R v Mackaway [2005] VSCA 229

2 The applicant, who is now aged 23, was presented in the County Court on two counts of rape (counts 1 and 2) and one count of recklessly causing injury (count 3). After a trial occupying eight days the jury found him not guilty on counts 1 and 3 but guilty on count 2. The learned judge heard a plea for leniency and sentenced the applicant to four-and-a-half years' imprisonment with a non-parole period of two years. He seeks leave to appeal against conviction only.

3 The grounds of appeal in the full statement filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998 are:

"1. The verdict of guilty on count 2 (rape) is unsafe and unsatisfactory; and in particular:

(a) the verdict on count 2 is inconsistent with the verdicts of not guilty on counts 1 and 3 (rape and recklessly causing injury); and

(b) in view of the evidence pertaining to each count and the way the trial was conducted, no reasonable jury could find the applicant guilty on count 2 having found him not guilty on counts 1 and 3.

2. The learned trial judge erred in his directions on evidence of complaint; and in particular he erred:

(a) in failing to direct to the effect that, unless the jury could exclude the reasonable possibility that the alleged complaints related to something other than rape (such as a physical assault or an attempted rape), they could not use the evidence as evidence of recent complaint;

(b) in failing to direct that, if the foregoing were their view, that would be a reason for doubting the truth and accuracy of the complainant's evidence of rape;

(c) in failing to direct that evidence of recent complaint was neither corroborative nor confirmatory of the complainant's evidence.

...

4. The trial miscarried by reason of the learned prosecutor's argument in his final address to the effect that the complainant's account in evidence could be regarded as consistent with the version she gave to police by reason of the absence of any such (or only few such) inconsistencies being put to her in cross-examination."

Ground 3 was not pursued.

4 Before turning to counsel's submissions, I shall say something briefly about the circumstances of the offence and the other two alleged offences. The applicant and the complainant were both regular patrons of the Dan O'Connell Hotel in Carlton. They had smoked marijuana together on a number of occasions at his house, which was close to the hotel. The house had an external bathroom at the back. The complainant was a university student who worked part-time as a waitress. When she finished work on the evening of 25th July 2003, she attended a gallery opening in Fitzroy and then caught a taxi to the Dan O'Connell Hotel, arriving at about 10 o'clock. The applicant was also at the hotel and, at one stage, the complainant asked him whether he had any marijuana. He said that he had some at home but that he was locked out of the house and his girlfriend, who lived with him, was at work in the city.

5 When the hotel started to close shortly after midnight, the complainant again approached the applicant to see whether they could go and get some marijuana. She thought that by then his girlfriend would have finished work and be at home. They walked to the applicant's house but found that the applicant was still locked out. He suggested that they might be able to get in the back, so they walked around to the lane at the back of the house. The gate was unlocked. The applicant went into the outside bathroom to look for something with which to break into the house. The complainant was standing at the entrance to the bathroom.

6 Her evidence was then to the following effect. She said that the applicant pushed her up against the vanity unit, tried to kiss her and attempted to remove both his own and her pants. He grabbed her around the throat and pushed her to the ground, so that she struck her head against the bath. That was the foundation for count 3. The applicant started pulling her pants and underwear down. She said, "Don't. I'll scream." He replied, "If you scream, I'll bash you". He then removed her pants and pushed her legs apart and began thrusting into her vagina with his penis. She squirmed to make it difficult for him to continue. That was the foundation for count 1. It will be recalled that the jury acquitted the applicant on both those counts.

7 The complainant said that the applicant then picked her up, shuffled her over to the washing machine and put his hand into the middle of her back. He said, "Bend over" and pushed her down on to the top of the machine. One of his hands was on her left hip and the other in the middle of her back. She was facing the dial of the machine and her feet were not touching the ground. The applicant then penetrated her vagina from behind and continued to thrust into her. Her next recollection was of being on the bathroom floor with the applicant on top of her and again, it appears, attempting to penetrate her. She pushed him off and escaped, but the applicant caught her in the rear lane. When she screamed for help, he released her and she ran back to the hotel without her lower garments. She was distressed and complained to hotel staff.

8 It was common ground that sexual penetration had occurred. Indeed it was put to the complainant in cross-examination, and she denied, that much more sexual activity had taken place than she alleged. The applicant's account, from his record of interview, was that intercourse was consensual but that the complainant "freaked out". The judge explained to the jury at the outset of the trial that there were only two live issues: one was whether the complainant did not consent and the other was whether the applicant knew that she was not, or might not be, consenting.[1]

Ground 1

9 Before turning to Mr Croucher's submissions on ground 1, it will be convenient to mention first three possible explanations for the verdicts on counts 1 and 2 advanced by Mr Brown. The first was that the jury may have given the applicant the benefit of the doubt as regards the first alleged penetration but considered that, by the time of the second alleged penetration, the complainant's resistance must have conveyed to him that she was not, or might not be, consenting. The second was that the applicant had, in his record of interview, clearly admitted that he had penetrated the complainant's vagina from the rear, although not in the circumstances she described. The jury were given a separate consideration direction and were instructed to give careful scrutiny to the complainant's evidence having regard, among other things, to her consumption of alcohol and possible use of marijuana. Heeding those directions, they may have been more confident of the facts constituting count 2. The third was the possibility of a merciful verdict of the kind recognized in R. v. Kirkman[2] and MacKenzie v. R.[3]

10 Mr Croucher contended that the verdicts, especially on counts 1 and 2, were an affront to logic and commonsense and smacked of "a confused compromise".

11 The second explanation advanced on behalf of the respondent was, counsel submitted, inconsistent with the way the case was run. There was, as I have said, no dispute about sexual penetration. The only issues were consent and the applicant's knowledge. Although the latter was still a live issue at the end of the trial, as evidenced by defence counsel's closing remarks, the prosecutor had argued that consent was the only real issue and both counsel had concentrated on that point. I accept, as Mr Brown did, that the second explanation is the least convincing of the three, but that is not to say that it should be entirely discounted. The admission in the record of interview may not have been logically relevant, but the jury may still have thought that it strengthened the Crown case on count 2. That would be inconsistent with a compromise.

12 Although Mr Croucher contested it, I consider that there is much force in Mr Brown's first explanation. The complainant resisted the first assault with more vigour than the second, but that is not inconsistent with concluding that, at least by the time of the second assault, the applicant must have known that she was not, or might not be, consenting. Moreover, as the learned President pointed out in the course of the argument, defence counsel in his final address had himself referred to what he described as the implausibility of the first assault. In the end, however, it is unnecessary to reach a conclusion on this point. The third explanation is adequate in the circumstances of this case. The jury may have considered this to be essentially one transaction in which justice would be done by a single verdict of guilty. That would account for the acquittal on count 3 too. In any event the acquittal on that count is readily explained by the hypothesis that the jury accepted that the applicant grabbed the complainant around the neck and pushed her down but were not satisfied that, at the time of doing so, he turned his mind to the probability that she would suffer injury as a result.

Ground 2

13 The foundation for ground 2 is the way in which the evidence of proximate complaint was given[4]. The complainant gave evidence of a complaint to a member of the hotel staff called Joanne Miller. She said that she told Ms Miller that the applicant had just "raped" her. Ms Miller's evidence was that the complainant said that she was "attacked". The complainant gave no evidence of complaint to Maurice Bighi, the owner of the hotel, but he said that she told him either that the applicant had tried to rape her or that he had raped her[5]. Mr Bighi said that he could not be sure which of those two expressions had been used.

14 The judge directed the jury in conventional terms as to the way in which the evidence of complaint could, and could not, be used. He explained that it was admitted on a very limited basis and could be used only for the purpose of testing the consistency of the complainant's conduct. He referred to counsel's competing submissions and told them that what they made of the complaint, to Ms Miller and Mr Bighi, was a matter for them. Mr Croucher submitted that the directions did not go far enough in the circumstances of this case. In addition, he said, directions of the kind set out in ground 2 should have been given. He conceded that there was no authority to that effect but said that they were required in accordance with the general principle enunciated in R. v. Miletic[6].

15 There was nothing about the facts of this case, in my view, that required the suggested directions to be given and counsel did not ask for them at the trial.[7] It was for the jury to assess the differences, and alleged inconsistencies and omissions, in the evidence of proximate complaint. The purpose of that assessment was not, as it were, to add to the Crown's case but solely to assess the consistency of the complainant's conduct. The evidence of complaint was therefore quite different from evidence of consciousness of guilt, in relation to which a direction to exclude other reasonable hypotheses is customarily given. There was no occasion to confuse the jury with a direction about corroboration or confirmation, because this was not a case where they had been instructed that the complainant's evidence needed to be corroborated or confirmed.

Ground 4

16 Ground 4 refers to the following passage in the prosecutor's final address:

"The third reason you should accept her as an honest and reliable witness is she has given a consistent account of what occurred in the bathroom throughout the proceedings. Like all witnesses in this case, she made a statement to police. You heard that they attended at the hotel at 2.40 a.m. on 26 July 2003. My learned friend did not put to her any inconsistencies between that statement and her evidence before you and you can be sure that, if there were any inconsistencies, he would have found them and put them to her. Similarly, we know that she gave a history of what occurred to Dr Marginean. Once again, if she had told a different story to Dr Marginean as to that she gave evidence before you, my learned friend would have put that to her but he didn't.

Likewise, you will be aware that a preliminary hearing was held in the Magistrates' Court on 18 May 2004. Various aspects of her evidence at the hearing were put to her as being inconsistent with what she's told you in the witness box in this trial. I ask you to look at those parts of her evidence at the preliminary hearing and ask yourselves are they really inconsistent on any matter of importance? Well firstly, are they really inconsistent? Secondly, if they are inconsistent, are they inconsistent on any matter that's of any importance in these proceedings or are they simply semantic differences, such as whether they walked through the park, across the park or along the edge of the park? And you recall here evidence that on some aspects of her evidence, her memory now is better than it was at the time of the committal, so the Crown says she has given a consistent account from the night of the incident to the present time."

17 Defence counsel took exception to that passage but expressly refrained from asking that the jury be discharged.[8] He sought a redirection and a redirection was given. It is unnecessary to set out its terms. I am satisfied that it was sufficient. His Honour directed the jury, among other things, that the inference the prosecutor had asked them to draw was not open as a matter of law and was an invitation to speculate. He told the jury that they did not know what the complainant had said to the police or what she had said to the doctor and that they did not know all that was said at the committal. They were to decide the case on the evidence, remembering at all times that they could not draw any inference adverse to the applicant unless they were satisfied beyond reasonable doubt that it was the only appropriate inference to draw.[9]

18 For these reasons I would dismiss the application.

19 I also agree that, for the reasons given by Callaway, J.A., the application should be dismissed.

[1] Crimes Act 1958, ss.36 and 38(2)(a).

[2] (1987) 44 S.A.S.R. 591 at 593.

[3] (1996) 190 C.L.R. 348 at 367-368.

[4] The usage "recent complaint" is inveterate and, it appears, ineradicable; but, to be admissible, the complaint must not be recent: on the contrary, it must be sufficiently proximate to the alleged offence. Compare the way "recent" is correctly used in the expression "recent invention".

[5] See Breen v. R. [1976] HCA 15; (1976) 180 C.L.R. 233 at 234 and compare R. v. Stoupas [1998] 3 V.R. 645 at 651.

[6] [1997] 1 V.R. 593 at 605.

[7] See R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at 356 [1]- [2] and 360 [16]-[20].

[8] Counsel at the trial was in a particularly good position to assess whether, as Mr Croucher submitted, the problem presented by the prosecutor's address was incapable of being cured by a direction.

[9] That was a practical direction to give. It was, of course, favourable to the accused. Some adverse inferences can be drawn even if they are not established beyond reasonable doubt. See Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 and R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123.