R v N J M [2001] VSCA 235

Court of Appeal (Vic)|2001-12-20|Before: CHARLES, BUCHANAN and CHERNOV, JJ.A.

CRIMINAL LAW - Rape - Verdict - Duty of judge to put defence case to jury - Failure to take exception not fatal - Complainant giving contradictory evidence - Unsafe and unsatisfactory - Verdicts of acquittal entered.

I have had the advantage of reading the judgments in this matter prepared by the other members of the Court. I gratefully adopt the statement of the facts prepared by Buchanan, J.A.

I should say at once that I agree with Chernov, J.A. that the application for leave to appeal against conviction must succeed because the trial judge's charge, with respect, made only slight reference to the defence case, which was consent; and, accordingly, a miscarriage of justice was brought about by her Honour's failure to give the jury a balanced charge. Notwithstanding that no exception was taken by the experienced defence counsel, I agree that there was in this case a clear breach of the basic safeguard explained by Smith, J. in R. v. Wilkes & Briant[1] that the trial judge must put the defence case fairly to the jury, a breach which I think in the circumstances brought with it the "serious risk of a miscarriage of justice". The only question remaining is whether a retrial should be ordered or this Court should now enter verdicts of acquittal.

I agree that on the evidence-in-chief of the complainant the jury would have been entitled to be satisfied beyond reasonable doubt of the guilt of the applicant on both charges of which he was later convicted. When, however, the complainant was cross-examined, she made, as Buchanan, J.A. has said, a number of startling admissions which amounted, in my view, to a complete recantation of the inculpatory statements she had made previously. Much of this evidence has been set out by Buchanan, J.A. The questions of the cross-examiner do not appear to have been forcefully put, nor was the cross-examination a particularly lengthy one. A matter of some significance, however, in my view, is that the complainant's answers by no means followed a pattern of merely assenting to any proposition put to her by the cross-examiner. For example to the question "But he didn't lay you on the couch, did he?", the complainant's answer was "No, he told me to get on the couch". To the question "You wanted to make the story seem more serious, didn't you, that is why you said you had been pushed onto the couch?", she replied "Um, about pushing on the couch, he didn't push me on the couch at all." To the suggestion that the complainant expected the applicant to come back the next week with the $50 he had promised her for sex, she replied "But he didn't turn up".

The substance of the new version of events given by the complainant under cross-examination was that the applicant offered her $50 for sex (she said "He said he was going to give it to me next week"), kissed her, went out of her flat to his vehicle and returned, that she then, at his request but of her own free will, got onto the couch, that she sucked his penis and he then had sex with her on the couch, and she became angry only when he ejaculated inside her; and after having had intercourse, she sat down with him and had a chat, and when he asked for a cool drink, she went to get him a glass of water. The complainant also said that she had lied or not told the truth on a substantial number of occasions both to the police and in her earlier evidence, and said that the applicant had not forced himself on her, and that she was happy for him to have sex with her. The sum total of these statements, in my view, amounted to a complete retraction of the evidence-in-chief which would have supported the convictions of the applicant.

Other evidence against the applicant was contained in his own answers in his record of interview with the police. It was perfectly clear from his answers that he was acutely conscious that his behaviour had been quite shameful and that he was intensely remorseful for having acted in this way. As he said in one answer "It made ... me feel that crook, I even pull up and I dry retched a few times". He repeated several times that he was sick and disgusted with himself. But I agree with Buchanan, J.A. that the applicant did not in his answers at any point admit that he was aware that she was or might not be consenting, and that his answers did not supply the want of unequivocal evidence of guilt of these offences.

In all the circumstances, like Buchanan, J.A., I can see no rational basis upon which the jury could have made a choice between the two entirely contradictory

versions of the complainant's evidence. In M. v. R.[2], Mason, C.J., Deane, Dawson and Toohey, JJ. said:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."

Notwithstanding the force of the views expressed by Chernov, J.A., I agree with Buchanan, J.A., for the reasons he gives, that the jury's advantage in seeing and hearing the complainant is not capable of resolving the doubts that have arisen in the present case.

Had a retrial been ordered, it would have been necessary to say something as to the application for leave to appeal against sentence, as to which it seemed to me that the applicant's arguments were not without substance. But for the foregoing reasons I also would set aside the convictions of the applicant and, in lieu thereof, enter verdicts of acquittal.

On 26 October 1999 the applicant was arraigned and pleaded not guilty to one count of oral rape and one count of vaginal rape. The complainant was a woman who was aged 27 years when the offences were alleged to have been committed. She was found by the trial judge to be a person with impaired mental functioning within the meaning of s.37B of the Evidence Act 1958 and thus her evidence-in-chief was given partly in the form of a video and audio recording of the complainant answering questions put to her by a police officer and partly by means of closed circuit television from a place outside the courtroom pursuant to the provisions of s.37C of the Act.

10 The applicant at one time had been in a de facto relationship with the complainant's mother. During the afternoon of 3 February 1999 the applicant, a tow-truck driver, visited the complainant for half-an-hour at the flat in which she lived with her de facto partner and child. There was a large measure of common ground in the evidence of the complainant and the record of interview of the applicant as to the events that occurred in the course of the applicant's visit. They agreed that upon his admission to the flat the applicant asked the complainant for sex and offered her $50. The complainant said she refused the offer while the applicant said that her response was neutral. The applicant left the flat to turn off the engine of his tow-truck. When he returned to the flat the applicant had an erection. The complainant said that the applicant repeatedly requested her to "suck him off" and she kept saying "no". She said that he spoke to her "in a big strong voice". They had oral sex. The applicant lifted up the top garment which the complainant was wearing and fondled her breasts. The complainant removed the remainder of her clothing and lay on the couch. The applicant placed his penis in the complainant's vagina and had intercourse for approximately five minutes until he ejaculated inside her vagina. The complainant said that she was repeatedly saying "no". The applicant said that if he had realized she was saying "no", he would have stopped. He agreed he may not have been aware of what she was saying because he was so "hyped up".

The remaining Crown witnesses consisted of the police officer who interviewed the complainant on video-tape, the complainant's care provider, who gave evidence that the complainant told her that the applicant had pushed past her into the flat and asked her to "suck his dick" and had then pushed her on to a chair and had sex with her, to which she said she did not consent, a forensic scientist who, upon the basis of an analysis of DNA material, confirmed that the complainant and the applicant had had sexual intercourse, a physician who examined the complainant on 3 February 1999 and found no evidence of injury and a police officer who interviewed the applicant. The applicant did not give evidence.

On 5 November 1999 the jury returned verdicts of guilty on both counts. After a plea the applicant was sentenced to be imprisoned for a term of three years on count 1 and to be imprisoned for a term of six years on count 2. It was ordered that 12 months of the sentence imposed in respect of count 1 be cumulated upon the sentence imposed in respect of count 2, producing an effective total sentence of seven years' imprisonment. A term of five years' imprisonment was fixed before the applicant was to be eligible for parole.

The applicant seeks leave to appeal against his conviction and sentence. The grounds of the application for leave to appeal against conviction are concerned with the admission of parts of the applicant's record of interview, the manner in which the prosecution was permitted to lead evidence from the complainant, a ruling that the complainant could not be cross-examined as to other allegations of rape she had made and what were contended to be deficiencies in the judge's charge to the jury. It is convenient to turn first to the remaining ground, that the conviction was unsafe and unsatisfactory, which was at the forefront of the submissions made on behalf of the applicant.

Section 568(1) of the Crimes Act 1958 provides that the Court of Appeal is required to set aside a verdict if it is of the opinion that "it is unreasonable or cannot be supported having regard to the evidence ... or that on any other ground whatsoever there was a miscarriage of justice." In M. v. R.[3] Mason, C.J., Deane, Dawson and Toohey, JJ. said that the like New South Wales provision allowed a verdict to be set aside when the verdict was unreasonable or not supported by the evidence. In the present case the jury verdicts are said to be unreasonable in that the complainant's evidence was contradictory, some of her evidence denying the evidence that could establish guilt, and there was no other evidence or basis upon which the jury could have chosen rationally between the different evidence.

The primary evidence-in-chief of the complainant was that contained in the video and audio tape which was played to the jury. Further evidence was led from the complainant by means of a closed circuit television link. Her evidence on television covered some of the events described on the tape and was in part elicited by leading questions based upon the tape. The following are examples:

"In your tape you say that `He asked me to suck him off and I keep sayin' no and he keeps sayin' yes, yes'; do you remember that's what you said?---Yes. What did you understand `suck him off' to mean? What did you understand he was asking you to do?---He asked me to put my mouth on his penis. You say you said no and he kept saying yes, yes, is that right?---Yes, it is. You told us in the tape you said no but he had sex with you; is that right?---Yes, it is. You say that he put his penis inside you and that you were on the couch; is that right?---Yes. Did you want to have sex with Neil?---No, I didn't. Did you say anything to him about not wanting to have sex?---Um, yes, I did."

In cross-examination, which was by no means vigorous or protracted, the complainant made a number of startling admissions. The complainant admitted that some of the things which she had said in the course of her taped evidence were lies. The complainant said in her taped evidence that the applicant pushed her on to a couch and started having sex with her. In cross-examination she agreed that the applicant asked her to get on to the couch and she did so. In her taped evidence the complainant said that when they had finished intercourse, the applicant got off, pulled his shorts up and "took off in his tow truck". In the course of cross-examination the complainant said that the applicant kissed her before he left the flat to turn off the engine of his truck and assented to the proposition that she did not tell the police that because it would not look as if he had forced her. Later she said that after they had intercourse, the applicant requested and the complainant gave him a glass of water and they had a talk, and she agreed with the proposition that she did not say that in the course of her taped evidence "because you didn't want the police to know that you were still getting on with Neil in the flat". The complainant said that when the applicant left the flat the first time, she knew he wanted sex. She was happy for him to come back into the house. She knew that the applicant was going to have sex with her and she was happy for that to happen. She said that during the act of sexual intercourse she did not ask the applicant to stop or to get off.

Finally, in answers that went to the heart of the case, the complainant gave the following evidence:

"What Ms Moore says is that you said to her that Neil forced himself on you. That was not true, was it?---No. Because he didn't threaten you, did he?---No, he didn't. Certainly was not physical towards you, was he?---No. What I suggest you were concerned about or unhappy about, you were unhappy that he had come inside of you, weren't you?---Like I was not happy about that? Yes?---Yes. You knew he was going to have sex with you?---Yes, I did. That was not a problem, was it? You were happy for that to happen? --Yes. But because he came in you that made you angry, didn't it?---Yes. That is the reason you complained, wasn't it?---Yes. You were worried abut the effects that might have on you, weren't you?---Yes."

The account given by the complainant in cross-examination corresponded with the events described by the applicant in his record of interview.

The remaining Crown evidence in my opinion did not resolve the conflict which appeared in the complainant's testimony. The medical evidence was consistent with the applicant's account. The evidence of the complaint given by the care-giver was said by the complainant herself to be false.

The respondent contended that the answers given by the applicant when he was interviewed by the police corroborated the complainant's version which supported the verdicts of guilty. In his record of interview the applicant agreed with a large number of the suggestions made to him by his interviewer. He readily admitted that he had had sexual intercourse with the complainant and that at his request she had performed fellatio upon him. He did, however, maintain that he was not aware that at any stage the complainant was protesting. He acknowledged the possibility that the complainant may have said "no", but denied that he had heard her say it, saying "I could've been too hyped up ... too sexcited." The applicant said that he was ashamed of his actions. He said:

"But I know one thing, I - I - I - after it happened, I felt that ashamed of myself and that sick inside, I didn't know what made me do it."

He was asked why he felt sick and ashamed and said:

"Because she's - well, I'll just put it bluntly, she's a bit backward and she wa-, was like - like a stepdaughter to me and it made it me feel that crook, I even pulled up and I dry retched a few times."

Presumably encouraged by these answers the interviewer put a number of leading questions to the applicant designed to establish that the applicant was aware that the complainant might not be consenting and in certain respects travelled beyond the evidence that would later be given by the complainant. The questions and answers were as follows:

"Well, just to discuss that point, the fact that - you - you're aware of the fact that she's slow? Yes, sir. Or - - -? Yes, sir. Intellectually disabled? Yes, sir. Alright. If I put it to you that maybe it came across to you that [the complainant] didn't put up a struggle because of the fact that she is disabled, what do you say to that? That'd probably be true, sir, yes. Well, if I put it to you that even though you might not have physically - - - ? Forced her. Forced her. Yes, sir. Your continual verbal suggestions towards made of - may have made her compelled to follow through with the actions, what - what would you say? Could've - yes, sir, that could be correct. Alright. Well, I put it to you that it is correct, the fact that - - - ? Yes, sir. Well, it is correct, yes. Alright. I put it to you that you really gave her no chance - - ? Probably not, no. To not - - - ? Not - you're correct, sir. Yes. Mm. But I did - I did not physically force her. Alright. I'm - well, I'm not suggesting that you physically - - - ? No, sir. Forced her, I'm say -, I'm putting to you that you didn't give - allow [the complainant] the opportunity - - - ? Mm. To say no. To say no. That's correct, sir.

...

Okay. I'd suggest to you then, Neale, that she didn't give you any permission whatsoever for you to have intercourse with her? No, not really, sir, no."

The complainant in her evidence described the applicant as "a bit slow", "like I'm a little bit slow as well" and said that he could only read and write a "little bit" and not as well as she could. The applicant's record of interview discloses a man eager to please his questioner. In the main the answers said by the respondent to incriminate the applicant were those of a man, ashamed that he had had intercourse with a woman who had stood to him in the relationship of a stepdaughter and who was vulnerable by reason of her retarded intellect, conceding with hindsight that the complainant may well not have consented to intercourse with him. In my opinion the answers in the record of interview do not supply the want of unequivocal evidence that the complainant did not consent or that the applicant was aware that she was or might not be consenting.

The critical questions of fact were whether the complainant did evince any opposition to performing fellatio upon the applicant or having sexual intercourse with him and, if she did, whether the applicant was aware that she was not consenting or might not be consenting.[4] The complainant gave conflicting accounts of many of the circumstances which accompanied the offences and acknowledged that in at least one instance she had lied to strengthen her allegations of rape. More importantly, the complainant admitted that she had willingly had intercourse with the applicant and was only moved to complain by the act of the applicant ejaculating in her vagina. The verdict of guilty did not depend upon the jury accepting the evidence of one witness rather than that of another. In order to find the applicant guilty, the jury were required to accept one version of the events given by the complainant and reject another, contradictory account which she gave. I can see no rational basis upon which the jury could have made that choice so as to find the applicant's guilt beyond reasonable doubt.

The problem is different from that posed by verdicts of guilty on some counts and not guilty on others where all the counts depend upon the evidence of one witness. It may be concluded that the verdicts are not inconsistent because the prosecution is required to prove beyond reasonable doubt the facts necessary to establish each offence and the jury may have had a reasonable doubt about the facts necessary to prove particular counts while having no such doubt as to others. In the present case, on the other hand, in order to find the applicant guilty, the jury was required to find one of the complainant's versions established beyond reasonable doubt and the other version so lacking credibility that it could not itself create a reasonable doubt as to the truth of the first version.

I am conscious that the words in a printed transcript may give one impression to a reader and that the same words heard by a jury may give quite a different impression. For that reason an appellate court will not readily depart from a jury's preference for the testimony of one witness to that of another. In the present case, on the other hand, the choice lay between two different accounts given by the same witness. The inconsistencies could not have been seen as "insignificant minutiae once a witness convinces a jury that ... she is honestly attempting to tell the truth".[5]

The possibility exists that the conflicting accounts given by the complainant were accompanied by facial expressions, gestures or body movements which may have been taken by the jury to render one account more truthful than the other. The difficulty with that is that the words appearing in the transcript are unambiguous. In my view a choice between them based upon the complainant's demeanour could not properly found the conclusion that the applicant's guilt had been proved beyond reasonable doubt. Having regard to the state of the complainant's evidence, upon which the guilt or innocence of the applicant wholly depended, I do not see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the applicant.

In my view the evidence answers the description of Mason, C.J., Deane, Dawson and Toohey, JJ. in M v R, when they said:

"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."[6]

When full allowance is made for the manner in which the complainant gave her evidence, the matters which cast doubt upon the prosecution case remain unanswered.

For the foregoing reasons I would set aside the convictions of the applicant and, in lieu thereof, enter verdicts of acquittal.

In this application, I have had the benefit of reading the reasons for judgment in draft form of Buchanan, J.A. I regret, however, that I am unable to agree with his Honour's conclusion that the jury's verdict in this case is unsafe and unsatisfactory and that, therefore, the conviction should be quashed. Since Charles, J.A. agrees with the conclusion of Buchanan, J.A., I need only express my reasons for dissent briefly. It will mean, however, that I will need to consider whether the applicant can succeed in his application for leave to appeal on any one of the other grounds that were argued before us.

The principle that governs the determination by an appellate court whether the jury verdict is unsafe and unsatisfactory was stated by the majority of the High

Court in M v. R.[7] in the following terms[8]:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

In particular, regarding situations where there is evidence which raises a doubt in the mind of a court of criminal appeal, their Honours said[9]:

"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred."

"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence."

Buchanan, J.A. has sufficiently set out the facts and the majority of the evidence relevant to this issue and I gratefully adopt what his Honour there said. His Honour concluded that the verdict cannot stand not only because some of the complainant's evidence was inconsistent with her claim that she did not consent to the sexual acts demanded of her by the applicant, but some of her evidence plainly contradicted her claim of lack of consent. In the view of Buchanan, J.A., there was no rational basis on which the jury could have chosen between the complainant's contradictory accounts, particularly those going to her consent or otherwise to the sexual behaviour demanded of her by the applicant, so as to find him guilty of the relevant offences to the required standard of proof.

That the complainant was mentally impaired and that she was child-like and slow in responding to questions, must have been apparent to the jury from their observations of her when she gave her evidence-in-chief by way of the VATE tape and when she was examined and cross-examined during the proceeding. She said in her re-examination that, at the time of the offending, she was in receipt of assistance each morning from a representative of Maralak House in Brighton who, she said, helped people with disabilities. In her case, that help included cleaning her flat, taking her to the bank and doing her shopping. The complainant also said that she received help from Community Services of Victoria. Evidence on this matter was also given by Dr. Odell, a forensic physician at the Victorian Institute of Forensic Medicine who was experienced in the field of intellectual disability. He said that the complainant appeared to have an intellectual disability and that "she seemed very eager to please people, to answer questions and to try and co-operate in the best way she could almost in childish fashion." In cross-examination, he agreed that he would define the complainant's disability as "mild".

Notwithstanding the complainant's mental disability, her evidence-in-chief was, in the main, given in response to non-leading questions. For example, in my view, the examination of her for the purpose of the VATE tape was conducted by the duly certified policewoman with considerable skill in the sense that, generally, she was able to get the complainant to tell her version of the events without leading the witness. It is true that, from time to time, the interviewer summarised some of the complainant's preceding evidence and asked her if she agreed with it, but, as I have said, the complainant first gave this evidence principally in response to non-leading questions. As to the complainant's evidence at the trial that was given by means of a closed circuit television link, although some of it was elicited by the prosecutor through leading questions, in my view, the bulk of the questions were either not leading or, as to those that were leading, many of them were summaries of the complainant's previous evidence as a preliminary to asking the following relevant non-leading question - as, for example, the first two questions reproduced in paragraph [15] of the reasons of Buchanan, J.A. A number of other leading questions related to matters that were not in issue, such as the fifth question reproduced by his Honour. In any event, no relevant objection was taken by the applicant's counsel to the prosecutor's questions of the complainant and the trial judge did not interfere with the manner in which the complainant's evidence-in-chief was led on the basis that it was unfair to the applicant.

At the trial, the central issue before the jury was whether the complainant consented to the sexual conduct in question and if she did not, whether the applicant believed that she consented as he claimed. The applicant did not give evidence, but his record of interview was tendered and his case was, in effect, put to the jury through that record of interview. I accept, with respect, the characterisation of the applicant by Buchanan, J.A. in respect of his record of interview, namely, as a person who expressed remorse and was eager to please his interviewer. Nevertheless, and probably because he appreciated his precarious position, he maintained during the course of his interview by the police that he did not believe that the complainant did not want to have sex with him and that, as was the case, he did not physically force her to commit the sexual acts in question. But he accepted in his record of interview that he made continual verbal suggestions to the complainant for her to gratify his sexual desires and that, given the complainant's disability, he may not have allowed her the opportunity to tell him more clearly that she did not want to engage with him in oral or vaginal sex. There are also the following passages in the record of interview that were before the jury:

"You've - you've, in fact, just punted on the fact that she might be consenting and she hasn't had time to say no. Would you agree with that? I would agree with that, yes, sir. It would be true that whenever you asked her anything, if I was to put it to you, that she - she needs a little bit extra time to most people to - to say yes or no, would that be true? That's correct sir. Did you give her that extra time today? No, sir. Why didn't you do that? I dunno, sir, I was just hyped up. `Sexcited' was the word you used before, is that right? Yeah, sexcited, yeah, that's what happened, sir. Hyped up, sexcited. I'm - I'm not lying, sir, I did not force myself on her."

"Yeah? Do you think that she- do you think you gave her any opportunity to stop you today? No, sir. Do you think you've done the right or the wrong thing here today? I done the wrong thing, sir. If I was to put to you you've taken advantage of a vulnerable female and - in considering her disability, would you agree with that? I would agree with that, yes, sir. Do you think you've - I put it to you that the reason that you've picked Carinne is because of her disability and you realise that any other female probably would've been a little bit quicker to refute your suggestions. Would you agree with that? Yes, sir."

In my view, notwithstanding that it seems that the applicant was intellectually slow, the jury were entitled to regard that evidence as amounting at the very least to an admission by him that he put a certain amount of pressure on the respondent to have sex with him and exploited the fact that she was slow in speaking her mind due to her mental disability.

As to the complainant's evidence, there is no doubt that, by assenting to some of the suggestions or questions put to her by the applicant's counsel in cross-examination, she effectively said things that, on their face, contradicted her claim that she did not consent to the sexual conduct in question. Critically, as I have already mentioned, and as Buchanan, J.A. has shown, she effectively agreed that she was "happy" to have sexual intercourse with the applicant. There were also answers given by her in cross-examination which were inconsistent with her case and others which seemed to go against her on credit. Buchanan, J.A. summarised the substantial part of such cross-examination in his reasons. His Honour did this, of course, by way of illustration only. If one examines the whole of the transcript of the complainant's cross-examination, it becomes apparent that she was, as Dr. Odell said, eager to please people, in this case, the cross-examiner, and even assent to propositions put to her by the applicant's counsel (and by the prosecutor) that were plainly wrong. For example, the following conversation took place during her cross examination:

"And I take it that you told Miss Moore that Neil had had sex with you, didn't you? Yes. And at that stage, you were worried about Neil and you told her that you "didn't want to have sex", is that right? That is true. Because you didn't want Neil getting cross with you? Yes."

And the following took place during the re-examination when the counsel for the Crown was asking the complainant what words the applicant actually used when he told her not to tell her mother or her partner, Eddie, about what had happened between them:

"Were they the words that Eddie used? Yes, he did. Can you just tell us again what words Eddie actually used, I have done it, I am doing the wrong thing, what words did Neil actually use?"

It is obvious that the two italicised references to Neil in the first passage quoted above were meant to refer to Eddie and the italicised reference to Eddie in the second passage was meant to refer to Neil. However, the complainant readily said "Yes" to all those propositions put to her even though the questions were themselves plainly wrong.

On one view, the picture emerges of a witness who was, from time to time, prepared to assent almost to any proposition put to her by cross-examining counsel. It is convenient to mention at this point that I respectfully agree with Buchanan, J.A. that the cross-examination was not vigorous or protracted, but it was, nevertheless, forensically skilful. In addition, as Buchanan, J.A. has shown, on the face of the transcript, the complainant acceded to the suggestion that, in effect, she was "happy" to have sexual intercourse with the applicant and that the reason she complained was because she was concerned about the effects that his ejaculation inside her might have on her. On its face, this evidence amounts to the complainant saying that she had consensual sexual intercourse with the applicant even if on one view it may not relate to the episode of oral sex. It is this contradictory evidence in particular that raises the question whether a reasonable jury could have reasonably, and appreciating the burden and the standard of proof, disregarded the complainant's conflicting evidence but accepted her claim that she did not consent to have oral or vaginal sex with the applicant.

In my view, in the particular circumstances of this case, the jury could have reasonably been satisfied beyond reasonable doubt on the whole of the evidence, of the complainant's claim that she did not consent to the applicant having sex with her and that she made this known to him by repeatedly saying "no" when he continually demanded from her sexual satisfaction in the form of oral and vaginal sex. Putting aside the inconsistencies and the contradictions in her evidence which Buchanan, J.A. highlighted, there was sufficient evidence on which the jury, acting reasonably, could have convicted the applicant. It was open to them to conclude that, although he did not physically overbear her, his constant and persistent demands in a "strong voice" that she perform sexual acts on and with him, was tantamount to using force to get his own way notwithstanding her protestations. The question is whether the jury could have rationally and reasonably accepted that version of events notwithstanding the complainant's apparently contradictory and inconsistent evidence given in cross-examination.

A key issue in the case was the veracity of the complainant in respect of the thrust of her evidence to which reference has already been made, rather than the accuracy of the details of the surrounding circumstances so that, in general terms, discrepancies and inconsistencies in relation to that aspect of her evidence may have been regarded by the jury as being of less significance. Whilst accepting that cross-examination is a powerful tool with which to test the honesty and accuracy of a witness's evidence and that inconsistencies and discrepancies in the evidence play an important role in the assessment of the reliability of that evidence, it is the fact that honest witnesses err about details of events and become confused when responding to questions put in cross-examination. I should have thought that this applies particularly to witnesses with a mental impairment. In my view, it would have been open to the jury in this case to make allowances for her disability and notwithstanding the inconsistencies in her evidence, regard her as an honest witness on the principal aspect of her evidence.

If one were to assess the complainant's evidence by reference only to the words in the transcript and by applying to them the analytical mind of a lawyer, there would be much to be said for the view that a reasonable doubt exists on the issue of her consent. But as Brennan, J. said in his dissenting judgment in M v. R.[11]: "Inconsistencies which loom large when painted with the colours of advocacy may be insignificant minutiae once a witness convinces a jury that he or she is honestly attempting to tell the truth. It is the sad but salutary experience of every counsel for the defence that the prosecution's `weak point' is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness." In my view, given the following factors, namely, the jury's significant and incomparable benefit of having heard and seen this particular witness, their collective and broad experience of life, their first hand appreciation of the complainant's disability and the atmosphere of the trial, it was open to them on the whole of the evidence, including the applicant's record of interview and his parting words to the complainant that she not tell her mother or her de facto husband about what had occurred, to disregard the inconsistencies in her evidence and, in particular, to conclude that, in the circumstances, when she agreed with the proposition that she was "happy" to have sex with the applicant, she did not thereby mean that she was consenting to having sex with him. It was open to the jury to take the view that she did not fully understand the proposition so put to her by the applicant's counsel because of her disability or general state of confusion close to the end of the cross-examination, or both. Similarly, the fact that she complained about the applicant's conduct because she was concerned with the consequences for her of the applicant having ejaculated inside her, may have been viewed by the jury as being a circumstance but for which she may not have complained at all and not as a circumstance that discredited the thrust of her evidence.

It must be borne in mind that the test whether the jury verdict is unsafe and unsatisfactory is not whether this Court entertains a reasonable doubt as to the guilt of the applicant, but rather whether it was open to a reasonable jury to be satisfied on the whole of the evidence of the applicant's guilt. In assessing the honesty of this complainant and the reliability of her evidence, the jury had a considerable and, in this case, incomparable, advantage over the Court. As I have said, they heard and saw her give evidence in what must have been, for her, a most testing environment. While it could appear somewhat unclear on the face of the transcript what some of the answers given by the complainant actually meant, it was likely that the jury, with the benefit of seeing and hearing the complainant, were able to judge for themselves what she actually meant by a "Yes" or "No" answer. For example, while the complainant would usually answer "No" to a negative proposition put to her if she agreed with that proposition, she would sometimes say "Yes" for the same purpose. Thus, for example, when the applicant's counsel cross-examined her about the oral sex episode, the following exchange took place:

On one view, on the face of the transcript, the above "Yes" given by the complainant could be construed as either agreeing or disagreeing with the proposition put to her. However, upon seeing and hearing both how the question was asked and the answer was given, the jury was in a much better position to know what the complainant meant. Here is another example that took place during the cross-examination:

"When you were at Kaye's house you told her you didn't want to ring your mum, didn't you? No".

Clearly, the jury, with the benefit of seeing and hearing the complainant, was in a much better position than this Court to judge whether by saying "No", she meant she did not tell Kaye that she did not want to ring her mother or whether she merely meant she did not want to ring her mother.

Moreover, as I have said, the jury had collective experience of life which was significantly broader than that of an appellate court and they were well acquainted with the atmosphere of the trial. These are very important considerations in a case such as the present where the incapacity of the complainant could have played an important factor in the determination of the relevance of the inconsistencies in her evidence and as to whether to accept her as a witness of truth. As Dawson, J. said in Whitehorn v. R.[12]:

"In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function with the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot."

There are, no doubt, many cases where the evidence of a key witness is so riddled with inconsistencies and contradictions that it is apparent that a reasonable jury could not have been satisfied to the requisite degree of the applicant's guilt even if due allowance were made for the witness's disability. In my view, however, for the reasons that I have given, this is not such a case. In my opinion, it was reasonably open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that they should accept the complainant's claim that the applicant effectively overbore her and, notwithstanding her obvious opposition, engaged in the offending conduct. The jury did not reach their verdict lightly. They clearly gave the matter consideration not only during the course of the trial, but for almost 4 hours after they retired to consider their verdict. Furthermore, they had the benefit of the trial judge's direction to them that it was very difficult to assess the evidence given by a mentally impaired person such as the complainant. Her Honour also told the jury that the evidence of the complainant contained self contradictions and inconsistencies and it was open to the jury to judge for themselves whether such inconsistencies and contradictions were due to the loss of concentration by the complainant during examination or due to the her inability to recall all the details or simply because the complainant was an unreliable witness.

For these reasons, I would not have upheld this ground.

I now turn to the application made on behalf of the applicant for leave to add two further grounds in support of the application for leave to appeal against conviction. These grounds are set out in the applicant's notice dated 26 October 2001. In essence, the new proposed grounds allege that the applicant's trial had miscarried because:

(a) the learned trial judge failed to explain to the jury the nature of the defence case; and

(b) in directing the jury on the issue of consent, the learned judge failed to relate her directions to the issues in the proceeding.

When the matter was first raised in the course of the appeal, the Court gave the applicant leave to argue the proposed grounds notwithstanding that the complaints which underpinned them were not raised by the applicant's counsel by way of exception to the judge's charge. We reserved, however, the question of whether the necessary leave would be given. We also gave leave to counsel to file further submissions on this issue and, in the result, the applicant's further submissions were filed on 5 December 2001 and the respondent's reply was filed on 10 December 2001.

It was argued for the applicant, under cover of the first proposed additional ground, that the learned trial judge failed to put to the jury the defence case on the issue of consent. In particular, it was contended that the judge did not summarise or otherwise direct the jury to the evidence which, if accepted by them, would point to consent on the part of the complainant. It was also claimed that her Honour said nothing to the jury of substance relating to the applicant's case that he believed on reasonable grounds that she was consenting to the conduct in question. The applicant's counsel claimed that her Honour's failure so to deal with the defence case resulted in a miscarriage of justice or at least gave rise to the risk of a miscarriage of justice, having regard particularly to the extent of her Honour's summary to the jury of the Crown's case on these issues. It was clearly explained by Smith, J. in R. v. Wilkes and Briant[13] that amongst the necessary safeguards established by the courts to ensure that the accused receives a fair trial is the rule that the trial judge must put the defence case fairly to the jury. This rule, said his Honour, cannot, save in exceptional circumstances, be departed from without serious risk of a miscarriage of justice and that this risk will "commonly be extremely grave" where the charge is rape and the only issue is consent and where the case depends mainly on the complainant's evidence and there has been no fresh complaint. These principles apply to the present case notwithstanding that the evidence was that the complainant made her complaint not long after the offending conduct. See also R. v. Schmahl[14].

An examination of her Honour's charge to the jury reveals that she presented forcibly the Crown case on the issue of consent but, in effect, made only slight references to the defendant's case. To the extent that she did so, reference was mostly made only to matters peripheral to the applicant's case and which did not go to the heart of it. In the circumstances, therefore, the charge was, at best from the applicant's point of view, unbalanced in favour of the Crown.

Notwithstanding this deficiency in the charge the applicant's experienced counsel took no exception to the charge. Such a course is often assumed to be an indication that counsel saw no unfairness to his client flowing from the deficiency in the charge. See, for example, R. v. Wright[15], R. v. Williamson[16], R. v. Pepe[17]. But failure to take an exception to the charge (particularly where there has been a material omission in the charge) is not necessarily fatal to the success of an application for leave to appeal - see R. v. Clarke and Johnstone[18]. In R. v. Osland[19], Winneke, P., Hayne and Charles, JJ.A. said[20]:

"... it is the obligation of counsel, if he or she thinks that a direction or a mission to direct is significant in the context of the trial, to take exception and ask the judge to re-direct. If counsel does not, the failure to object is a significant obstacle in the path of an applicant for leave to appeal (R. v. Clarke and Johnstone) although not an insuperable one if the misdirection or non-direction has manifestly led to a miscarriage of justice: R. v. Clune (No.2)[21]".

See also R. v. Wakim[22]. In my view, her Honour's failure to give the jury a balanced charge in the sense referred to, clearly resulted in a miscarriage of justice and, therefore, the verdicts cannot stand.

For these reasons, I would have granted the applicant leave to add the first of the proposed additional grounds to those on which he seeks to rely in support of his application for leave to appeal against conviction. For the reasons that I have given, I would have allowed the application on the first of the additional grounds, treated the appeal as having been instituted instanter, allowed the appeal, quashed the conviction and ordered a re-trial. In light of this conclusion and having regard to the conclusions of Charles and Buchanan, JJ.A., it is unnecessary for me to consider the other grounds relied on by the applicant in support of his application for leave to appeal against conviction.

[5] M v. R [1994] HCA 63; (1994) 181 C.L.R. 487 at 507 per Brennan, J.

[6] Above at 494. See also Jones v. R. (1997) 191 C.L.R. 439 at 451 per Gaudron, McHugh and Gummow, JJ.

[7] [1994] HCA 63; (1994) 181 C.L.R. 487, per Mason C.J. and Deane, Dawson & Toohey JJ.

[8] At 493. This test has been confirmed more recently by the High Court in Jones v. R. (1997) 191 C.L.R. 439, per Gaudron, McHugh and Gummow JJ. at 450-451 and in Gipp v. R. (1998) 194 C.L.R. 106, per Gaudron J. at 114, per McHugh and Hayne JJ. at 123. See also R. v. NRC [1999] VSCA 184; [1999] 3 V.R. 537 at 555 per Winneke, P.

[14] [1965] VicRp 95; [1965] V.R. 745 at 748-749 per Winneke, C.J.

[16] [2000] VSCA 5; (2000) 1 V.R. 58 at 76-77 per Charles, J.A.

[17] [2000] VSCA 208 at [40] per Charles, J.A.

[18] [1986] VicRp 64; [1986] V.R. 643 at 661-662 per Full Court (Crockett, McGarvie and Southwell, JJ.).

At a glance

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Judgment (99 paragraphs)

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