and earlier at First Floor.

87 When the complainant said she was very tired and wanted to go home, the applicant said he would share a taxi with her as he lived in the same direction. Insofar as she lived in Thornbury and he in South Morang, that was more or less accurate. The cousins did not accompany them and were not told they were departing.

88 I do not see how the allegation could meaningfully be put on the basis of acting in concert, but I am satisfied that the conviction on Count 1 was not unsafe and unsatisfactory.

89 The complainant's evidence about her reaction while at Barcode, in conjunction with the medical evidence, left it open to the jury to find that the complainant had been drugged and on the whole of the evidence it was the appellant who administered that drug.

90 It was open for a jury to accept the evidence of the complainant. The criticisms made of her were explicable. It was open for a jury to accept that the applicant had told lies about what he could remember. It was open for a jury to conclude, on the evidence of the complainant taken with scientific evidence, that she was drugged. It would follow that she was incapable of consenting. If the jury accepted that the applicant had anal intercourse with her, it was open for the jury to accept that the applicant knew that she was not consenting, in circumstances where it was clear that she was incapable of consenting. If the jury were satisfied beyond reasonable doubt that the applicant had administered the drugs on Count 1 for the prohibited purpose, such a finding would reinforce that aspect of the case.

91 It follows that I would allow the appeal and order a retrial.

92 The Director's appeal against sentence does not fall for consideration.

[1] [1993] HCA 63; (1993) 178 CLR 193.

[5] [1993] HCA 63; (1993) 178 CLR 193.

[6] (2000) 200 CLR 234.

[8] [2007] VSCA 41; (2007) 16 VR 118, 123.

[9] See R v Nguyen (2001) 188 A Crim R 479.

[10] See R v TC [2009] VSCA 282.

[11] The Applicant's written submissions Ground 1(a)(ii) dealt with the failure of the learned trial judge to direct the jury in relation to the effect a considerable intake of alcohol may have had on the complainant. See also R v Mathe [2003] VSCA 165, [97].