R v Minaoui [2004] VSCA 126

Court of Appeal (Vic)|2004-08-04|Before: BATT, BUCHANAN and EAMES, JJ.A.

Criminal law - Evidence - Assault with intent to rape - Indecent assault - Directions to jury - Dangerous or unreliable witness warning refused as to drug affected complainant - Tactical decision by defence not to highlight effect of drugs on complainant - Whether duty on trial judge to give direction - Dangerous or unreliable witness direction given as to witness who was in part favourable to defence - Opposition to the direction by defence counsel not determinative - Whether witness an accomplice - Tender of toxicology report under s.149A of Evidence Act 1958 - No explanation as to terms and meaning of toxicology report - Crimes Act 1958, ss.39,.

Criminal law - Sentence - Assault with intent to rape - Sentence of four years - Indecent assault - Sentence of one year, concurrent - Total effective sentence of four years with non-parole period of one year nine months within range.

I have had the benefit of reading in draft the reasons for judgment of the other members of the Court.

I agree with Buchanan, J.A. that, for the reasons given by him, the first of the two grounds pursued (ground 3) is not made out. I would add that, particularly having regard to the combination of drugs ingested by the complainant and evidenced by the analysis of her urine sample[1], any direction relating to drugs would by reason of the absence of expert evidence have had to be devoid of content and so would have been pointless.

As to the second ground pursued (ground 4), the position is, perhaps, more debateable. In the end, however, I have come to the conclusion that this ground, too, is not made out. Save that I do not find it necessary to determine whether Zoudi was an accomplice, I agree in the reasons of Buchanan, J.A.

Accordingly, I would dismiss the application for leave to appeal against conviction.

For the reasons given by Buchanan, J.A. I would also dismiss the application for leave to appeal against sentence.

I have had the advantage of reading the draft reasons prepared by Eames, J.A. I gratefully adopt his account of the facts. Unfortunately, I am unable to agree in the conclusions which his Honour has reached as to the two grounds of the application which were pursued by the applicant.

With respect to the first of those grounds, that the trial judge erred in failing to warn the jury that by virtue of a combination of factors it would be dangerous to

convict on the uncorroborated evidence of the complainant, I agree with Eames, J.A., for the reasons he has stated, that, putting to one side the effects on the complainant of her consumption of drugs, none of the circumstances advanced by counsel for the applicant required the trial judge to warn the jury about the complainant's evidence. His Honour has held, however, that the jury should have been directed as to the manner in which they could evaluate the effect of drugs upon the reliability of the complainant's testimony.

There was abundant evidence of the complainant's use of drugs on the day on which the offences were alleged to have been committed. The complainant told Dr Gall and the police that she had consumed four caps of heroin and four tablets of Valium that morning and two Doloxene tablets in the afternoon. In her evidence in court the complainant spoke of her consumption of heroin and marijuana. The analysis of the complainant's urine supported the oral evidence.

Neither the prosecutor nor counsel for the defence sought to make any use of this evidence. Although a doctor was called as a witness, neither counsel elicited any expert evidence of the likely or possible effect of the consumption of drugs on the perception or memory of the complainant or upon her ability to reason or make decisions. Dr Gall said that the complainant appeared drowsy, was unsteady on her feet and was drug-affected. He also said that she was coherent, intelligible and oriented as to time and place. A policewoman said the complainant appeared vague and affected by drugs. An ambulance paramedic who attended at the scene, when questioned by the prosecutor, said that the complainant was conscious, alert and oriented as to time and place. He said that she did not appear to be drug-affected. Counsel for the applicant emphasized the complainant's lucidity by obtaining the witness's assent to the proposition that the complainant was not affected by drugs to the extent that they appeared to have an effect upon her coherence.

There was no evidence that the complainant's mental faculties were impaired by the effects of drugs other than that she appeared drowsy, unsteady and vague, and there was a body of evidence that she was coherent, intelligible and oriented as to time and place. Counsel for the applicant was able to contend in his address to the jury that the complainant knew what she was doing and was lying as a result of a calculated decision. This was not a case in which defence counsel chose not to emphasize facts disclosed by the evidence or not to draw inferences that were open to be drawn from the evidence, thereby creating an imbalance which needed to be redressed by appropriate directions from the trial judge. Rather, this is a case where there appeared to be a potential for relevant evidence, but it was not led. There was no evidence which established either facts or a platform for inferences impeaching the reliability of the complainant's testimony. The trial judge had no evidentiary basis for directing the jury that the testimony of a witness who had consumed the quantity and type of drugs ingested by the complainant was unreliable or that it was dangerous to rely upon it in the absence of corroborating evidence. A direction by the trial judge to the jury to take into account the complainant's consumption of drugs in assessing her evidence could have been no more than an invitation to speculate.

The second ground was that the trial judge erred in directing the jury that Jack Zoudi was a dangerous witness, whose evidence should not be relied upon unless it was supported by other reliable evidence or was inherently probable.

Like Eames, J.A., I consider that Zoudi could have been viewed as an accomplice. Even if he was not an accomplice, the circumstances of his association with the events from which the charges against the applicant arose gave Zoudi a motive to exculpate himself and to inculpate the applicant. Although Zoudi, in his evidence, said that he did not witness the rape or assault the subject matter of the charges, his evidence that the complainant told him to desist from placing her hand upon his penis was inconsistent with the applicant's defence that the complainant willingly participated in oral sex with him. Zoudi's evidence suggested a general reluctance on the part of the complainant to engage in any sexual activity, rather than an aversion to Zoudi.

In my opinion, the problem posed by Zoudi's evidence was that which attends the evidence of an accomplice, namely, the presence of a motive to exculpate himself and thereby paint a false or misleading picture. While Zoudi's evidence did not directly implicate the applicant, by describing the complainant as resolutely opposed to any sexual activity he supported the complainant's account and prejudiced the applicant's position. I consider that the requirements of justice were best met by treating Zoudi as if he were an accomplice. Although the trial judge did not characterize the warning she gave the jury as an accomplice warning, her Honour's reference to Zoudi's motive to distance himself from the applicant's conduct and to conceal his knowledge of or participation in it showed that she considered that the direction was required because of the presence of the same factors which render an accomplice warning necessary.

It may be accepted, for the sake of argument, that a warning as to the dangers inherent in the evidence of an accomplice will not be given if the evidence wholly exculpates the accused.[2] Whether the evidence of an accomplice is detrimental to the interests of the accused is a matter to be determined by the trial judge.[3] In the present case, it appears to me that the nature of Zoudi's evidence justified the trial judge's conclusion that the jury should be warned of the danger posed by Zoudi's motive to exculpate himself. I agree with Eames, J.A. that, notwithstanding the ambiguity of her remarks in the course of argument, the trial judge is to be taken to have formed the opinion that the overall effect of Zoudi's evidence was detrimental to the defence case. Once her Honour arrived at the conclusion that Zoudi was in the position of an accomplice and that his evidence was prejudicial to the applicant's position, justice required the jury to be warned of the dangers which, as judicial experience teaches, are inherent in such evidence.[4] The question of the appropriate directions to be given to the jury with respect to the evidence of a witness such as Zoudi was one to be determined by the trial judge, not by counsel, although counsel's views were to be taken into account.

In the end, I am of the opinion that the applicant has not established that the trial judge's directions to the jury were in error or occasioned a miscarriage of justice. Accordingly, I would refuse the application for leave to appeal against conviction.

The applicant was sentenced to be imprisoned for a term of four years on the count of assault with intent to rape and to a concurrent term of one year on the count of indecent assault, creating a total effective sentence of four years' imprisonment. A minimum term of one year and nine months' imprisonment was fixed. The applicant has sought leave to appeal against the sentence. The grounds of the application which were pursued were as follows:

"5. The trial judge erred in failing to accord sufficient weight to mitigating factors including: * The delay between the commission of the offence and the time of sentence of the applicant. * The applicant's subsequent marriage and his status as breadwinner of his family. 6. The trial judge failed to record any or any sufficient weight to the fact that any sentence of imprisonment imposed upon the applicant would have to be served in Victoria rather than in New South Wales."

The applicant is aged 28 years. His parents migrated from Lebanon in 1974. The applicant's parents separated when the applicant was 15 or 16 years old, and the applicant, his younger sister and two younger brothers lived with his mother. The applicant completed Year 12 at secondary school, although he was also working during weekends and holidays to help support his family. The applicant completed a hospitality management course at a TAFE college and found work in restaurants as an apprentice chef. The applicant has lived most of his life in Sydney. His family is in Sydney. When the offences occurred he was in Melbourne on a working holiday.

In 1996 the applicant was convicted on a charge of robbery in company and was sentenced to serve a term of 18 months' periodic detention. In 1999, after the commission of the crimes with which this application is concerned, the applicant was sentenced to be imprisoned for a term of 30 weeks with a minimum term of 16 weeks for breach of the periodic detention order.

The applicant was interviewed by the police in March 1999. Later that year he travelled to Lebanon. He returned to Sydney in September 2000 and married a woman he had met in Lebanon. The applicant and his wife have a daughter.

The principal contention of counsel for the applicant was that the sentencing judge failed to accord proper weight to the delay in sentencing the applicant and the events that had occurred since the commission of the offences, namely, his marriage, the birth of a daughter, his purchase of a house and his full-time work.

In the course of her sentencing remarks her Honour said:

"I also take into account the fact that these offences occurred four years and five months ago."

The sentencing judge noted that the applicant had married, had a young daughter and been working as a lessee and driver of taxis and said:

"Your rehabilitation has in fact been successful."

In my opinion, while the head sentence could be described as stern, it was within the range of sentences available to the sentencing judge. The applicant's attack upon a lone, vulnerable woman was a serious offence which called for punishment to act as a general deterrent. I consider that the applicant's prospects of rehabilitation were adequately catered for by the unusually short non-parole period fixed by the sentencing judge. Counsel for the applicant sought a wholly suspended sentence. I do not think that the case for such a disposition was so compelling that the imposition of a term of more than three years' imprisonment, which entailed rejection of the request, demonstrates that the exercise of her Honour's discretion miscarried.

From her Honour's remarks it is apparent that she was conscious of the delay between the commission of the offences and sentence. In my view the significance of the delay lay in the changes in the applicant's circumstances that occurred in that period, which enabled the sentencing judge to conclude that his rehabilitation had

been achieved. I think the sentence imposed upon the applicant shows that her Honour took this circumstance into account.

Accordingly, I would refuse the application for leave to appeal against sentence.

On 21 March 2003 the applicant was found guilty by a jury in the County Court on one count of assault with intent to rape, contrary to s.40 of the Crimes Act 1958, and one count of indecent assault, contrary to s.39 of that Act. He was found not guilty on a third count, of rape. On 4 April 2003 the learned trial judge sentenced the applicant to four years' imprisonment on the count of assault with intent to rape[5] and one year's imprisonment on the count of indecent assault and ordered that the sentences be served concurrently. Of the total effective sentence of four years her Honour directed that the applicant serve one year nine months before being eligible for parole. Her Honour declared that the applicant had served 13 days pre-sentence detention.

On 5 October 1998 the complainant, a young woman aged approximately 21 years, travelled by train to South Yarra Railway Station to meet a friend and then together they travelled to Ripponlea Railway Station where the complainant handed $150 to her friend in order that he could purchase heroin for her. After waiting for a couple of hours the complainant realised her friend was not returning with either her money or drugs. She became upset and in that state was approached by two males, the applicant and a friend of his, Jack Zoudi. They expressed sympathy and offered assistance when she explained her plight. Zoudi wrote his phone number on the complainant's hand and told her that they lived in a nearby flat. They invited her to return with them to share some cannabis. She agreed and the three of them attended the flat at about 5 p.m., whereupon they consumed a number of cones of cannabis

The complainant was sitting on a sofa with Zoudi and, after being at the flat for approximately 15 minutes, Zoudi took hold of the complainant's hand, exposed his penis and placed her hand on his penis. The complainant told the jury that she tried to pull her hand away, and said "This is tripping me out". She told him to stop. She said that Zoudi ceased his action but continued to hold her hand. Then the applicant, who had been in the room, rose from a chair, came towards her, lowered his trousers and after lifting the complainant's dress tried to pull off her tights. The complainant said that when the applicant attempted to pull down her tights she said, "No, no, I'm bleeding, no", or, "I've got my period". She was wearing several layers of tights and with one hand she held on to her clothes, resisting the applicant, while Zoudi was holding her other hand. The applicant was unable to remove her clothing, but the complainant said that he placed one of his hands between her legs and touched her on the vagina. It was that act on which the count of rape was based. In her evidence she expressed some uncertainty as to whether the applicant had, in the brief contact he made, touched merely the outside of her vagina or, to some slight degree, touched inside the lips of her vagina. The uncertainty, no doubt, explains the verdict of not guilty on the count of rape.

In her evidence the complainant said that after the applicant had touched her vagina he "undid his pants" and then endeavoured to put his penis in her mouth. She said he still had his pants on when he was trying to put his penis into her mouth and she thought he was holding her head, trying to force her head forward. The complainant said that as the applicant then attempted to place his penis into her mouth she held her mouth tightly closed and would not permit him to do so. Thereupon, she said, the applicant masturbated himself while standing close to her face and ejaculated on her face, jumper and dress. The complainant said that after the applicant had ejaculated, the applicant said to her "I'm not very impressed with this." She became upset and went to the bathroom of the flat to wash her face and then fled the flat. Outside the block of flats, she was distraught, crying and upset, and three male passers-by stopped and offered her assistance. They said she was hysterical and unable to respond to their enquiries but uttered the word "rape". One of the passers-by rang the police who attended the scene. The complainant had collapsed to the ground whilst waiting for the arrival of the police. An ambulance attended the scene and conveyed the complainant to hospital.

Upon examination at Monash Medical Centre by Dr John Gall, a forensic physician with the Victorian Institute of Forensic Medicine, no injuries or bleeding were found to the vaginal area or elsewhere. She told Dr Gall that before she had admitted herself to a rehabilitation centre she had been consuming heroin to the extent of four to six caps per day, together with Serepax and other drugs. She told Dr Gall that she had a termination of pregnancy about three months prior to the day of examination. She was wearing a sanitary pad. Dr Gall said that the complainant appeared drowsy, was unsteady on her feet and was drug affected, in his opinion, but not so much that she could not consent to his examination. She told him that she had consumed four caps of heroin that morning, at about 9.30 a.m, and also four 5 milligram tablets of Valium. She had also consumed two Doloxene tablets at about 2 p.m. that day.

Senior Constable Kaylene Bastion accompanied the complainant to hospital in the ambulance and during that journey the complainant said that she had taken about four caps of heroin that morning and had also taken both Valium and Doloxene. Senior Constable Rosemary Treacy, who spoke to the complainant in hospital at about 7.30 p.m., said she appeared vague and to be affected by drugs. The complainant told her that she had used heroin and prescription drugs that day.

In his record of interview with police, the applicant had asserted that the complainant had engaged in consensual oral sex with him, and in the course of her cross-examination the complainant's credibility came under attack. In evidence-in-chief the complainant told the jury that in late September 1998 she had left the drug treatment centre where she had been receiving treatment for both alcohol and drug problems. It was there she met her friend and invited him to live with her at her parents' home. When living together they were consuming heroin but she did not disclose that to her parents. The complainant said that on the day of her assault, after having waited nearly two hours for her friend to return with heroin, she was feeling very upset and ill as a result of her deprivation of the drug.

In cross-examination she agreed that she had lied to her parents about her heroin use and that her friend who resided with her was also a heroin user. She said that on the morning of 5 October 1998 she had injected four caps of heroin before leaving her house that morning. She agreed that she told the police that she could not really remember how she got to Ripponlea Station because she was feeling "stoned" on that day. She said she did not recall telling the doctor that she had taken four Valium tablets on 5 October 1998. The complainant was cross-examined as to her criminal history and agreed that six years earlier she had been charged with theft and had also attended court more recently on driving charges and was placed on a community based order. She agreed that that instance arose out of a car chase with police during which she collided with the police vehicle. She admitted, too, to theft of a woman's handbag containing cash, a mobile phone and jewellery which occurred in March 2002. She agreed she had borrowed money from her mother and lied to her about its purpose when she was wanting to buy drugs. She agreed that she had told the police that around the time of these offences "I was scamming money and doing anything I could to get money for us", in order to support her addiction.

The complainant denied suggestions by counsel for the applicant that she had engaged in consensual oral sex with the applicant and denied the suggestion put to her that, having commenced consensual oral sex, she had withdrawn her mouth from the applicant's penis and said, "Stop. I can't do this, I've had an abortion." She denied that she had said such words, but admitted that she had, at that time, recently had an abortion.

She had taken two-and-a-half Serepax tablets the day before the assault. She said she had taken four caps of heroin on the day of the assault, commencing early in the morning and then topping herself up several hours later. She said that on this day she could not have been "too stoned" because she was able to obtain an employment benefits card. She said she was "stoned" but not "out of it" that day. She was not sick. When asked whether she told the police that she was stoned, she said "I shouldn't have used the text `stoned', I should have used `that my memory wasn't 100%'." Asked why she could not remember how she got to Ripponlea Station, she said that "Other than the fact that I was a pill addict and I had a bad memory, and the day of that statement day, the computer wiped it all and I was there from 8 o'clock in the morning until 9 o'clock re-writing the whole statement over again." She said she was very tired by the end of the statement, which was taken the day after the events occurred.

One area of challenge to the complainant's credibility concerned the inconsistency of her descriptions as to the location of the attack on her and the roles of the two men.

She told Dr Gall that she had been in a park waiting for a friend, seated at a bus stop, when two males came and sat either side of her. They took hold of her and walked her across to a block of flats and took her behind the flats, where they pulled up her dress and tried to pull down her pants. She told the doctor that one of the men appeared to be Australian and the other appeared to be Greek[6]. The Greek male had not been circumcised but she was unsure about the Australian man. She said that it was the Australian man who tried to put his finger in her vagina and the account she gave Dr Gall was that:

"They had both orally penetrated her, and by that I mean putting their penis into the person's mouth. Both had been lying on top of her, and again the Australian male had ejaculated on her right cheek, jumper and dress, and after this they had both run away."

"So far as vaginal penetration was concerned, the Australian male had managed to penetrate the vagina but there was no ejaculation whereas this didn't apply to the Greek. There was no anal penetration from either. There was oral penetration from both. There was ejaculation onto the face and clothes from the Australian male but not the Greek. There was saliva on the body from the Greek because the Greek had, well, she thought he sucked her right nipple. So far as the objects used for penetration, the Australian male is alleged to have used a finger or fingers for vaginal penetration and put his penis into her mouth, whereas the Greek had only placed his penis into her mouth."

Dr Gall said the complainant was a poor historian and said that some people were such because they were not good at putting together exactly what had happened, for various reasons, and also there were the effects of drugs, but said that she was able to answer his questions and the answers to questions were appropriate. She was orientated as to time and place. Her speech was coherent and intelligible.

In cross-examination the complainant agreed that she told the doctor that she had been taken across the road to the flats from a park where she had been waiting at a bus stop. She said, however, that she did not recall speaking to the doctor. She was asked:

"Did you tell the doctor that both males orally penetrated you?---No, I told him about the semen. Did you tell the doctor that both males were on top of you?---No. That would be a lie wouldn't it?---Yes that would be a lie. Did you tell the doctor that your right nipple had been sucked?---No. That wouldn't be right, would it?---No."

She agreed that the two men had shown apparent concern for her when they first spoke to her. She was asked whether the cannabis which had been consumed on the day had affected her and said "I felt confused and funny from the situation, but the marijuana probably added to it, yes, I did (sic) say that." She agreed that there had been some confusion between her evidence on the first day and that given on the second day in the court. She said she had been confused as to the order of events but was now confident as to whether the complainant undid his trousers before or after he tried to pull her pants down. She agreed that she had not told the police that the applicant had placed his hand at the back of her head to force her head forward. She agreed that she had not said that, but said "I don't think about this an awful lot. I don't want to, but when I have to, things come back."

Senior Constable John Atley attended the flats at 5.44 p.m. on 5 October with another officer and saw the complainant lying on the footpath with what appeared to be semen on her jumper. She was "really distressed and hysterical". She said that she had been raped by two men at the rear of the flats. The complainant told Senior Constable Treacy at the scene that she had been orally raped by two men and that one of the men had tried to digitally penetrate her. She said that one of the men had ejaculated in her mouth. Senior Constable Bastion, who accompanied the complainant to Monash Medical Centre, was told by her that two males had forced her to suck their penises and one had tried to insert his finger into her vagina. At this time the complainant appeared to be in shock and was quite incoherent.

Simon James**,** an ambulance paramedic, attended the scene at about 5.55 p.m. where he saw the complainant, who was seated in the rear of the police car. She was dishevelled and distressed and told him that she had been dragged by two males to the rear of an apartment block and been raped by both men, one of whom had ejaculated on her face and clothing and had tried to digitally rape her but was unable to do so because of the tampon she had. She told Mr James that she had taken four caps of heroin at about 10 o'clock that morning. The witness said the complainant was conscious, alert and orientated as to time and place. He was asked by the prosecutor "Did she appear to you to be drug affected at all?", and answered, "At the time I dealt with her, no." In cross-examination he agreed that the complainant had claimed that both men orally raped her. He also agreed to the proposition that the complainant was not affected by drugs to the extent that it appeared to have an effect on her coherence.

In cross-examination the complainant was asked whether she told investigating police that both men had put their penises in her mouth. She said she did not believe she had said that; if she had that would have been utterly wrong. She was asked if she had said that one of the men had ejaculated in her mouth and said that she may have said that he ejaculated on her face; she believed she got some on her lip. She agreed that she had not said in her evidence on the previous day that any of the ejaculate had got onto her lip.

The witness agreed that by telling investigating police that she had been dragged from a nearby bus stop she had been telling a lie. She said "I don't believe I said dragged. I lied, I think I lied because I didn't think anyone was going to believe me, that I went into a house by myself, I walked in there." She agreed that she lied to the police as to the location of the attack on her by saying it occurred at the back of the flats. She said "It wasn't really a conscious lie, I wasn't really thinking properly. As I said, I was worried they wouldn't believe me because I had walked into a house and smoked marijuana cones with them and ...". She agreed she had also told the doctor that the attack had occurred behind the flats but said she did not actually recall speaking to the doctor. It was put to her that notwithstanding her being upset she was "quite able to deliberately lie to investigating police about the incident" and agreed that that was so.

In the course of cross-examination the complainant became very distressed when counsel put to her the proposition that she had consensual oral sex with the applicant after she herself had undone his trousers and removed his penis. She responded "Bullshit. This is absolute crap. I didn't do any of this." The Court then adjourned and subsequently, upon the return of the jury the witness apologised for her outburst. She denied the suggestion that she had been performing oral sex with the applicant for such a period of time as to cause the applicant to be on the verge of ejaculation when she suddenly removed his penis from her mouth and said she wanted to stop. She denied that he had apologised to her after ejaculating. The propositions which were put to the complainant, and denied by her, were not the subject of any evidence from the applicant. No evidence was called by the defence.

At the commencement of the hearing, two of the grounds of appeal in the application for leave to appeal against conviction were abandoned, but during the course of the appeal counsel for the applicant sought to revive one of those grounds, in which it was asserted that the verdicts were unsafe and unsatisfactory. Counsel, stated, however, that it was sought merely to contend that if the complaints were upheld with respect to the remaining grounds, namely, those criticising the giving of one direction, in one instance, and the absence of a direction, in the other instance, then it would be contended that those errors render the verdicts unsafe and unsatisfactory[7].

Two grounds were pursued before us. Ground 3 complained that the trial judge failed to give an adequate direction to the jury as to the manner in which they should consider the evidence of the complainant. Ground 4 complained that the judge had misdirected the jury with respect to the evidence of the witness Jack Zoudi by giving the jury a "dangerous witness" direction, the giving of which direction had been expressly opposed by counsel for the applicant.

Ground 3: The need for a direction concerning the evidence of the complainant

In the course of delivering her charge the judge, in the absence of the jury, discussed with counsel the direction she proposed to give about the witness Zoudi, as being a dangerous witness. As I shall later discuss, Mr Meredith, who also appeared at trial, urged that no direction be given concerning Zoudi, but he submitted that a direction ought to be given concerning the complainant, that by virtue of a combination of factors it would be dangerous to convict on her uncorroborated evidence. Mr Meredith, identified the following factors to the learned trial judge as giving rise to the need for the direction:

"They're a combination of factors, Your Honour. The lies that she told immediately or shortly thereafter of the circumstances of the event, the fact that she may well have been under the influence of drugs at the time of the event and the capacity of that to interfere with her perception, recollection and reliability, combined with her demonstrated capacity to lie in the days leading up to the event and on top of that, your Honour, the prior convictions for dishonesty that were put to her".[8]

Without any further discussion, her Honour responded that she did not consider such a warning to be appropriate and added: " . . . to me it's a matter for a jury, they've seen her, they've heard her."

Although no authority was cited to her Honour for the giving of such a direction, on the appeal Mr Meredith relied primarily on R. v. Miletic[9] and contended that the direction was necessary and practical in the circumstances of the case. As the Court held in Miletic[10], s.61(1)(a) of the Crimes Act prohibits the jury being given a warning that the law regards complainants in sexual cases as an unreliable class of witness, but nonetheless - where the evidence of the witness did not fall into a category where specific rules applied as to the giving of a warning to the jury - the judge should give any direction that was necessary and practical in the circumstances of the case to avoid a perceptible risk of a miscarriage of justice[11]. Their Honours continued:

"There are four aspects of that general principle that we desire to mention. First, we emphasise the words `necessary and practical' and `perceptible'. A perceptible risk is one that is real and of substance, as opposed to a risk that is insignificant or theoretical. Secondly, we are speaking of directions that require the authority of the judge's office. The factors calling for the warning must be of such a character that it is unsafe to leave the jury to rely on the arguments of counsel. Thirdly, an appellate court will attach weight to the judge's assessment of what was required and, in appropriate cases, will infer from counsel's not taking an exception that the direction in question was not required. Fourthly, the consequences of failure to give the direction will depend upon whether, in the event, there has been a miscarriage of justice."

Their Honours stressed that it remains the jury which is the body entrusted with determining guilt or innocence, and not the Court of Appeal, which does not have the benefit of having seen and heard the witnesses. Their Honours added[12]:

"Where there is no specific rule requiring a particular direction, there must be an identifiable factor or group of factors calling for a direction to be given. It is not for an appellate court to make its own evaluation, for it is not equipped to do so. Counsel for the applicant must identify a specific factor or group of factors that could not safely be left to trial counsel to deal with in his address but required a direction that had the authority of the judge's office. When it is said in the authorities that the necessity for a direction arises from the circumstances of the case, what is meant is that those circumstances must include such an identifiable factor or group of factors and that the form of the direction must be tailored to the facts of the case: see, for example, R. v. Omarjee[13] at 369. In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf. Bromley v. R.[14] and Carr v. R.[15] Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury."

The warning which was sought at the trial - namely, that it was dangerous to convict on the uncorroborated evidence of the complainant - was stronger than that contended for in Miletic, which was to the effect that it would be unsafe to convict the appellant on the complainant's testimony unless after having thoroughly scrutinised her evidence the jury was convinced of its truth and accuracy[16]. Whilst maintaining his contention that the stronger warning was appropriate, Mr Meredith submitted that, at the least, a direction in the latter terms was required, and the factors of potential unreliability ought to have been spelt out to the jury. The factors of unreliability, he submitted, made her a dangerous or unreliable witness of a kind discussed in Director of Public Prosecutions v. Faure[17].

In Faure[18] the Court of Criminal Appeal held that a trial judge ought give an appropriate warning, bearing the weight of judicial authority, in any case where it was necessary to do so to avoid a perceptible risk of a miscarriage of justice. In particular, an appropriate direction ought be given in any case where identified factors rendered the evidence of a significant witness tainted or potentially unreliable[19] and where failure to give the direction would leave undiminished the risk of a miscarriage of justice. It was held that no particular formula of direction was required but that it ought be tailored to the needs of the particular case.

In R. v. Weiss[20], Callaway, J.A., speaking of Faure, held:

"The duty to warn in the manner contemplated by that case arises only where the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasised by the judge. Only then does it become necessary to give a warning which emanates from the judge with the weight of judicial office."

As to the factors said to necessitate a Faure direction, I have already detailed the discrepancies between the account given to the ambulance officer, the doctor and police officers as to the location of the rapes and the conduct of the two men involved, on the one hand, and the account given at trial, on the other hand. The jury must have appreciated the importance of the discrepancies, and in any event the trial judge gave the jury the standard direction as to inconsistencies in the account of a witness, which direction must have applied to the complainant. In those circumstances the inconsistencies did not of themselves require an additional or more specific judicial warning to be given.

In my opinion, only one of the identified factors arguably required a direction from the judge, that being the effect of drug use on the reliability of the complainant's evidence. That factor was plainly significant, in that a quantity of drugs was consumed and the applicant agreed that she was affected by drugs on the day. There was no scientific evidence before the Court, however, as to the effect of the drugs ingested by her on or about the day of her assault. Mr Meredith deliberately refrained from questioning Dr Gall on the question of drugs and not only declined to challenge the evidence of the ambulance officer, James (who said that the complainant was conscious, alert and orientated as to time and place), but put it to the witness, and got his agreement, that the complainant was not affected by drugs, in terms of her coherence.

At the conclusion of the prosecution case the prosecutor, by consent, tendered a statement of Joanne Gerstner-Stevens, by way of an admission of fact under s.149A of the Evidence Act 1958. Having been earlier alerted to that intended course the judge said to the jury that that was done in order to avoid the necessity of having to call the witness to give evidence and said there was no dispute about the evidence. The document was then read to the jury. The document was not again referred to either by counsel or in the judge's charge.

The author of the statement stated in it that she was a scientist employed by the Victoria Forensic Science Centre and the holder of a Bachelor of Science degree. She stated that on 4 November 1998 she received a sealed bag labelled with the date 15 October 1998, in which was a jar of urine of the complainant. The document continued, in the following terms:

"The urine was analysed and the following results obtained: Morphine detected, greater than 2.0ug/mL. Codeine detected, 0.52ug/mL. Desmethyldiazepam detected, less than 2.5ug/mL. Temazepam detected, less than 2.5ug/mL. Oxazepam detected, 11.6ug/mL. 11-nor-9-tetrahydrocannabinol carboxylic acid detected, 0.65ug/mL. Amphetamines not detected. Morphine is the active constituent of the pharmaceutical preparations Anamorph, Kapanol, Morphalgin, MS Contin, Ordine, Morphine Sulphate Injection and Morphine Tartrate Injection. Morphine is also a metabolite of diacetylmorphine (heroin). Desmethyldiazepam, temazepam and oxazepam are all metabolites of diazepam. Diazepam is the active constituent of the pharmaceutical preparations Valium, Ducene and Antenex. Temazepam is also the active constituent of the pharmaceutical preparations Normison, Euhypnos, Temaze, Nomapam, Nocturne and Temtabs. Oxazepam is also the active constituent of the pharmaceutical preparations Serepax, Murelax and Alepam. 11-nor-9-tetrahydrocannabinol carboxylic acid is a metabolite of tetrahydrocannabinol."

Having been read to the jury, and given an exhibit number, the contents of the statement were not thereafter explained, nor, it seems, was it further mentioned.

Mr Meredith, who was counsel at the trial, frankly conceded that although he requested the judge to give a direction about the effect of drugs on the reliability of the complainant, and now makes complaint about her Honour's failure to do so, that was not an argument which he presented to the jury. A calculated forensic decision had been taken not to highlight the extent of the impact of drugs on the victim. Indeed, in his address to the jury, counsel contended not that the complainant was so drug affected as to be dangerously unreliable, but, rather, that the complainant knew what she was doing. He submitted to the jury that in saying she had been raped the complainant had told a pack of lies at the time, and had lied again in her evidence, as a calculated decision on her part to implicate the two men. He submitted to the jury that while she had had a "cocktail of drugs", the complainant was not telling lies because she was a bit confused and drug affected, but was telling lies because she thought it was to her advantage to do so.

Mr Meredith submitted to this Court that he could not, himself, have addressed the jury as to the effect of drugs on the reliability of the witness, because to do so would have been inconsistent with the way the defence had been conducted, thus the jury had not been warned during addresses of the potential unreliability of the complainant's evidence. It nonetheless fell to the judge, he submitted, to give an appropriate direction, with judicial weight, as to her potential unreliability due to her drug consumption (whether that factor was taken alone or in combination with other factors).

It is not difficult to appreciate why defence counsel might have chosen to down-grade the impact of drugs, lest the jury came to the conclusion that the complainant was so drug affected as to have been vulnerable to a predatory sexual attack such as the Crown alleged had occurred here. That tactical course having been deliberately adopted, the question remains whether an obligation fell on the judge to direct the jury of the potential unreliability of the evidence due to the complainant's drug consumption.

Had the judge sought to give such a direction as to the effect of drugs, the immediate problem which would have confronted her was what it was she could say on the topic, save in the most general of terms. No evidence was called to explain what effect the drugs in the complainant's system might have had on her capacity for reasoning, comprehension and memory. The significance of the information contained in the tendered toxicology report was totally unexplained, and Mr Meredith did not disagree that that was by deliberate choice on his part. As counsel for the respondent observed, it might be assumed that defence counsel knew that any expert explanation of the written statement would not have assisted the defence case which was being presented.

The Court held in Faure that the judge should identify the matters of significance bearing on the assessment of the evidence of the deemed dangerous witness, and the jury should be warned about the dangers inherent in it, and the desirability, if not need, to search for supporting material[21]. The warning ought be given where it was not sufficient for the judge to rely on the addresses of counsel to draw the inherent dangers of the evidence to the attention of the jury so as to reduce the risk of a miscarriage of justice[22]. The need for such a direction would be reduced where the factors producing the unreliability were well within the capacity of the jury to evaluate for themselves[23]. Similarly, the Court observed in Miletic, that an appellate court is more likely to conclude that a warning ought to have been given if the full significance of the factors which produce the unreliability of the evidence is a matter of judicial experience rather than being within the capacity of evaluation by the jury[24].

In this case, I do not consider that the judge could have suggested to the jury that as a matter of judicial experience the complainant's level of drug consumption rendered her evidence potentially unreliable. That would be a matter for evidence, and in this case there was none on that topic. In other words, a direction from the judge would have had to be generalised in tenor. Nonetheless, in my opinion, if the question of the reliability of the complainant's evidence, by virtue of her drug consumption, was an issue in the trial then the jury ought to have been directed as to that issue and as to the evidence relevant to that issue.

This was not a case where it could be said that the addresses of counsel would have drawn the factors of unreliability to the attention of the jury. That was because defence counsel did not want to emphasise the effect of drug consumption on the complainant. Was this, then, a case where, to apply the words used by the Court in Miletic, the "concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsels' addresses", in which case it would be "only in exceptional circumstances that a warning is required"?[25]

The tactical decision by counsel can not decide the question before us, but it remains a relevant consideration as to whether the omission of a direction constituted a miscarriage of justice[26]. Also relevant is the fact that it was the considered evaluation of an experienced trial judge that it was not necessary in the circumstances of the trial to give the direction sought[27].

It may be thought that had the judge given the direction sought then it would have cut across the primary defence of consent which was being advanced, but her Honour did not say that her refusal to give a direction was because it would be inconsistent with the defence case being advanced. Rather, her Honour implied that she did not accept that the factors identified by counsel, including the question of drug consumption, required a warning be given.

It is not clear just what considerations did lead to her Honour's conclusion, but it must be the case that her Honour did not perceive any risk of a miscarriage of justice which required that such a direction be given. The judge must have considered that the factors raised by counsel were all clearly before the jury and could be assessed by the jurors without further direction.

As McHugh, J. observed in his dissenting judgment in Doggett v. The Queen[28] the trial judge, having heard addresses, is in the best position to judge whether a direction is required and "Except where the due administration of justice clearly demands that juries be directed as to particular matters, the contents of summings-up are best left to the discretion of those who preside at criminal trials."

In Doggett[29], Gaudron and Callinan, JJ. said that the correct approach of an appellate court to a complaint that a necessary direction had not been given (in that case, a Longman direction) was to examine the evidence relevant to the particular matters with which the Longman direction deals and to ascertain whether the case called for the direction, rather than to make a broad assessment of the evidence overall in the trial. That latter exercise would become appropriate for the later question whether the proviso ought be applied, were it first concluded that the direction ought to have been given. In his judgment, Kirby, J. held[30] that the decision of the judge not to give the direction will be assessed against "the ultimate issue", as identified by Deane, J. in Longman[31] as "whether, making due allowance for the advantages enjoyed by the trial judge, the circumstances of the case were such that it was not open to the judge to fail to be satisfied that such a warning was justified".

The decision taken by the trial judge meant that the jury were never told that one issue was whether the complainant's evidence as to lack of consent was unreliable not because she was fabricating her account, but because she was drug affected. In effect, that is now said to have been an issue in the trial and yet neither the judge nor counsel ever addressed it.

I have concluded that the effect of drug consumption on the complainant's reliability was raised in the trial by the evidence of various witnesses, including the complainant, and the jury were never told how they should approach that issue and what evidence was relevant to its determination. The situation was made worse by the tender of the unexplained statement concerning the drug ingestion of the complainant. In his record of interview, the applicant had claimed that the complainant consented to oral sex and in my opinion it is likely that the jury would have considered the possibility that she had done so initially and had then withdrawn her consent. The statement which she attributed to the applicant - "I'm not very impressed with this" - might well have been regarded as being consistent with his assertion that she had initially consented to oral sex but then stopped at a time when he was about to ejaculate. Although the defence contended that she was deliberately denying that sequence of events the jury may well have pondered whether the complainant's account was wrong for some other reason. In my opinion, a trial judge ought not to have left the situation with that degree of uncertainty as to an issue in the trial.

The fact that unreliability of the complainant's evidence due to drug consumption was an issue was confirmed by the very fact that a direction on the topic was being sought. I have concluded that the judge ought to have given a direction to the jury as to that issue, albeit that the terms of the direction would have been shaped and confined by the absence of scientific evidence on the topic. Failure to give the direction constituted a miscarriage of justice, in my opinion, but there remains the question whether this would be an appropriate case for the application of the proviso to s.568(1) of the Crimes Act, 1958. I will address that question after I have considered the next ground of appeal.

Before turning to ground 4 I will address one discrete argument which was advanced by Mr Holdenson, counsel for the respondent, which is relevant both to the proviso issue and also to the ground of appeal itself. He submitted that the dangerous witness direction which was given concerning Zoudi (which I will next address under ground 4) was in itself applicable to the complainant. In the Zoudi direction the judge told the jury that the general direction could be applied "to any such witnesses as in your opinion may fit my description of a dangerous witness". Her Honour did not identify any witness who might have fallen within that description. In my opinion, it is improbable that the jury might have thought the judge embraced the complainant in the dangerous witness warning. Indeed, the failure to name the complainant as one who might fall within the category of possible dangerous witnesses might have implied that the complainant was not someone who met that description. Thus, I do not believe that the jury would have considered the terms of the direction that was given concerning Zoudi as having any relevance to the complainant.

Before leaving this ground of appeal, I add one further observation. The course taken by the Crown of tendering a very complicated toxicology report without offering any explanation as to the meaning and significance of its terms seems to me to be a very undesirable one. It is a course which invites a jury to conduct its own research and investigation. It is not suggested that the jury indulged in such activity, but it remains the fact that they were left with a piece of incomprehensible evidence, which either they ignored or they engaged in untutored speculation as to the possible consequences of ingesting the drugs disclosed in the report.

The course adopted of not explaining the evidence was one agreed by counsel on both sides, without complaint by the judge. In my view, notwithstanding the consent of counsel her Honour could have refused to permit the document to be tendered, in the exercise of her discretion under s.149A of the Evidence Act 1958, on the basis that it was "contrary to the interests of justice" to admit it without further proof being provided. Whether that course ought to have been adopted in this case is a matter on which we heard no argument, and upon which I express no conclusion.

Zoudi was called as a witness by the Crown. He had made a statement which obviously implicated the applicant, and his evidence was no doubt the subject of anxious anticipation by the applicant and his counsel. In the result, defence counsel did not attack his evidence and urged the judge not to give the jury any direction or warning as to Zoudi's reliability.

In his evidence in chief as to events occurring upon their return to the flat Zoudi said that after the three people had been smoking marijuana for about fifteen minutes the two men started kissing the complainant. He said he removed his penis from his trousers, placed the complainant's hand on it and when she said "no" he said "that's fine". Nonetheless, as he said, he again took her hand and moved it towards his penis and she then said "No, no, I don't want nothing to do with that", whereupon he stopped his action and placed his penis back in his trousers. He said that he then left the lounge room for some three to four minutes and when he returned from the kitchen he saw the applicant standing near the couch with his trousers down and his penis erect. The applicant pulled up his trousers and said he was going to work, and left the room. The complainant was looking up, "a bit distressed", and Zoudi, having observed semen on her jumper, asked if she was alright and wanted a hand cleaning it up. The complainant "started to scream and shout" and said "I just want to leave". Neither she nor the applicant had said anything to each other. The applicant left the flat, leaving Zoudi with the screaming complainant. Zoudi said to her "There's the front door" and "she just grabbed it and she just ran".

After discussion with defence counsel, as I will recount, the judge said that she would give a dangerous witness direction, which she did, in the following terms:

"Now, in this case the Crown has called Mr Jack Zoudi. Mr Zoudi, you will recall, said he was not present when an incident allegedly occurred between the accused and the complainant... Moreover, Mr Zoudi said he did not refuse to release [the complainant's] hand from his penis when she protested that she did not wish to do this. However, you might well consider that Mr Zoudi knew or may have known more about what was going on than he was prepared to tell. If Mr Zoudi's involvement was more than he has told you about, he may have a strong motive now to distance himself from it and to conceal his knowledge or participation in any of the alleged events that occurred in the flat. Such a witness can be considered a dangerous witness because, in the course of trying to distance himself from the events that are alleged to have occurred, he may slant his evidence against others. Nothing lends such an air of innocence to a person as their blaming someone else. You should treat the evidence of any such person with caution, remembering that such a witness may have a motive to conceal, to exaggerate or even to lie. You should scrutinise that evidence looking for any inconsistencies, comparing it with any documentary evidence or the evidence of other witnesses. Generally, you should be slow to rely on such evidence unless it is supported by other evidence of reliability or is inherently probable. Now, this is equally a direction to be applied by you to any such witnesses as in your opinion may fit my description of a dangerous witness. It is for you to bear my warning in mind and apply it where you see fit."

Her Honour described this as constituting a "dangerous witness" warning. That was not the kind of warning her Honour first contemplated giving in this case. Initially, she had said to counsel that she was proposing to give a direction on the basis of Zoudi being an accomplice[32]. On that first occasion the following exchange occurred between defence counsel and the judge:

"HER HONOUR: Now, Mr Meredith, in respect of Mr Zoudi being an accomplice. MR MEREDITH: Yes. HER HONOUR: Have you had time to think about it? MR MEREDITH: Yes, I have, Your Honour. I am not convinced that an accomplice warning would assist my client in the particular circumstances of this case. HER HONOUR: I am sure it might not, but it [sic] think the law obliges me, whether counsel for the defence want it or not, the law obliges me that if someone could be classified as an accomplice, that I must give the warning. MR MEREDITH: Yes, it's an unusual situation, because Zoudi hasn't really said that much that damages my client's case, as Your Honour no doubt would well understand. HER HONOUR: Isn't it? MR MEREDITH: The giving of the warning may, in the eyes of the jury very well undermine his credibility as a witness. HER HONOUR: Yes - I can't tell you the name of the case, but I am sure, quite sure, that the law is, whether counsel for defence request it or oppose it, if the person could be classified as an accomplice, then the warning must be given. And I think Mr Zoudi would have to be classified as an accomplice on the evidence given - --- MR MEREDITH: Of the complainant? HER HONOUR: By the complainant."

It was at a later time in the trial - after she had commenced her charge - that her Honour, in the absence of the jury, returned to the question of a direction concerning Zoudi. Her Honour said to counsel that she had thought further about it and had concluded that Zoudi was not an accomplice, a proposition to which counsel agreed, but her Honour said that "I think he does come under the category of a dangerous witness". Counsel said that was not his submission, but her Honour said it was for her to determine whether or not he could be classified as a dangerous witness and that it was for the jury to decide whether that was the case or not. It was appropriate to give such a warning. Counsel said he did not want the warning to be given, and the following exchange occurred[33]:

"MR MEREDITH: I don't submit [sic] such a warning in the interests of the accused. HER HONOUR: I think it is in the interests of the entire case. They'd be a dangerous witness warning, which I [shall have to explain][34] to them they can apply to any witness. MR MEREDITH: I was going to raise that issue with your Honour with respect to the evidence of [the complainant]. HER HONOUR: I would never describe [the complainant] - she is a complainant, they either believe her or disbelieve her. But what I am going to do is tell them what a dangerous witness is, and I will explain why Mr Zoudi could fall in the category, and that is because he has a very vested self-interest in not becoming an accused. That is what makes him a dangerous witness. Accordingly what can happen is that he can do a number of things including placing the blame elsewhere and just denying things generally. She doesn't face any charges, she's not in that category."

It is not clear what her Honour meant by saying that Zoudi had a vested self-interest "in not becoming an accused". Counsel for the respondent advised us that Zoudi had pleaded guilty on 10 October 2000 to one count of indecent assault and gave an undertaking to give evidence against the applicant, as a result of which the sentencing judge gave him a sentencing discount. Counsel for the respondent submitted that it could be inferred that her Honour was aware of those facts and meant by her remark that Zoudi was at risk of being recalled for further sentencing, in the event that he broke his undertaking to give evidence in accordance with his statement to police, and it was that which made him a dangerous witness in the context of this case. I doubt whether that is what the judge did mean, but, in any event, by the time the direction was required Zoudi's evidence had concluded and no attack had been made on him either by the prosecutor or by defence counsel to suggest that he had departed from his statement to police. Plainly, however, the judge believed he did not say all that he could have said. In sentencing the applicant after his conviction the judge said that she did not accept Zoudi as to his account, generally, and in particular about his not being present when the applicant may have assaulted the complainant. Her Honour said "I believe that he significantly underplayed his knowledge of what you did and his own activity on that day".[35]

In contrast to the terms of the warning given to the jury, it could not be said that Zoudi was "blaming someone else". Rather, he appears to have tried not to directly implicate the applicant. As is clear, however, from the statements made by counsel to the judge (and agreed before us to be the case) Zoudi's evidence was in some respects damaging to the applicant's cause.

Whilst Zoudi did not say that he saw the applicant conduct himself in the way the complainant described, much of his evidence was unhelpful to the applicant. At best, some of it was neutral in effect. Zoudi's evidence was that the complainant told him to stop when he placed her hand on his penis and, in response, he desisted. On behalf of the applicant (who did not give evidence) it was suggested in cross-examination of Zoudi, who allowed the possibility, that the applicant may not have been in the lounge room when those events occurred and may not have heard the complainant call upon Zoudi to desist.[36] In his final address the prosecutor submitted to the jury that the layout of the flat made it improbable that even if he had been in the kitchen alcove the applicant could not have heard what the complainant said. However, even if the applicant had not heard the complainant say "No" to Zoudi, her response to his advances was consistent with the complainant not wanting to engage in sexual activity, at all. Accordingly, the evidence of Zoudi that the complainant told him to desist was quite inconsistent with the applicant's assertion that shortly afterwards the complainant undid his clothing, took out his penis and of her own volition commenced to perform oral sex with him.

Neither counsel was able to refer us to a decided case where a trial judge in the face of express opposition by counsel to the giving of such a direction nonetheless gave a dangerous witness direction and where the complaint on appeal was that the direction ought not have been given.

As I have said, her Honour concluded that Zoudi could not have been regarded as an accomplice, a conclusion which defence counsel supported at the time, but one which I am by no means persuaded was correct. Zoudi pleaded guilty to one count of indecent assault on a presentment which asserted that he either aided and abetted or else acted in concert with the applicant also on counts of rape and attempted rape. Verdicts of not guilty were entered as to the last two counts, upon the Crown leading no evidence. There was evidence on which a reasonable jury could have found that he was a participant in the events described by the complainant (to apply the test in Davies v. D.P.P. (U.K.)[37]). The question was not, however, argued before us, and I am content to assume that Zoudi was not an accomplice. It is relevant, however, to consider what obligation might have fallen on the trial judge, in the face of opposition by counsel to the giving of an accomplice warning, had that been the warning in question.

In R. v. He and Bun[38] counsel for the two applicants had sought a Faure warning for a witness and both had disavowed that they would suggest to the jury the witness was an accomplice. Counsel for a third accused had opposed the giving of either direction, because the witness had exculpated that accused. The judge chose to make comments, but not give directions, about the reliability of the witness and thus did not give either a dangerous witness or an accomplice direction. On appeal it was contended that notwithstanding the position taken by counsel at trial the judge was in error in not giving an accomplice direction. Phillips, C.J. and Batt, J.A. (with whom Buchanan, J.A. agreed) held that in any case where it was open to the jury to conclude that a witness was an accomplice the giving of an accomplice direction was mandatory, and could not be overridden by opposition to that course from counsel. Their Honours cited Davies v. D.P.P. (U.K.)[39], Tripodi v. The Queen[40] and R. v. Miletic[41] in support of that conclusion.

The decision in He and Bun was followed by Winneke, P. (Tadgell and Buchanan, JJ.A. agreeing) in R. v. Georgievski[42], a case where the trial judge raised the question whether he ought give an accomplice direction. Neither of the counsel for the two co-accused sought an accomplice direction, the applicant's counsel being content with a dangerous witness direction and counsel for the co-accused seeking no direction at all, because the evidence did not implicate his client. The judge gave a dangerous witness direction but not an accomplice direction. The co-accused was acquitted. On appeal counsel for the applicant contended that an accomplice direction had been required. The Court agreed that such a direction was mandatory in the circumstances. The Court of Appeal in Georgievski was not called on to consider whether the opposition of counsel for the co-accused was relevant to the question of the giving of an accomplice (or any other) direction for the other accused.

Mr Meredith submitted that the principle stated in He and Bun was expressed too broadly and, in any event, ought not be applied to the present case, which concerned not an accomplice direction but a Faure warning. He submitted that in none of the cases cited in He and Bun in support of the mandatory obligation to give an accomplice direction had it been the situation that counsel for the accused had expressly requested that an accomplice direction not be given, lest it damage the prospects of acquittal of the accused. Furthermore, he submitted, two relevant decisions of the Full Court, which cast doubt on there being a mandatory requirement for an accomplice direction, had not been referred to the judges in He and Bun. Those two cases were later noted in R. v. Fountain and Tootell[43]. In that case, too, complaint was made on appeal about the omission of an accomplice direction which was not sought at trial by defence counsel, but was also not expressly opposed. The appellant contended that an accomplice direction had been necessary, and relied on He and Bun. In response, counsel for the respondent referred to the two cases now cited by Mr Meredith. Charles, J.A. (with whom Buchanan and Chernov, JJ.A. agreed) noted the two cases, but held that it was not necessary to determine whether the obligation to give an accomplice direction did not apply where the giving of the warning could not serve the interests of the accused or would damage his interests.

The first of the cases to which the court had not been referred in He and Bun was R. v. Gallagher[44], in which complaint was made on appeal that an accomplice direction had not been given, but the Court held that the strenuous and successful opposition to such a direction, at trial, by defence counsel meant that its omission could not constitute a miscarriage of justice, because the opposition to such a direction "was plainly in the best interests of the applicant"[45]. The Court held that "the purpose of the giving of the accomplice warning is to protect the position of an accused person"[46]. The Court cited R. v. Anthony[47], which was the second of the two cases which had not been referred to the Court in He and Bun.

In Anthony there was evidence implicating the applicant in the offence but a co-accused pleaded guilty and gave evidence entirely exculpating Anthony. An accomplice direction was not sought at trial but its omission was a ground of appeal. The Court held that where the evidence of an accomplice was wholly exculpatory there was no rule of law requiring that a warning must be given:

"The rule requiring a warning as to the evidence of an accomplice is one directed to serve the interests of the accused. It would be curious that it should be obligatory on the part of the trial judge to give the warning in cases such as the present where it would or may operate to the prejudice or disadvantage of the accused, as for instance by drawing pointed attention to the possibility of rejecting the exculpatory aspects of A's testimony and using some other part of it in a manner adverse to B."[48]

The Court observed that one reason for not requiring the giving of a direction in those circumstances would be the difficulty of framing a direction where on some hypotheses the evidence might be exculpatory but on others it might be incriminatory. The Court, however, made it clear that the decision whether to give a direction was for the judge, not counsel, to determine. Their Honours held:

"We think that in cases such as that now under consideration the proper view is that it is a matter for the discretion of the trial judge whether he will or will not give a warning to the jury as to the evidence of an accomplice. This was the approach made and, as we think, correctly made by the learned chairman at the trial of the applicant."[49]

"We think his Honour had a discretion in the matter. He could have attempted to frame a warning; or he could conclude that such a course would be dangerous, or at least disadvantageous, or of doubtful value, from Anthony's point of view. He took the latter view, and Anthony's counsel agreed with him."[50]

Their Honours held that it was the judge who had the discretion to exercise and whether or not appellate counsel disagreed with the course adopted by trial counsel, the discretion had not been shown to have miscarried.

A similar approach was adopted in Gallagher, where, once again, the Court did not go so far as to suggest that an assertion by counsel as to what was in the best interests of the accused determined whether a direction ought be given. In Gallagher the Court held that: "Nothing in the case suggests that the interests of the accused would have been served by the giving of the warning. To insist upon giving the customary warning as to the evidence of an accomplice in circumstances where to do so could not serve the interests of the accused or would be positively damaging to those interests would be to elevate the rule of practice above the end which it is designed to produce . . ."[51]

In effect, Mr Meredith contends that his assessment, as defence counsel, of what was in the best interest of the accused had to be accepted by the judge, but the formulation of the principle in the passages cited above suggests that the Full Court left the assessment of what was required with the trial judge. A similar view was taken in England by the Court of Appeal in R. v. Royce-Bentley[52] a case where an accomplice gave evidence which was in part favourable and in part unfavourable to the defence. Lord Widgery, C.J., delivering the judgment of the Court, held:

"In our judgment, where a trial judge is faced with the situation which arises here, he should of course consult counsel in the absence of the jury before taking any final decision, but having done that, he ought to consider whether on the whole, more harm to the defence would be done by giving the accomplice direction than by not giving it, and if he comes to the conclusion that on the whole more harm would be done in that way, then it is no irregularity on his part in the conduct of the trial if he decides not to give the accomplice direction. . . . It follows that if he comes to that conclusion with the active encouragement of counsel for the defence, the more clear it is that no irregularity has taken place."

A broadly similar view of the role of the trial judge was taken in another context by Winneke, P., Brooking, J.A. and Southwell, A.J.A. in R. v. Ryan (No.2)[53] a case where complaint was made that the trial judge should not have given a Domican[54] direction because the evidence of the identification witness tended to exculpate the accused and implicate someone else. Southwell, A.J.A. referred to Gallagher and Anthony and held that where the only identification evidence tended to exculpate the accused then "it may well be undesirable"[55] for the judge to give the direction, but his Honour held that, even so, the judge was not in any way inhibited from making a comment about the possible unreliability of the evidence. Furthermore, where the judge concluded that evidence from other witnesses did tend to identify the accused then it would be appropriate to include the apparently favourable witness in a general Domican direction, because it would be absurd to have to warn the jury only as to witnesses whose evidence favoured the prosecution and not as to those who favoured the defence.

I was initially troubled by the statements of the judge to defence counsel during discussion about whether a direction ought be given. When counsel said he did not want a direction her Honour responded: "I'm sure you don't". When counsel then said he did not submit that the direction would be in the interests of the accused her Honour responded that such a direction "is in the interests of the entire case". That exchange is capable of conveying that the judge believed that she had an obligation to warn the jury about the potential unreliability of a witness who favoured the accused. As is made quite clear in Faure[56], the warning about the potential unreliability of the evidence of a witness is concerned only with evidence harmful to the prospects of the accused, and with the danger of a miscarriage of justice by way of an unsafe conviction_._

Mr Holdenson_,_ as counsel for the respondent, did not contend that the brief reasons stated by the judge for her decision to give the Faure direction were adequate in the circumstances. Mr Holdenson submitted, however, that the direction could only have harmed the Crown case and, as to the defence case, would, at worst, have had the jury disregard Zoudi's evidence. He submitted, that the judge must have concluded that in her opinion the evidence of Zoudi was harmful to the accused and was potentially unreliable. Although I do not accept that the direction could have had no adverse impact on the defence case, I agree with Mr Holdenson that her Honour must have meant by her reference to "the interests of the entire case" that when viewed overall the evidence could be seen to be harmful to the defence case and to come from a witness who met the criteria of a dangerous or unreliable witness. In viewing the evidence of the witness as being more harmful to the defence than did defence counsel her Honour may have been adopting what Kirby, J. described (with respect to a Longman warning) as being a "protective" approach towards the position of the accused.[57]

I return to the question whether a Faure direction ought be given in the face of opposition by defence counsel.

The approach taken by appeal courts to cases involving an accomplice direction provides guidance as to the approach to be taken where what is in issue is the giving of a dangerous witness direction, but the purpose and scope of an accomplice direction are not precisely the same as those of a Faure dangerous witness direction. As Winneke, P. noted in Georgievski[58], the Faure direction only warns the jury of the potential unreliability of the witness, whereas the accomplice direction focuses on the unsafety of convicting the accused upon the evidence of the witness unless there is reliable corroboration for the evidence of the witness. Winneke, P. said in Georgievski that unlike a dangerous witness warning an accomplice warning went to the core of the jury's function.

The very nature of an accomplice direction proceeds on an assumption that both the accomplice and the accused had engaged in criminal activity, whereas a dangerous witness warning need not make that assumption at all. That fact makes an accomplice direction a warning that carries some risks as well as benefits for an accused. However, it is more usually the case that the accomplice is giving evidence which is plainly damaging to the defence and it is the danger of an unsafe conviction which motivates the courts to ensure that the warning is given. The direction guards against a miscarriage of justice being produced by virtue of the jury failing to appreciate the potential unreliability of the evidence of an accomplice. Where the accomplice gives evidence apparently favourable to the accused person the risk of a conviction constituting a miscarriage of justice is significantly reduced, and defence counsel might wish to avoid the direction. What is clear, however, is that the need for an accomplice direction is based on long judicial experience that accomplices, as a class, are indeed inherently unreliable, so that the risk of them producing a miscarriage of justice by their evidence is never removed.[59]

It is not necessary for the purpose of this application to resolve the question whether the requirement of giving an accomplice direction was stated in terms too absolute in He and Bun and in Georgievski. The role of a Faure warning is somewhat different. The dangerous or unreliable witnesses to whom a Faure warning might apply are not members of a recognisable class for whom there is a judicial experience - one not likely to be shared by the jury - that the evidence is potentially unreliable. The necessity to give a dangerous witness warning must be determined on a witness by witness basis. Although it is the judge who carries the overriding duty to ensure that the trial is fair it is usually defence counsel who seeks to satisfy the trial judge that the witness is indeed so dangerous or unreliable that the jury must be warned in that regard by the trial judge, in terms adapted to the needs of the case at hand, but carrying the weight of judicial office. In my opinion, in common with an accomplice warning it is a direction concerned with the interests of the accused, and where defence counsel, as a considered decision, not only declines to advance any argument why the witness ought to be subject to such a direction, but positively opposes a direction, a judge ought be very slow to conclude that it is necessary to give the direction in pursuance of the judge's overriding duty to take steps to avoid a miscarriage of justice.

Mr Holdenson pointed out that none of Zoudi's evidence did, in fact, offer positive support for any defence by the applicant, but Mr Meredith, whilst acknowledging that Zoudi's evidence was harmful in some respects to the applicant's cause, submitted that much more harm was done to that cause by the giving of the direction. He submitted that the jury were bound to treat Zoudi and the applicant as though they were "two peas in a pod". The danger of the jury being warned that Zoudi's evidence was unreliable or that he knew more than he was saying was that those statements implied that he was lying in order to assist the applicant. It is to be observed that the direction given did not warn the jury to treat Zoudi's evidence as potentially unreliable only where it was at odds with the account being advanced on behalf of the applicant. The wording amounted to a direction to the jury to be wary of all of his evidence, thus devaluing it even if the jury considered it supported the case of the applicant. The purpose of a Faure direction is to warn the jury of the potential of the witness to give adverse evidence; not his potential to assist the defence case.

The direction which was given directed the jury to look for other evidence of reliability, but did not identify any evidence which might have provided support for Zoudi's evidence. Mr Meredith, with some justification, said that the applicant's cause would have been even less assisted had the jury been invited to consider whether Zoudi's account was corroborated.

The reasons given by the judge for proceeding as she did in the face of opposition from defence counsel[60] are by no means satisfactory; indeed, apart from the brief exchanges with counsel which I have quoted, no reasons, as such, were provided. In fairness to her Honour, however, the submissions made to her in opposition to the course proposed were very limited, and no authority was cited to her Honour. The arguments addressed to us on behalf of the applicant on appeal were considerably more refined than those stated to the judge.

It seems possible that the judge was applying He and Bun (although her Honour could not recall the name of the case) to a dangerous witness direction and believed that just as that case obliged the giving of an accomplice direction, irrespective of counsel's objection, the same principles applied to a dangerous witness direction. Putting to one side the question whether the requirement to give an accomplice direction is an absolute one, and overrides the opposition of counsel, there is no decided case to which we have been referred that suggests that such an absolute obligation applies in the case of a Faure direction, save to the extent that a trial judge always maintains the overriding duty to ensure that any appropriate direction is given that is necessary to reduce the risk of a miscarriage of justice. Her Honour did not say that it was that supervening responsibility that she was meeting when overriding the wishes of defence counsel.

Whilst her Honour was entitled to conclude that a direction was required, because the evidence of Zoudi was both harmful to the defence case and was potentially unreliable, it is impossible to ascertain whether the judge accepted that, having reached those conclusions, she then had a discretion not to give the direction. If she did have that understanding then it is impossible to know whether her Honour regarded the opposition of defence counsel as having any bearing on its exercise. At the very least, it seems to me that her Honour did not give appropriate weight to or appreciate the significance of the opposition of defence counsel.

It may be that that one factor in the judge's mind in deciding to give the direction which she did was that had she not done so and had the applicant been convicted, complaint might then have been made on appeal about the omission of a direction concerning Zoudi's evidence. Given that its overall effect was arguably adverse to the interests of the applicant, it might then have been argued that, notwithstanding what was said by counsel at the trial, either Zoudi was an accomplice - requiring a warning on that account - or at least he was a dangerous witness, necessitating a Faure warning. As the decided cases demonstrate, such a change in approach between trial and appeal is common in criminal appeals, but in this case it is difficult to imagine that such a complaint could have been successfully made on appeal.[61]

Whilst sympathising with the dilemma which the judge may have found herself to be in, in my opinion, in the circumstances of this case, the Faure direction concerning Zoudi's evidence should not have been given in the face of opposition from defence counsel and the giving of the direction constituted a miscarriage of justice.

For completeness, I mention one discrete argument advanced by Mr Meredith under this ground. He submitted that one danger of the direction was that the jury might conclude that if Zoudi's account was unreliable then the "version" of events given by the applicant in his record of interview was equally unreliable. Mr Holdenson submitted that the last concern had no merit. The jury had been directed that "evidence" was that given in the witness box, and there was no danger that the jury would improperly apply the direction about Zoudi in the manner suggested. I do not consider that the risk could be entirely eliminated, in the circumstances, especially given the fact that the record of interview was video-taped. The jury were very interested in the evidence of Zoudi; indeed, even before the judge had commenced to summarise the evidence they had expressly asked to have Zoudi's evidence read back to them. I am not, however, persuaded that there was a real risk of misuse of the direction as suggested by Mr Meredith. The Court ought to assume that the jury would follow instructions given to it.

Having reached a similar conclusion as to both grounds of appeal I return, then, to the question whether the proviso ought be exercised.

The ultimate question is whether because of the absence of the direction (or the giving of an inappropriate direction) there has been a miscarriage of justice calling for the convictions to be quashed[62]. The onus is on the Crown to establish that the proviso ought be applied on the basis that there was no substantial miscarriage of justice[63]. Not every wrong decision of a question of law will result in the overturning of a conviction, and mere misdirection on a matter relevant to the jury's consideration will not suffice[64]. The test has been variously stated[65]: whether the ruling deprived the applicant of a real chance of acquittal[66]; whether the omission to give the direction deprived the accused of a chance of acquittal that was fairly open.[67]

Were ground 3 the only ground of appeal on which the applicant succeeded the Crown may well have discharged the onus upon it as to the application of the proviso because the deliberate defence course of preventing any scientific evidence of the effect of drug use being placed before the jury necessarily limited the effectiveness of any direction which the judge could have given, in any event. Furthermore, it might be said that had it been emphasised to the jury that the complainant may have been so affected by drugs as to be an unreliable and dangerous witness, the chance of acquittal on which the primary defence of consent was predicated would have been reduced at the same time that the chance of acquittal based on her unreliability may have been advanced. A chance of acquittal is not "fairly open, and lost, when counsel, by a forensic decision, chooses to run a defence which is inconsistent with it": see TKWJ v. The Queen[68].

As to the application of the proviso to ground 4, Mr Holdenson submitted that the direction could only have harmed the Crown case and, as to the defence case, at worst it would have had the jury disregard Zoudi's evidence. I do not accept that analysis. In my opinion, it can not be said that the giving of the direction could not have caused the applicant to lose a chance of acquittal fairly open. That conclusion is even clearer when the impact of the direction which was given concerning Zoudi is taken together with the omission of the direction concerning the complainant.

The warning concerning Zoudi's evidence may well have encouraged disbelief of Zoudi's veracity. In the absence of a direction concerning the complainant, it was only Zoudi's evidence, among all of the witnesses, that was singled out for a warning about its potential unreliability. In those circumstances the failure to direct the jury as to the issue of the unreliability of the complainant's evidence, by virtue of her drug use, gained added significance.

In the result, the Crown has not persuaded me that there was no substantial miscarriage of justice in the trial.

I conclude that both grounds of the application for leave to appeal against conviction have been made out and that it would be inappropriate to apply the proviso to s.568(1) of the Crimes Act. In my opinion, the application for leave to appeal against convictions should be granted, the appeals be allowed, the convictions be quashed and a retrial be ordered.

I am in the minority in my conclusion as to the outcome of the application for leave to appeal against conviction. The majority judges are also agreed as to the outcome of the application for leave to appeal against sentence. In those circumstances, I find it unnecessary for me to state any conclusion as to that application.

[1] I take the date on the bag containing the urine sample referred to by the analyst not to be the date on which the sample was provided but the date on which the bag was labelled by one Jones (MKJ).

[3] Re Anthony, above, at 446 per Herring, C.J., Sholl and Little, JJ.

[4] See R. v. He and Bun [2001] VSCA 58; (2001) 122 A.Crim.R. 487; R. v. Georgievski [2001] VSCA 65.

[5] The return of prisoners incorrectly recorded that Count 2 was a count of attempted rape. The Court requested counsel for the respondent to ensure that the record was corrected.

[6] It was not disputed before us that the jury would have been entitled to conclude that the description of "the Australian" fitted the applicant and the description of "the Greek" fitted Zoudi.

[7] Counsel said he was applying an approach consistent with that adopted by Deane, J. in Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79, at 97-98.

[9] [1997] 1 V.R. 593 (Winneke, P., Charles and Callaway, JJ.A.).

[19] Faure, at 502-504, per Hampel, J. (with whom Smith and J.D. Phillips, JJ. agreed), applying, in particular, Bromley v. The Queen [1986] HCA 49; (1986) 161 C.L.R. 315, at 319; Longman v. The Queen [1989] HCA 60; (1989) 168 C.L.R. 79, at 86.

[20] [2004] VSCA 73, at [55] (Batt, J.A and Harper, A.J.A. agreeing).

[24] Miletic, at 606; Bromley v. The Queen [1986] HCA 49; (1986) 161 C.L.R. 315, at 324-325; Carr v. The Queen [1988] HCA 47; (1988) 165 C.L.R. 314, at 330.

[26] As Gleeson, C.J. observed in Doggett v. The Queen (2001) 208 C.L.R. 343, at [2], in his dissenting judgment (but which observation was not inconsistent with the views expressed in the other judgments), the manner in which a trial is conducted, and the shaping of issues by experienced counsel, has a major influence on the way the case is left to the jury and on the directions, comments and warnings which may be required. Kirby, J., at [138], held that the overriding issue is whether there was a miscarriage of justice resulting in an unsafe conviction. In considering whether the "proviso" ought be applied the fact that counsel may have taken a forensic decision not to seek an appropriate Longman direction would be a relevant consideration, but the appellate court, having regard to the long judicial experience of the dangers to which the warning is directed, adopts a protective attitude towards the position of the accused (at [146]-[150]).

[27] R. v. GTN [2003] VSCA 38; (2003) 6 V.R. 150, at [125].

[31] Longman v. The Queen, [1989] HCA 60; (1989) 168 C.L.R. 79, at 98.

[34] The words in parenthesis constitute my interpretation of some words obviously incorrectly transcribed.

[36] In his evidence-in-chief Zoudi had clearly placed the applicant as seated on the same couch where he and the complainant were seated when the complainant told Zoudi to desist.

[37] [1954] AC 378 at 401-402.

[42] [2001] VSCA 65, at [18], (Tadgell and Buchanan, JJ.A. agreeing); see too R. v. McLachlan [1999] VSCA 127; [1999] 2 V.R. 553, at 562, where Callaway, J.A. (Phillips, C.J. and Buchanan, J.A. agreeing), citing Miletic, held that an accomplice warning must be given even if the witness does not attempt to shift blame or does not unduly inculpate the accused, the need for the direction being unrelated to the evidence the accomplice actually gives.

[43] [2001] VSCA 200; (2001) 124 A. Crim.R. 100, at 107-108 per Charles, J.A. (Buchanan and Chernov, JJ.A. agreeing).

[44] [1986] VicRp 25; [1986] V.R. 219 (Young, C.J., Kaye and Gray, JJ.).

[47] [1962] VicRp 63; [1962] V.R. 440 (Herring, C.J, Sholl and Little, JJ.).

[53] Unreported, Court of Appeal (Winneke, P., Brooking J.A., Southwell, A.J.A.) delivered 18 October 1996.

[59] See R. v. McLachlan, supra, at [34], where Callaway, J.A. observed that the unreliability against which the warning is directed is antecedent to the evidence the accomplice gives, and the need for the warning does not depend on what the witness actually says in evidence.

[60] Remarkably, in the exchange between defence counsel and the judge, at T200-206, the prosecutor was neither invited to give nor volunteered his opinion as to the course proposed. At the time of an earlier discussion, (T186) however, before the charge commenced, the prosecutor tentatively suggested that an accomplice direction was required.

[61] In R. v. Arundell [1998] VSCA 102; [1999] 2 V.R. 228 (at 241) Charles, J.A. and Callaway, J.A. (at 245-250) held that where at trial counsel expressly asked that a Longman warning not be given, but then on appeal complained as to its omission, the accused had exercised his right to a fair trial, and generally speaking had not been the victim of a miscarriage of justice.

[63] R. v. Konstandopolous [1998] 4 V.R. 381, at 392; R. v. Weiss [2004] VSCA 73, at [64].

[64] Krakouer v. The Queen [1998] HCA 43; (1998) 194 C.L.R. 202, at [23].

[65] See the discussions in Krakouer, at [24], FN (23), and in Weiss, at [27].

[66] Wilde v. The Queen [1988] HCA 6; (1988) 164 C.L.R. 365, at 373.

[67] Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, at 514.

[68] [2002] HCA 46; (2002) 212 C.L.R. 124, at [26]-[28], per Gleeson, C.J.

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