R v Munro [2005] VSCA 260

11 The applicant stands convicted of one count of rape (count 1) of a woman whom he knew as a friend and in whose house he stayed to sleep after a dinner party on the evening of Saturday 5 July 2003. He was tried for but acquitted of three other counts of rape of the same woman (counts 2, 3 and 4). He seeks leave to appeal against the conviction on count 1 on five grounds.

Ground 1

12 Ground 1 is that the verdict of the jury upon count 1 is unsafe and unsatisfactory because of inconsistencies in the complainant's evidence and because the verdict of guilty on count 1 is inconsistent with the verdicts of acquittal upon counts 2, 3 and 4. The applicant points to what he says are the following significant internal inconsistencies in the complainant's words and conduct:

1. At the trial the complainant said that she drank only five champagne punches during the course of the party, and she said that it had always been her recollection that she had only drunk five. Yet in her police statement, made on 9 July 2003, she stated that she was not sure how many drinks she had had - she could not remember - and she did not know whether she ever told a police officer she had had eight drinks. The jury was aware of the existence of a police officer's note recording the complainant's statement that she had had eight drinks and the complainant conceded that she had had sufficient to drink to lower her inhibitions.

2. At the trial the complainant admitted that, while she and the applicant and Mr Daud, who was a friend of the complainant and of the applicant, were sitting together downstairs after the party but before the offence occurred, the applicant was using the Foxtel remote control to flick through channels searching for coverage of the Tour de France. She said that at one point in that process the applicant came to a pornography channel and allowed the pornography to show for between 10 and 30 seconds before flicking off to the MTV channel. Contrastingly, at the committal hearing, the applicant had said that she did not watch any pornography or could not remember. Asked at the trial why there was nothing in her statement about pornography being displayed on the television set, she said it was because it was only flicked through for 10 to 30 seconds, like every other station that the applicant was going through with the remote control. Asked then when she had remembered that pornography was shown she said it was when she was reading her statement two days before the trial. She accepted that there was nothing in her statement about the matter, but she said that re-reading the statement made her relive the whole night again and the recollection of the applicant flicking through channels had come back to her as part of that process.

3. At the trial the complainant conceded that shortly before she had gone upstairs to bed, the applicant and Mr Daud had had a conversation concerning the applicant's sexual relationship with another woman, to which the complainant had listened but in which she had not participated, of about 10 minutes duration. At the committal, the complainant had said that there was no conversation of a sexual nature between her and the applicant before she went up to bed. Asked at trial how she explained the difference, she responded that she had been asked at the committal whether there was any sexual conversation between her and the applicant and she had answered correctly that there was not. Later however she conceded that she had participated to the extent of asking what the applicant's partner or girlfriend thought of the fact that the applicant was having sexual relations with the other woman. Asked why she had earlier denied being involved in the conversation, she said that she had answered as she did because she had assumed that the cross-examiner was leading into something else.

4. At the trial, the complainant said that as best she could recall there had been three separate incidents of her anus being penetrated by the applicant's penis. She stated that she would never have said that there were 12 penetrations because it was not 12 times. There was however evidence that she had told police within 24 hours of the offence that she had been penetrated 12 times and that the applicant had ejaculated five times. Contrastingly, at the committal she had said that her best recollection was that she had been anally penetrated five times. Pressed as to why there were differences in the various accounts she had given, she said that she could in fact remember four instances of anal penetration and that her inability to remember precisely was due to the fact that the experience had been all very traumatic.

5. At the committal, the complainant had said that there had been three anal penetrations on the bed prior to the alleged count 3 occurring. Asked whether that meant that in giving that evidence she had forgotten about the allegation that the applicant had penetrated her vagina with his fist, she replied that she probably had forgotten on that day, for reasons which she explained.

6. At trial, the complainant stated that there was no kissing at all during the sequence of penetrations and that she had never told a police officer that the applicant kissed her on the neck. There was evidence, however, that the complainant had told police that the applicant had kissed her on the neck and, when that was put to the complainant, she said that she could not remember the conversation.

13 The applicant also relies upon what he says are the following inconsistencies between the evidence given by the complainant and evidence given by other witnesses:

1. The complainant maintained at all times that she awoke to find herself fully anally penetrated (count 1). But Mr Daud, who was asleep in the adjoining bedroom at the time of the offence, gave evidence that a day or two after the offence, the complainant said to him:

"... that after she had gone to bed that Bruce [the applicant] had come into the bedroom and that he had come in naked and then slid in beside her and then started having sex with her. She said that she didn't want to and she said that she was calling out my name and did I hear her and I said, 'No, I didn't'".

And that she did not say that she had woken up having been fully penetrated with the applicant on top of her. When Mr Daud's version of the conversation was put to the complainant, she said there was absolutely no way she could tell anyone that she saw the applicant come in naked. She was then asked this question and gave the following answer:

" ... He [Daud] says that he had a conversation with you, and that that's the way that you describe the beginning of sexual activity to him. Although he can't remember the exact words, that's the impression that he got, and that you were not telling him that you woke up with Bruce Munro fully penetrating you, as you allege now. Now, what do you say about that evidence of Mr Daud? ---It's wrong."

The complainant agreed that Mr Daud was a good friend of hers and had no reason to lie, but that if he did say such a thing he was wrong.

2. The complainant called a taxi for the applicant when he left her home at about 7.00 a.m. on the morning of Sunday 6 July 2003. The complainant's version of events from that time was that she was so traumatised by the offence that she went to the dressing room (en-suite) in her bedroom until the telephone rang at about 11.00 a.m. She was then asked this question and gave the following answer:

"When did you actually remember that he [Mr Daud] was still there ? --- When the phone went off around 11 o' clock that morning when I was in the dressing room under my clothes and he came flying past saying, "Michelle, I'm late. I'm supposed to pick up the kids. I'm supposed to be there by 11 o'clock."

Asked why she had not woken Mr Daud before that, she said that she had forgotten completely about him. Later, she said that when the phone rang at 11.00 a.m., it jolted her from fright, but she did not answer it because she was still in the dressing room in shock. She said that she had then come out of the dressing room when Mr Daud ran past on his way out. She said that she did not then complain to Mr Daud because of the speed of his departure. Mr Daud's evidence was that he was woken by the telephone ringing at about 11.00 a.m. and that he stayed in the house for about another 10-15 minutes. He said that:

" ... I got up. I saw that [the complainant's] bedroom door was open and she was in bed. I made a comment about how early the first phone call had been and I then either asked [the complainant] the time or went down to the kitchen to find out the time. [The complainant] yelled out that she was going to have a shower. I saw that it was 11 a.m. I told my brother who was babysitting my children that I would be home at 11 a.m. [The complainant] was in the shower so I asked her son to tell her that I had to go and thank her for allowing me to stay. I then left."

The complainant denied that she was in bed when Mr Daud walked past. Asked whether she was suggesting that Mr Daud was lying, she answered, yes. Asked why he would, she said that he was "best friends" with the applicant.

3. Donna Edwards gave evidence that the complainant telephoned her that morning at about 10.00 a.m. Pressed as to the exact time, she said that she "thought it was around 10 o'clock". Asked what it was that made her think that to be so, she said "I can just remember looking at the clock, so it was around - I can't remember, it was 10 something but it wasn't 11 something. It was definitely 10 something". It was then put to her that the complainant had given evidence that up until about 11.00 a.m. she was under clothes in the dressing room and that the conversation had taken place after that. The witness responded:

"Look, I just can remember the time being - it was 10 something."

Asked then what the applicant had said about Mr Daud, Ms Edwards replied:

"We didn't - the main thing we discussed about Derry [Daud] was, I just said, 'Didn't Derry hear anything?'"

and she added that the complainant had told her that Mr Daud was asleep in the downstairs office and although her son was asleep upstairs she did not want to frighten him. In fact, however, it was common ground that Mr Daud had slept upstairs. Ms Edwards said that the complainant had told her that all penetrations were anal and that neither she nor the complainant could work out how the complainant had been fully penetrated on the first occasion without waking up. She also said that she had asked the complainant whether it was possible that the applicant had put something in the complainant's cup of coffee. At one point in cross examination, towards the end of the day and after sustained interrogation, the complainant could not remember the detail of the conversation or indeed even remember telephoning Ms Edwards. At another point in her evidence, however, the complainant said that she could recall that she had not spoken to her son until she had telephoned Edwards well after Mr Daud left the house.

14 The applicant relies as well upon what he contends are a number of apparent inconsistencies in the jury's process of reasoning:

1. The first as the applicant would have it is that, upon the complainant's account, the facts giving rise to count 2 (the insertion by the applicant of his hand into the complainant's vagina) occurred at the same time as the facts giving rise to count 1 (penile penetration of the complainant's anus), and yet the jury did not find the applicant guilty of count 2. The applicant submits that it follows from the acquittal on count 2 that the jury must have found the complainant's evidence as to count 2 lacked cogency and since the facts said to comprise count 2 were said to occur as the same time as the facts comprising count 1 the jury were bound to reject the complainant's testimony as to count 1 as also lacking cogency.

2. Secondly, the applicant submits that in as much as the jury acquitted the applicant of counts 3 and 4, thus indicating a failure to accept the complainant's evidence on those counts, it is only logical that the jury should also have rejected the complainant's testimony on count 1.

3. Thirdly, the applicant relies upon the fact that complainant's evidence was uncorroborated and submits that having regard to the internal inconsistencies and inconsistencies as between the complainant's evidence and the evidence of other witnesses, it is quite unsatisfactory that the jury should have convicted on the uncorroborated evidence of the complainant.

4. Fourthly, the applicant says that it is inherently improbable that the rape the subject of count 1 could have occurred in the circumstances alleged. The defence case at trial was that all penetrations took place after activity in the nature of foreplay and to which the complainant had consented and it was conceded that if the jury found that the complainant was asleep when penetration took place, the applicant was liable to be convicted. The applicant argues, however, that, having regard to the following considerations, it is inherently improbable that the complainant was penetrated while still asleep:

• The improbability of being fully penetrated whilst asleep was conceded by the complainant herself.

•

This topic of conversation between the complainant and Ms Edwards developed to the stage where it seemed the fact of full penetration while asleep could only be explained by a suggestion that the complainant had been drugged.

•

The improbability of the applicant taking the chance of raping the complainant when he knew that Mr Daud was asleep in one of the upstairs bedrooms and the improbability that the circumstances and manner of the applicant's departure the next morning would be as they were if he had just committed rape.

•

The fact, it is said, that the applicant did everything that an innocent man could have done in conducting himself during interview with police and in giving evidence on oath. He gave sworn evidence and said that the events of that night transpired in the way he had described them to police and it is said that cross-examination did not reflect adversely on his credit or his version of events as he said they transpired.

•

Finally, the applicant's previous good character.

5. Fifthly, the applicant submits that there is a high prospect that the verdict of guilty on count 1 represents a compromise verdict and in support of that contention the applicant points to the fact that the prosecution case was one which alleged a prolonged period of non-consensual sexual activity and that after the jury retired to consider their verdict at approximately 11.00 a.m. on Tuesday 8 February, 2005, on the morning of Friday 11 February, 2005 they returned unanimous verdicts of not guilty on counts 3 and 4 and then, after retiring further to consider their verdict, at around 4.00 p.m. that day, they returned verdicts of guilty by majority count 1 and not guilty by majority count 2. This it is said smacks of compromise and convenience, particularly following a majority direction given by the judge which it is contended did not emphasise, either sufficiently or at all, the necessity of not compromising honestly held views. In the applicant's submission when one bears in mind that the trial was one of "oath against oath", it cannot be that the verdicts on the several counts were reached by any logical process of reasoning. In particular, it is said, there is no rational explanation as to why the jury returned a unanimous verdict of not guilty on counts 3 and 4 and not guilty by majority on count 2, or as to why the jury returned a verdict of guilty on count 1 by majority but not guilty by majority on count 2. It is further contended that although this was what might be described as an "impact" trial, the fact is that the jury deliberated for nearly four days. In the result, the verdicts are unlikely to be based to any significant degree on the jury's perception of the demeanour and presentation of witnesses, but more probably on some form of analysis and investigation of the evidence. There is, however, nothing in the evidence, it is said, which would lead to an acceptance of the complainant's version to the exclusion beyond reasonable doubt of events as the applicant described, and it is evident that there was confusion. The jury asked questions which demonstrated reasoning based on issues of mens rea and intoxication which neither the Crown nor the defence had mentioned.

15 I propose to deal with these points in turn.

Internal inconsistencies.

16 I do not consider that there is a great deal of significance in the suggested internal inconsistencies as to the amount which the complainant had to drink or whether and for how long pornography may have been showing on the Foxtel channel or if there were a conversation of a sexual nature to which the complainant was party. In any event the alcohol served was not champagne but champagne laced punch. There was some confusion as to the number of "champagne" or "punch" glasses drunk. Those are all matters which went to credit and upon which the jury were adequately directed. The judge gave detailed directions on prior inconsistent statements and the manner in which they may be used and specifically referred to most of the internal inconsistencies in the complainant's testimony on which the applicant now relies. It was up to the jury to decide what they would make of that and in my judgment there is certainly nothing about them which required the jury in effect to reject the complainant's testimony on critical issues.

17 The inconsistencies as to the number of times on which the complainant was anally penetrated are to my way of thinking also of limited significance. Whether it was three times, or four times or five times is in the end not really to the point. It was admitted that the applicant penetrated the complainant's anus more than once. The issue was consent and, apart from general credit, which was within the capacity of the jury to assess, the fact that the complainant could not recollect the exact number of penetrations did not say much as to whether she had consented to those which were admitted.

18 I accept that the issue of whether there was kissing in the course of the penetrations was more significant. It went to the question of consent. But the fact that shortly after the event the complainant may have recalled and told police that the applicant kissed her on the neck as he penetrated her from behind, and that thereafter she failed to recall that detail, is in my view neither very surprising nor especially significant. From what the complainant is said to have told police, it is plain that she was at all times vehemently opposed to the applicant's conduct and made it clear to him that it was so. There was nothing in it to suggest or from which it could be inferred that she had sought or consented to being kissed on the neck. According to the complainant's statements to the police, the applicant's conduct was unsolicited and unwelcome.

19 Nor do I think that there is much in the points made about the complainant's testimony that she awoke to find that she had been fully penetrated. It is not inconsistent with the fact that she awoke to find that she had been penetrated that she was later to wonder how it could have happened. Who would not? And in any event, her evidence was that she was awoken by sharp pain in her anus. To say that she remained asleep while being fully penetrated is upon one possible view of the matter to say no more than that she was asleep until there was sufficient penetration to cause pain.

20 It may be that the complainant's behaviour at the time of the applicant's departure the next morning appears inconsistent with the behaviour of a woman who has just been raped. But it does not strike me as such. She gave her reasons for acting as she did. She was, as she put it, in shock and to some extent in fear for herself and her child. She wanted the applicant out of the house. She did what she could to speed the process. Common sense and everyday human experience are enough to know that some people react slowly to traumatising events. Given that and the added reasons of which the complainant spoke, I do not find it surprising that she behaved as she did. At the least, it was open to the jury to accept her evidence on the point, and they did.

Inconsistencies with other witnesses.

21 I am not much more impressed by the alleged inconsistencies between the complainant's evidence and the evidence of other witnesses. So far as Mr Daud is concerned, there was considerable room for imprecision of observation on his part at the time of leaving - he was in a hurry to get to his children - and considerable scope for imprecision in the complainant's recollection of the details of his departure; especially given the traumatic condition to which she deposed. Put both together and they were likely to add up to versions of events which were different in some respects. But I do not think that they were different to any degree that counts. Understandably, it was sought to get out of Mr Daud's evidence that the complainant was sufficiently relaxed about what had happened the previous evening to be lounging insouciantly in bed at 11.00 a.m. the next morning. But even if he were completely accurate in his observation, and it is to be noted that he accepted that all he saw was a lump in the bed, not the complainant, his evidence is still not inconsistent with the complainant being in a traumatised condition. The point about whether the complainant said that the applicant came into the room undressed and slid into bed is more significant. But although Mr Daud said that he did not remember, he did not deny that the complainant may have told him that she woke to find that she had been fully penetrated.

22 As far as Donna Edwards is concerned, I have set out enough of her evidence above for it to be seen that she was far from clear that her conversation with the complainant was at 11.00 a.m. Taking an average of the several versions which she gave, she put it at "10.00 something". I accept that it is surprising that the complainant should have said that Mr Daud was asleep downstairs, rather than upstairs as was the fact. It seems to me, however, that the apparent inconsistency is capable of explanation on a number of bases; not the least of which is that on a reading of Ms Edwards' evidence as a whole there are strong indications that what she reported as being the contents of the conversation was as much a synthesis of imperfect recollection and her own estimation of what was likely to have occurred (based in part on what she had known of the layout of the house and the plan for guests staying over to sleep downstairs), as it was evidence of what the complainant had said. Again, however, it was a matter for the jury.

Inconsistencies in reasoning.

23 Turning then to the alleged inconsistency between the finding of guilt on count 1 and the verdict of not guilty on count 2, I do not accept that the two are incompatible.

24 To begin with, the applicant's submission as to inconsistency rests upon the false premise that the act which comprised count 2 occurred at the same time as that which comprised count 1. The facts as alleged and of which the complainant gave evidence were that she awoke to find that she had been fully penetrated from behind and after she awoke the applicant ejaculated in her anus. It was only after that occurred, she said, that he interrogated her as to whether she had a vibrator, and after that, when she said that she did not, that he showed her his hand and said: "I want to put this up your cunt". Only then did he put what appeared to her to be his hand into her vagina.

25 In the second place, the judge directed the jury that they could not convict on count 2 unless they were satisfied that the applicant had put his hand into the complainant's vagina and that, in the way in which the Crown case had been run, it would not be enough if they were satisfied that only one or two fingers had been inserted. But in her evidence the complainant was less than certain as to how much of the applicant's hand had been inserted. Pressed on the point she could only say that it felt as though the whole of his hand had been inserted. The medical evidence also suggested or at least was not inconsistent with something less than the whole hand having been inserted. The complainant was medically examined in the days after the offence and while one doctor saw significant bruising at the anus there was only minimal bruising at the vagina; the other observed a slight tear at the vagina. On that basis the jury may well have been persuaded that the applicant put some part of his hand into the complainant's vagina while he still had his penis in her anus, but was not persuaded that he put the whole of his hand into her vagina. There is no inconsistency in that.

26 In the third place, it is possible that the jury found that the Crown had proved lack of consent in relation to count 1 but failed to prove it in relation to count 2. The judge directed the jury, correctly,[4] that a person does not freely agree to an act if the person is asleep. It followed, as the judge told the jury, that if they also found in relation to count 1 that the applicant had penetrated the complainant while she was asleep, it was open to them to convict on count 1[5]. On count 2, however, there was no suggestion that the complainant was asleep. It will be recalled that she awoke to sharp pain in her anus before the applicant was said to have put his hand into her vagina. The question therefore was whether she had manifested her consent or whether the applicant believed that she was consenting to his putting his hand into her. As the judge put it:

"In determining whether the accused believed she was consenting, you must take into account whether that belief was reasonable in all the circumstances. This is one of many guides which you may consider in determining the fundamental question: what was the state of mind of the accused at the time of the act of penetration? Did he intend to commit the crime of rape in the sense that at the time of the penetration he knew that the other person was not consenting, or being aware that this person might not be consenting, persisted in the penetration regardless of whether that person consented or not. So the Crown have to prove, if you like, beyond reasonable doubt that element, that he knew she was not consenting, was aware that she was not consenting or that she might not be consenting and went ahead anyway.

Bear in mind what I have told you before in so far as records of interview are concerned, and I will say this a number of times, there is no onus of proof on an accused person, you understand that.

...

What is in dispute here is this: the complainant describes four incidents to you, and describes them as independent incidents, independent, separate penetrations. The Crown say that each of those independent penetrations ... were done without her consent, and he either knew it or was aware that she might not be consenting. The Crown say he knew it, and say, look, fall back on the second one if you need to.

The defence say - and you have got the record of interview... yes, there was anal penetration, there was vaginal penetration, but it was all with consent. The defence say - you have listened to the interview, [and] what he has said in the courtroom here, [and] you could not be satisfied beyond reasonable doubt that he...knew or thought she might not have been [consenting], and that is the area of dispute."[6]

27 Among a number of matters dealt with in the applicant's record of interview was the possibility that he may have misinterpreted the complainant's moans as consent:

"Q 414. She [alleges] then using all her strength to get away, but it seemed the more she struggled, the more you seemed to get turned on. --- Okay. Well I don't recall her trying to get away, I don't recall her struggling and I don't recall her telling me not to do anything, so - - -

Q 415. Could you have mistaken her struggling for actually enjoying what was happening? --- Yes, I guess. That's certainly something that's - could be mistaken and - and from hearing this - - -

Q 416. So it is possible that she was struggling? From hearing this, I guess that there's a possibility, but there was ne- - - -

Q 417. So there is a possibility she was trying to get away? --- Yeah. There's a - there's a possibility that I may have mistaken that she was trying to get way, but that - - - "

28 Having regard to that material, I think it is possible that the jury were not satisfied beyond reasonable doubt that the applicant had not mistaken the complainant's struggling for consent and therefore believed that she was consenting to the conduct which comprised counts 2, 3 and 4. There is no inconsistency in that.

29 Finally, it is possible that the jury reasoned in the way that the judge suggested in his Honour's sentencing remarks, which is to say that because of the complainant's prior inconsistent statements as to the number of times she was penetrated, the jury considered that her allegations in relation to the second and subsequent penetration could not be accepted beyond reasonable doubt.

Complainant's evidence and corroboration

30 I have dealt already with the complainant's evidence, and clearly enough there was no corroboration of her evidence. It was a case of oath against oath. But the jury were made to understand the consequences of that being so. The judge told them it was a matter of oath against oath and that they had to be satisfied beyond reasonable doubt before they could convict.

Compromise verdict

31 I do not accept that the guilty verdict on count 1 should be seen as a compromise verdict. It is natural that the jury should have considered counts 3 and 4 together and counts 1 and 2 as a separate group. The act said to comprise count 2 was committed in close conjunction with count 1, whereas on the evidence there was a break in time and some activity between those two counts and the acts said to comprise counts 3 and 4, and the jury could have acquitted on counts 3 and 4 on any of the bases already discussed. In turn count 2 stands on a different footing from count 1, because the complainant was awake during the act alleged to constitute count 2 and on her account was asleep at the time of commencement of the penetration which comprised count 1. There is also the question to which I have already referred of whether the evidence was sufficient to establish the use of the whole of the applicant's hand for the purposes of count 2. I do not see anything illogical or particularly surprising about the decision of the jury to acquit on that count while convicting on count 1.

32 In M v The Queen[7], the majority of the High Court held that where a court of criminal appeal is asked to conclude that a verdict is unsafe or unsatisfactory the court must ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The test may also be posed in terms of whether the jury must have had a reasonable doubt as to the guilt of the accused[8] or of whether the jury were bound to have a reasonable doubt as to the guilt of the accused.[9] According to that test the function of this court is to determine whether the jury, acting reasonably and appreciating the burden and standard of proof could have convicted the applicant on count 1 on the evidence available to support their conviction.[10]

33 Despite the applicant's arguments, and for the reasons which I have given, I do not doubt that they could and did. In my view ground 1 fails.

Ground 2

34 Under cover of ground 2 the applicant contends that the judge erred in failing to give the jury adequate directions concerning the use to be made of evidence of complaint. It is said that the directions were deficient in failing to point out to the jury that evidence of complaint could not be used as evidence of the truth of the complaint, but only to test consistency in the complainant's evidence and, in so far as delay in complaint was mentioned, in that the judge did not explain to the jury how they might use the fact of delay in assessing the complainant's credibility.

35 As the contention was first advanced it was said that the evidence of complaint to which it was directed included the complainant's testimony that she complained to Ms Edwards in the telephone conversation at about 11.00 a.m. on the morning after the rape; Ms Edwards evidence of receiving and of the contents of the complaint; Mr Daud's evidence as to the fact and content of a telephone conversation which he had with the complainant after the complainant's telephone conversation with Ms Edwards; and evidence that the applicant consulted a doctor, Dr Nicholson, on the day after the offence and later reported the matter to the police and was examined by a police physician, Dr Quake.

36 As the argument developed, however, the submission was confined to the judge's directions concerning the complainant's conversations with Ms Edwards and Mr Daud and the complainant's statements to the police. That more limited argument recognises the reality that the Crown called Dr Nicholson to prove only that he had examined the complainant and to testify as to the results of his examination (and that the prosecutor did not ask the witness any questions about complaint) and, similarly, that the Crown called Dr Quake to prove only that she had examined the complainant and to testify as to the results of the examination (and that the prosecutor did not ask the witness any questions about complaint). Defence counsel did ask Dr Nicholson whether the complainant had told him she had been anally raped, and the witness answered that she did, but evidently the only purpose of those questions was to establish that the complainant had not complained that she had been penetrated vaginally or that a fist had been introduced into her vagina. Defence counsel did not ask Dr Quake any questions about complaint. In the result, the only significance of Dr Nicholson's and Dr Quake's testimony was as expert evidence and the judge gave directions on the use of expert evidence which have not been questioned.

37 Under the common law rules of evidence which apply in this state, evidence of complaint in a sexual case is as such not evidence of the truth of the complaint but goes only to the credibility of the complainant.[11] Accordingly, where evidence is admitted as evidence of complaint as such the judge must instruct the jury that they may not treat the complaint as evidence of the facts but as going only to credit.[12] The requirement to give that sort of direction reflects the general rule that, where evidence is admissible for one purpose but is inadmissible for another, a trial judge must direct the jury that they are not to use the evidence for the purpose for which it is inadmissible if the use of the evidence for that purpose would be adverse to the accused.[13] In the words of Gaudron, J. in BRS, a direction of that kind must be given whenever necessary to avoid a perceptible risk of injustice.[14]

38 Here, the only direction which the judge gave on the subject of complaint was as follows:

"During the course of the trial there was quite a bit of cross-examination and comment made about complaint. The evidence is before you as to the circumstances that are alleged by the Crown that occurred that day. A delay in making a complaint may give rise to problems of reliability of the complaint that is being made. That's a matter of commonsense and it's a matter of law.

However, in considering that you should also - and this is a direction of law as well, as well as I just said - bear in mind that there may be good reasons why a complaint is delayed. In this particular situation it would be a matter for you whether you consider it as having been delayed. You have heard the evidence about [Daud] was there, and you have heard the explanations given as to why that scenario occurred.

You have heard that evidence. I don't need to go into any detail, but I simply repeat what I've said, that a delay, if you think it is a delay in complaint may give rise to questions of the reliability of the complaint that is being made, but you should also bear in mind that good reasons can be as to why that actual delay, if you find it was one, has occurred."

That covers the consequences which may have been attributed to delay in complaint, but plainly there is no mention in it of the limited purpose for which evidence of complaint as such is received.

39 The applicant submits that the need to refer to the limited purpose of complaint evidence was critical, and he relies on the decisions of this court in R v Omarjee[15] and R v Miletic[16] as establishing that failure properly to direct upon complaint evidence results in a miscarriage of justice. In case it matters, I doubt that those cases go so far. In Omarjee the court held that a trial judge should as a general rule give a direction in accordance with Kilby[17] that a failure to complain should be taken into consideration by the jury when they are considering whether they accept the complainant's evidence. It was found that the directions given were inadequate because they made no reference to the dangers of convicting upon the evidence of the complainant alone and because they did not deal with the effect of the delay in complaint upon the credit of the complainant. The conclusion, which was said to have been reached "with considerable hesitation", was that the interests of justice demanded that a new trial be had. With respect, that does not appear to me to have a great deal to do with the facts or circumstances of this case. In Miletic the court held that when a trial judge directs a jury in accordance with s.61(1)(b) of the Crimes Act 1958 the judge should also comment in accordance with s. 61(2) that such delay was a fact that the jury could take into account in evaluating the complainant's testimony and in determining whether to believe the complainant. It was said that the trial judge's failure to do so in that case resulted in the direction being unbalanced, causing a miscarriage of justice and calling for a new trial to be had. That too does not seem to have a great deal to do with the facts or circumstances of this case.

40 If the evidence of what the complainant said to Ms Edwards and Mr Daud had been received solely as evidence of complaint, the failure of the judge to direct the jury on the limited purpose for which complaint evidence may be used would probably have meant that that the application for leave to appeal would need to be allowed and the appeal determined in the applicant's favour. Other things being equal, it would be difficult to exclude the reasonable possibility that the jury improperly used the evidence of complaint as evidence of the facts the subject of complaint.[18] But as I see it that was not this case. The evidence was not received solely as evidence of complaint, or even principally for that purpose. It was received in effect on defence counsel's application, and certainly with defence counsel's consent, as evidence of the complainant's prior inconsistent statements. That came about as follows:

1. At the outset of the trial, before the jury were empanelled, defence counsel took objection in advance to Ms Edwards being called to give evidence of the contents of a telephone conversation which she had had with the complainant some time between about 10.00 a.m. and 11.00 a.m. on the morning after the offence. Defence counsel submitted that it was apparent that conversation had not occurred until after the first reasonable opportunity to complain and was therefore not admissible as evidence of recent complaint.[19] But he also told the judge that he accepted that it would be difficult to conduct the trial on the basis of leaving the jury "up in the air" as to whether there had been any complaint, and that he was agreeable to the Crown leading evidence of the fact that the complaint had been made to Ms Edwards. His concern was that there should be no evidence given of the detail of the conversation.

2. After hearing the prosecutor, the judge ruled that he would not allow evidence of the conversation to be given as evidence of recent complaint and that he would adopt the course suggested by defence counsel of allowing the Crown to call Ms Edwards to prove that the complainant had complained to her that she had been raped, but no more.[20] His Honour also said, however, that the position could alter depending upon cross-examination of the complainant, for it may be that evidence of the detail of the conversation would become admissible as or as in the nature of evidence to rebut a suggestion of recent invention.

3. The following day, during cross-examination of the complainant, defence counsel put to the complainant that she had not said anything to Mr Daud about waking up to find the applicant on top of her and made no complaint to him about being asleep when the applicant had entered the room.

4. At the conclusion of that day, after the jury had retired, the judge put to defence counsel that he had in effect suggested to the complainant that she had not complained to Mr Daud, and when counsel agreed, the judge said that he considered in those circumstances what the complainant had said to Ms Edwards would be relevant. Counsel responded that it had been his intention to put to the complainant what Daud had said, and that he was going to ask Ms Edwards some questions about what the complainant had said to her in any event, and that:

... "I would have thought that would have gone in because if I'd broached that sort of detail with Donna Edwards I would have though it had gone in anyway."

5. The judge asked why if that were so it should not lead to a reversal of his Honour's previous ruling, and thus why evidence of the conversations with Mr Daud and Ms Edwards should not now be admissible, to which defence counsel then responded that:

"I always thought it was going to be anyway".

6. The judge, seemingly concerned to ensure that defence should be under no illusions about the consequences of adopting that course, emphasised that his Honour's view was that once the detail of the complaint were let in it could be used by the Crown as to consistency. And to that defence counsel responded:

"Well, look, whether there is consistency or inconsistency is always a matter for the jury and that's the ultimate classic jury question whether they believe a witness ... "

7. The course thus having been set, in the following days of the trial defence counsel put to the complainant in extenso large sections of the depositions of Ms Edwards and Mr Daud as in effect the evidence likely to be given by Mr Daud and Ms Edwards of prior inconsistent statements made by the complainant to those persons, and later still in the trial both witnesses were called by the Crown and cross-examined.

8. The position with respect to the complainant's complaints to the police is even clearer. During the first day of cross-examination of the complainant defence counsel tendered police notes for the specific purpose of demonstrating that there were inconsistencies as between the version of events the complainant had given to the police upon first report and the version of events given in her evidence. At that point the judge took the opportunity to explain to the jury in running but at some length that a prior inconsistent statement goes only to credit unless the witness adopts it as true.

9. In the result, the evidence of what the complainant said to Mr Daud and Ms Edwards and to the police was throughout the trial presented by defence counsel to the jury as evidence of prior inconsistent statements that had the effect of depriving the complainant's testimony of credibility and establishing that the facts were as the accused contended.

10. The exercise culminated in defence counsel's final address to the jury which was largely devoted to the propositions that what the complainant had told Mr Daud and Ms Edwards was evidence of the facts and was thoroughly inconsistent with the complainant's allegations in the witness box and completely consistent with the applicant's evidence. Thus as defence counsel put the effect of Mr Daud's and Ms Edwards' evidence to the jury, it was that:

"... here in this trial, you have evidence from other people, and I suggest to you clearly witnesses of truth and witness who have no axe to grind and witness who you would not expect to be taking particular positions, which describe things that she said and did that are clearly, clearly and unequivocally inconsistent with the allegations that she makes here today.

"But in assessing that evidence [scil. the complainant's evidence on Count 1 that she had been anally penetrated when asleep], in assessing that allegation, look at the inherent plausibility or implausibility of it. Because you have clear evidence here from other people, Donna Edwards in particular, and I will come to that in more detail later on, that when her friend Donna Edwards spoke to her about these allegations neither of them could believe that this could happen ... both of them indicating to each other ' How could that have happened, how could I have been fully anally penetrated without waking?' And I mean, it is, even the complainant herself has told Donna Edwards that she can't believe it happened. Can't believe it happened...

Well, look it's a matter for you, but it's a big call, isn't it, that when the complainant herself can't believe that it happened in the way that it's now alleged, for the Crown to say to you, 'Well you, you should be satisfied beyond reasonable doubt that it did.'...

... She herself told Derry [Daud] that what the accused man says happened is precisely what happened. Derry [Daud] came and gave evidence before you, the prosecution witness, he says, 'Look, I spoke to [the complainant] on the Sunday', I think he said, I mean, these event occurred on the Sunday morning, early hours Sunday morning, Daud says that [the complainant] rang him, I think it was Sunday evening, and that she told him, this is the evidence, she told Derry Daud that she saw the accused man come into her bedroom naked, and that he slid into bed beside her and then sex occurred.

That's what [Daud] says [the complainant] told him ... here is a version that she has given to Derry [Daud] which he says, '[t]his is what she told me, 'came into my bedroom naked, slid into bed beside me and then sex took place' She couldn't say that, you can't say that consistent with the allegation that she awoke to find herself fully penetrated ...

She in fact on the evidence before you gives an account which is perfectly consistent with the accused man's version and inconsistent with the allegations made against him here today. Well how do you get over that ?

I suggest you can't. That in itself has to raise a reasonable doubt in your mind. Indeed, unless you can say to yourselves that, look, she never said that at all, how are you going to find the accused man guilty in terms of the allegation that the Crown say to you that they have satisfied you beyond reasonable doubt that she was asleep when she was fully penetrated, when she herself, it would appear, has told [Daud] that she saw [the applicant] come into the room naked and that he slid into the bed before any sexual activity took place.

Just on that point alone, I suggest to you, you should have no difficulty at all in finding the accused man not guilty on [Count 1].

... I asked him, 'Well, look, did she give you a version as she is alleging now that she had been fully penetrated whilst asleep?' And he said, 'no, she never said that to me at all.'

So that's Mr [Daud's] evidence. I mean, how, how does that compare with [the complainant's] evidence? It supports the accused man entirely. That's what [the complainant] told him. And yet the Crown say to you, 'Well, no, no, you accept her as a witness who has been consistent of account and consistent of conduct'.

... you recall the evidence of Donna Edwards, Donna Edwards says that she spoke to [the complainant] on that Sunday, on that Sunday. She said that, '[the complainant] rang me and it was around about 10 o'clock and it was certainly well before 11 o'clock'... She says that '[the complainant] rang me around about 10 o'clock on that Sunday', that she was lucid and coherent. She said there was no humming and ha'ing, not consistent with cowering in her dressing room, you know, having cold showers or whatever, she said, no, she was not humming and ha'ing, and she described in some detail to me what she had alleged had happened after everybody left.

That's Donna Edwards's evidence. And Donna Edwards says that ... [the complainant] told her that all the penetrations that she alleged had been committed on her by Bruce Munro, all the penetrations were anal, anal penetrations. There was no other penetration. That's what [the complainant] said to Donna Edwards. And yet, the Crown, the prosecution, say to you, I don't know how they do it, but they say you should now be satisfied beyond reasonable doubt of Count 2, that this man had inserted his fist into her vagina ... I suggest to you, on Donna Edwards' evidence, indicated that there was no vaginal penetration.

Well, how do you get around that one? The Crown say to you, 'Well, you should be satisfied beyond reasonable doubt that there was' and yet you know, on that version that Donna Edwards gives, she says, Donna Edwards says that, '[the complainant] told me that all the penetrations were anal'.

Look, if you had been raped, I can understand that, you know, that could happen. But how do you reconcile that with Donna Edwards' evidence? ... according to Donna Edwards, she, Donna Edwards, has already had a conversation with [the complainant], has already had a conversation with [the complainant] where she was lucid, coherent and gave her an account saying to her that all the penetrations that took place were anal penetrations, 'But, you know, we couldn't believe how the first one even happened', you know, that's the evidence that's before you and, on that evidence, the Crown say to you that you should ... accept [the complainant] as a witness of truth who has given consistent versions and behaved in a consistent way.

Because you see, not only is there that evidence from Donna Edwards, which totally destroys [the complainant's] allegation of cowering under the bedclothes, totally destroys it, there is also the evidence of Derry [Daud] on this.

... I am suggesting to you that [the complainant] is just all over the shop. All over the shop. Not only all over the shop but giving versions that are completely different, you know, for instance, to Donna Edwards only three anal penetrations, now it becomes now it becomes three, plus vaginal penetrations. To the police it was about twelve. She herself can't explain these sorts of inconsistencies..."

41 Since the evidence was received and treated as evidence of prior inconsistent statements, the judge was bound to give directions to the jury that it was to be used in that fashion. Consistently, however, with that obligation the judge gave the following detailed directions on prior inconsistent statements:[21]

"In the course of giving evidence a witness may sometimes be asked about a previous statement allegedly made by him or her about some fact or facts concerned in the case. If the witness says that the previous statement attributed to him is true, then of course the things which the witness says are true because part of his or her evidence in this court, to be evaluated by you in the same way as any other evidence. If the witness denies making the previous statement attribute to him, the statement or its contents do not become his evidence in this court, nor indeed evidence at all.

If you were satisfied that the witness had made the previous statement, and is untruthfully denying having done so, you may use the facts about his making a previous statement when forming your opinion as to the truthfulness and reliability of the witness. That is, as relevant to his credit. You could use your satisfaction that the witness is untruthfully denying having made the previous statement as a good reason for not believing that witness, or being careful about believing that witness ...

There has been quite a number of what purport to be, or are said to be, prior inconsistent statements in this particular trial. I am not going to go through each and every one I can find and try and take you through them all ...

... But you have heard counsel address on questions of consistency and inconsistency. They are the principle that relate to what are known as previous or prior inconsistent statements..."

42 Furthermore, although the judge did not refer to Mr Daud's evidence or Ms Edwards' evidence as such, the jury cannot have been in any doubt that that is what the direction was about.[22] The concentration throughout the trial on Mr Daud's and Ms Edwards' evidence as evidence of prior inconsistent statements made that virtually inevitable and, in any event, apart from the police notes and the doctors' testimony, there was no other evidence of prior inconsistent statements. The jury were therefore made to understand that, insofar as Mr Daud's and Ms Edwards' evidence was of what the complainant had said to them, it was only evidence of the facts to the extent that the complainant adopted it as true, and otherwise went only to credit. [23]

43 Of course, if the judge had directed that the evidence of Mr Daud and Ms Ewards could only be used as evidence of complaint, the jury would have had to treat all of it as going only to credit. As events have turned out, that may have made a difference. But the fact that the jury were told to use the evidence as evidence of prior inconsistent statements and not just as evidence of complaint is something which was neither necessarily detrimental to the applicant nor about which he may now be heard to complain. It was the consequence of defence counsel electing to use the statements to Mr Daud and Ms Edwards and the police and the doctors as evidence of prior inconsistent statements. As has been seen, defence counsel made plain that he wanted to have the evidence treated as evidence of prior inconsistent statements. In those circumstances, the applicant was entitled to have such forensic advantage as it was thought that that course might yield him. It would have been appealable error for the judge to direct the jury that the evidence could only be used as evidence of complaint. That remains so despite that defence counsel's choice did not yield the applicant the acquittal on count 1 which presumably he hoped that it would.[24]

44 The decision of the majority of the High Court in Suresh v The Queen[25], makes the point clearly. In that case the accused was convicted of a number of sexual offences after a trial in which evidence was given by some of the complainant's school friends of what she had told them of the offences. On appeal to the Court of Criminal Appeal, the convictions were set aside on the basis that the complainant's statements to her school friends occurred too long after the offences to constitute evidence of recent complaint and was therefore inadmissible. On appeal to the High Court the majority allowed the appeal and restored the convictions on the basis that the evidence had been admitted without objection and relied on by the defence as a prior inconsistent statement. Their Honours held that the evidence had either been admissible as evidence of a prior inconsistent statement, and consequently that there was no wrong decision on a question of law or, alternatively if the evidence had not been admissible, in light of the defence case it could not be said that receipt of the evidence deprived the accused of a chance of acquittal that was fairly open. As McHugh, J. put it:

"22. Having regard to the way in which the case was conducted, it is impossible to conclude that the admission of the complaint evidence constituted a miscarriage of justice. The evidence was admitted without objection because it was perceived to be highly supportive of the defence theory of the case. Other counsel may have elected to fight the case on a different basis from that selected by the appellant's counsel, but no one could reasonably say that a competent counsel would not have run the case in the way that defence counsel ran it at the trial.

23. The appellant wanted the evidence of the complaint to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the complainant's statement to her school friends therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal."[26]

45 This case is different to Suresh in the sense that there is here no question about admissibility. But in point of principle it is the same. By electing to use the evidence of Mr Daud and Ms Edwards (and of the police and the doctors) to support the defence theory of the case, the applicant exercised his right to a fair trial. Through his counsel he achieved the receipt of that evidence as evidence of prior inconsistent statements, and directions to the jury that they might use it as evidence of fact to the extent that it was adopted by the complainant and otherwise as going to credit. The strategy having now failed to bring about the acquittal which it was designed to achieve, the applicant seeks to have a "second go" and thus to say in effect that the evidence should not have been received as evidence of prior inconsistent statements (with directions appropriate to its use as such) but only as evidence of complaint (with directions that the jury could use it only as evidence of complaint and thus as going only to credit). But just as in Suresh, so too here, it would undermine the system of adversarial criminal justice if the admission of evidence on a particular basis for rational forensic reasons could result in the quashing of a conviction when the forensic tactic fails to bring about the acquittal that was sought to be achieved.

46 In the result, I reject ground 2. In my view there was no error of law and, if there were, it cannot be said that the applicant was deprived of a chance of acquittal that was fairly open to him.

Ground 3

47 By ground 3 the applicant contends that the judge erred in giving the jury directions as to the use which was to be made of evidence of the complainant's distressed condition. The directions were as follows:

"The next matter is this. There's been in the addresses of both counsel reference to [the complainant] being distressed when she's talking to the police. Be very, very careful of distress. If you have a scenario or a situation where a crime is being alleged, an attack or assault or whatever it may be, and the alleged victim is seen 30 seconds later in a very distressed condition, that may be very powerful evidence that the attack that's been alleged occurred.

Once you start to get outside that proximate timeframe it's a situation where you have to be careful. Of course they are matters that you take into account in terms of what was occurring when she spoke to the police or what occurred in the court room. They are all obviously matters that you in your deliberations take into account, but bear the example I've given in mind, that it would be dangerous, other than in perhaps showing consistency with what is being done at a given time, it will be dangerous to use evidence of distress that long after the event as any powerful or strong piece of probative evidence.

Do you understand why I am saying that to you? It can be a little misleading. It's clearly relevant, and both sides have referred to it, but it is not the same as immediate distress as can occur in some situations, and it's not said to have occurred here other than - sorry, when I say 'distressed', that's evidence of distress by other people, that's visual observations of it, not what the person themselves might say. That's a matter for you entirely how you interpret those matters."

48 Counsel for the applicant submits that the directions were erroneous, first, because the distressed condition of a complainant in a sex case is not admissible to show consistency with the complainant's testimony but rather as being capable of providing support for the complainant which, when taken in conjunction with the surrounding circumstances, makes it more probable that the sexual acts complained of were non-consensual;[27] and, secondly, because whether evidence does in fact support the evidence of the complainant is a matter for the jury[28] and sometimes carries very little weight.[29] Counsel further contends that the judge's directions were at fault, in referring to consistency, and not helpful, because the jury were told that the evidence was "clearly relevant". The argument is that if the jury been properly directed they might have found that the evidence, not being of immediate distress, was of little weight and therefore not capable of providing support for the complainant's evidence of non-consent. I do not accept the argument.

49 In R v Flannery[30] it was held that in determining whether evidence of the distressed condition of a complainant is capable of amounting to corroboration, regard must be had to such facts as the age of the complainant, the time interval between the alleged assault and when she was observed in the distressed condition. If, having regard to such factors, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. Except in special circumstances, however, evidence of distressed condition will carry little weight and the court said that juries should be so warned by the trial judge in the course of the judge's charge.

50 In my judgment the judge's charge in this case accords with those requirements. Contrary to the applicant's submission, the judge did not say that the evidence of distress was admissible to show consistency with the complaint's testimony. As may seen from the passage of the charge which I have set out above, his Honour said that it would be dangerous to use evidence of distress long after the time of the offence other than as showing consistency with what was being done at the given time, which is to say at the time of the manifestation of that distress. That accords more or less precisely with the direction recommended in Flannery. Contrary also to the applicant's submission, the judge told the jury in express terms that it was a matter for them whether the evidence of complaint had that effect. In effect the judge discounted the value of the evidence of distress almost to nil by telling the jury that because the distress was not manifest until some time after the offence it was evidence only of the complainant's mental state at that later time. I think that ground 3 fails.

Ground 4

51 Ground 4 was abandoned.

Ground 5

52 Ground 5 is directed to the directions which the judge gave on the standard of proof. After explaining to the jury that the Crown bore the burden of proof and that the standard of proof was beyond reasonable doubt, and pointing out to the jury that the case was in effect one of oath against oath, the judge continued, as follows:

"I remind you of the difficulty in such circumstances [scil. oath against oath] at arriving at a conclusion of guilty beyond reasonable doubt. You will recall my direction of law, that the Crown must prove its case beyond reasonable doubt if you are to return a verdict of guilty, and that the accused man does not have to disprove the allegations made against him.

If you accept the evidence of the accused man you will obviously acquit him, and by evidence I am also referring to the record of interview. However, even if you do not positively believe him you could properly return a verdict of guilty only if you were satisfied beyond reasonable doubt that the evidence of the accused man is false.

There are, of course, cases in which the complainant's evidence is so convincing and the denials of the accused so unconvincing that it is possible to reach a stage of satisfaction beyond reasonable doubt, but caution is indicated whenever the case boils down to one of oath against oath."

53 The nub of the applicant's complaint focuses on the last paragraph of that section of the charge. It is said that by referring to the possibility of the applicant's evidence being "so unconvincing" the judge effectively reversed the onus of proof or at least put an unnecessary gloss on the directions properly to be given on burden and standard of proof which is likely to have deflected the jury from application of the tests earlier outlined.

54 That submission is not persuasive. In this respect the judge's charge closely follows the form of the County Court Charge Book standard directions for an oath against oath[31] sex offence case, and in turn those standard directions are based closely on part of an answer given by King, C.J. to the first question in Questions of Law No. 1 (No 1 of 1993)[32]:

"It is proper where an accused person has given evidence in denial of the charge and there is no convincing corroboration of the alleged victim's allegation, to remind the jury that the case is, or may be if they find the supporting evidence unconvincing, a case of oath against oath and of the difficulty in such circumstances of arriving at a conclusion of guilt beyond reasonable doubt. Where that course is taken, the jury should also be told that there are cases in which an alleged victim's evidence is so convincing and the accused's denials so incredible that it is possible to reach that state of mind, but that caution is indicated ... "

With respect, that appears to me to be a very satisfactory method of bringing home to a jury what needs to be considered when applying the burden and standard of proof born by the Crown in a case of the kind in question. I consider that ground 5 fails.

Ground 6

55 Finally, under cover of ground 6, the applicant contends that the trial miscarried by reason of:

1. The judge's refusal of a request made by the jury to be provided with a transcript of the complainant's evidence;

2. The judge's failure to direct the jury in accordance with Black v. R[33] before accepting a majority verdict; and

3. What is said to be a misdirection given by the judge on the question of a majority verdict.

56 I do not see that there is anything in the point about the judge refusing the jury's request for a transcript of the complainant's evidence. The jury did not make that request until after they had been deliberating for the better part of three days and had returned unanimous verdicts of not guilty on counts 3 and 4. By that stage the judge had already read out passages of the evidence to the jury and evidently was of the view that to allow the jury to have a transcript as well ran the risk of the jury concentrating unduly on the transcript to the detriment of other evidence and the demeanour of witnesses. Since the case was essentially one of oath against oath it is difficult to disagree with his Honour's decision. But, in any event, his Honour was best placed to assess the situation and his decision to refuse the request for transcript was well within the potential range of sound exercise of discretion.

57 There is more substance in the complaint that the judge failed to give a Black direction before accepting a majority verdict. The decision in Black is clear and, until and unless the High Court says something different on the subject, it goes without saying that it should be followed. Where after a jury have been deliberating for some time it appears that the jury are having difficulty in reaching a verdict in a criminal trial, the judge should direct them along the lines which are now known as a Black direction and which are explained at greater length in the decision of this court in R v Muto & Easte.[34] In this case the judge did not do so.

58 That having been said, however, I do not consider that the judge's failure to give a Black direction in this case could have made any difference to the outcome. The transcript shows that by the time the judge agreed to take a majority verdict the Crown and defence counsel and the judge were all of the view that it was most unlikely that the jury would be able to agree on unanimous verdict on counts 1 and 2, but that there was a real prospect that the jury would be able to reach a majority verdict on those counts if given more time. It follows that the conditions of ss.46(2) and (3) of the Juries Act 2000 were satisfied and it was permissible for the judge to take a majority verdict on those counts.[35]

59 I further do not accept that the judge erred in the directions which his Honour gave as to majority verdict. Plainly, whenever the need to give such a direction arises a trial judge should pay close attention to the guidelines provided in Reg v Muto & Eastey[36] and to the terms of the County Court Charge Book standard directions: "Majority Verdict Contemplated"; "Direction Permitting Majority Verdict"; and "Direction as to taking Majority Verdict" (which follow closely the guidelines laid down in Muto & Eastey). Just as plainly, the directions given by the judge in this case differ in some respects from the Muto & Eastey guidelines and from the standard charge. But in the circumstances which obtained I consider that they would have had a similar effect.[37] Despite what was left out, the essence was included and in substance it seems to me that what his Honour said more or less got there in the end. That is not to say that the form of direction employed by his Honour would be suitable for use as a precedent. With respect it would not be, and in a case in which matters developed differently to the way in which they unfolded in this case, it could well prove inadequate. For future reference, there should be no doubt that the closer the attention which is paid to the Muto & Eastey guidelines and to the standard charge the less room there is likely to be for doubts about the adequacy of directions given. But be that as it may, in my view ground 6 fails.

Conclusion

60 For the reasons given, I would dismiss the application for leave to appeal.

61 I agree with Nettle, J.A., for the reasons which his Honour gives, that the application for leave to appeal against conviction should be dismissed.

[1] It is not significant, in my view, that a verdict on count 1 was not announced until the end of deliberations. The jury might well have been striving for unanimity on that count.

[2] Stevens v. The Queen [2005] HCA 65, at [29], per McHugh, J.

[3] See s.19(1)(i) Crimes (Criminal Trials) Act 1999

[4] Crimes Act 1958, s.36(d).

[5] The defence also accepted that if the jury found she was asleep when penetrated then the applicant was guilty of count 1.

[6] Emphasis added.

[7] [1994] HCA 63; (1994) 181 C.L.R. 487 at 493-4.

[8] [1994] HCA 63; (1994) 181 C.L.R. 487 at 501-504, per Brennan, J. and at 524-525, per McHugh, J.

[9] (1997) 191 C.L.R. 439 at 468, per Kirby, J; cf. MFA v the Queen [2002] HCA 53; (2002) 213 C.L.R. 606 at 615 [26], per Gleeson, C.J., Hayne and Callinan, JJ.

[10] cf. M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 504-5, per Brennan, J.

[11] Reg. v Lillyman [1896] 2 Q.B. 167 at 170; Kilby v The Queen [1973] HCA 30; (1973) 129 C.L.R. 460 at 466, per Barwick, C.J.; M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 514, per Gaudron, J.; cf. Papakosmas v The Queen, [1999] HCA 37; (1999) 196 C.L.R. 297 at 302- 307.

[12] R v Freeman [1980] VicRp 1; [1980] V. R. 1 at 6, per Starke, McInerney and Murphy, JJ.; R v Stoupas (1997) 94 A.Crim. R. 525 at 530-531 and 533, per Winneke, P. and at 537, per Hayne, J.A. in diss but not on this point; R v Munday [2003] VSCA 189; (2003) 7 V. R. 423 at 429[16], per Ormiston, J.A.

[13] BRS v The Queen [1997] HCA 47; (1997) 191 C.L.R. 275 at 301, per Gaudron, J. and at 326, per Kirby, J.

[14] ibid. at 301.

[15] (1995) 79 A. Crim. R. 355.

[16] [1997] 1 V.R. 593

[17] Kilby v The Queen [1973] HCA 30; (1973) 129 C.L.R. 460 at 465-466.

[18] Koloi v R [2004] NZCA 199 at [41].

[19] R v Freeman [1980] VicRp 1; [1980] V.R. 1 at 6; M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 514-5; R v Munday [2003] VSCA 189; (2003) 7 V.R. 423 at 431 [21].

[20] Cf. White v R [1998] UKPC 38; [1999] 1 A.C. 210 at 218; Cross on Evidence, Aust Ed. at [17285]

[21] In addition to the directions given in running on prior inconsistent statements (to which I have already referred).

[22] As well perhaps as the evidence of the doctors and the police notes.

[23] Despite that defence counsel apparently did his best in final address to convince the jury that all of it was evidence of the facts.

[24] TKWJ v The Queen [2002] HCA 46; (2002) 212 C.L.R. 124 at 149 [79]- [82]; Ali v The Queen [2005] HCA 8; (2005) 214 A.L.R. 1 at 4 [7].

[25] [1998] HCA 23; (1998) 153 A.L.R. 145

[26] (1998 ) 153 A.L.R. at 151 [22] and [23], see also at 148 [12]-[13], per Gaudron and Gummow, JJ.

[27] R v. Freeman & Ors., ibid., at 11-14

[28] R v. Freeman & Ors. op.cit., at 14

[29] R v. Flannery [1969] VicRp 72; [1969] VR 586 at 591 referred to in R v. Freeman & Ors at 13.

[30] [1969] VicRp 72; [1969] V.R. 586 at 591.

[31] Neither being corroborated.

[32] [1993] SASC 3896; (1993) 59 S.A.S.R. 214 at 218.

[33] [1993] HCA 71; (1993) 179 C.L.R. 44

[34] [1996] VicRp 21; [1996] 1 V.R. 336.

[35] R v Di Mauro [2001] VSCA 52; (2001) 3 V.R. 62 at 64 [12] -[14], per Callaway, J.A.

[36] [1996] VicRp 21; [1996] 1 V.R. 336 esp. at 343.

[37] Cf. R v Rodrigeuz [1998] 2 V.R. 167 at 177 per Charles, J.A. and at 185, per Callaway, J.A.