R v Nous [2010] VSCA 42

2 By notice of application dated 10 September 2008 and full statement of grounds dated 17 February 2009 the applicant relied upon the following two grounds of appeal:

1. The trial of the applicant miscarried in that the offence of indecent assault was not left for the jury's consideration.

2. The guilty verdict of the jury was unsafe and unsatisfactory.

3 The submissions in relation to each of these grounds were based upon the evidence received at trial in relation to the element of 'penetration'. The applicant submitted that the evidence given by the complainant was equivocal as to whether penetration had actually occurred. In those circumstances, it was submitted, that the trial judge erred in failing to leave indecent assault as a lesser alternative charge to the offence of rape. Further, and in the alternative, it was submitted that the Court should conclude that the evidence of the complainant which bore upon that element was so weak, that the verdict should be regarded as unsafe.

4 In response it was submitted on behalf of the Crown that the submissions of the applicant were based upon a misapprehension of the applicant's evidence which considered as a whole, was unequivocal as to the element of penetration. Counsel drew attention to the course of the trial and the position adopted by the defence. The defence case was a denial that the incident ever occurred. While conceding that the issue of penetration had been mentioned by the defence in its closing submissions, it was disputed that the issue had been put before the jury in any meaningful sense. The failure to put the issue, it was further submitted, was reflective of the state of the evidence which did not provide any cogent basis upon which it could be said that penetration had not occurred.

5 The prosecution alleged that the offence was committed on 5 September 2005, the day after Father's Day. It occurred in a house which the complainant was sharing with two men, Paul Caulfield and Rennie Agnello. She had been living there for about one and a half weeks before the alleged offence occurred. She suffered from, and was being treated for, depression.

6 On Father's Day the complainant had cooked lunch for her housemates and their children and drove one of the children home. She returned shortly thereafter.

7 The applicant, who was Mr Agnello's friend, had been to the house earlier in the day and returned late in the evening. The complainant watched some television with Mr Agnello and the applicant. Although the complainant had previously met the applicant on a couple of occasions she had spent little time in his company. For a while the three watched television in the main room and consumed some alcohol. The amount that she consumed was a matter of controversy at the trial.

8 Later, the complainant suggested that the three go into her room to watch television as it was a better quality set. The three then went to the complainant's room and watched television for a time. Later at approximately 2.00am the applicant and Mr Agnello decided to go and buy some alcohol. When they left, the complainant took some medication and fell asleep.

9 Much later in the morning, at approximately 9.40am, the complainant woke to find the applicant licking her vagina. She started screaming. Around this time a doctor responsible for treating the complainant rang. She informed the doctor of the incident and he came straight around. At one point he left the complainant's medication on the table and the complainant swallowed it all. She said she did so because of her anger at the incident. She started vomiting and was ultimately taken away in an ambulance.

10 The defence denied that the incident ever occurred and drew attention to the mental state of the complainant at the time of the offending. It was common ground during the trial and on the appeal that the complainant was suffering from, and being treated for, severe depression. Her treatment included regular visits from the Crisis Assessment Team ('CAT'). The defence invited the jury to view the allegation by the complainant as a 'cry for help' caused by her depression. It was suggested that the complainant's evidence was unreliable and that aspects of her account were implausible.

11 In this regard the defence referred to the complainant's evidence that she did not wake up until he had removed her tights and underpants and the applicant had inserted his tongue into her vagina.

12 In addition to the complainant, the prosecution called Mr Agnello, Mr Caulfield and the informant as witnesses. The applicant did not give evidence at the trial.

13 In closing address counsel for the applicant submitted that the incident did not occur. Further, he also put it to the jury that even if they were satisfied that the complainant's account was substantially true, they should not be satisfied beyond reasonable doubt that penetration had been established.

14 In her evidence-in-chief the complainant said that she did not have anything to drink until after she had driven Mr Agnello's son home at around 5 to 5.30pm. She had been given a six-pack of beer by Mr Agnello earlier in the day and she gave two of these cans to him after she returned home. She then drank about four of those cans over the next four or five hours. Mr Caulfield went to bed and she and Mr Agnello talked and watched television in the lounge room.

15 Mr Nous had visited the house during the middle of the day for a short time and returned at approximately 11.00pm, bringing a bottle of whisky with him, which he shared with the complainant and Mr Agnello. The complainant said she drank about two glasses of whisky mixed with Sunkist.

16 After about half an hour both men came into the complainant's bedroom and sat on her bed to listen to music. They stayed until approximately 2.00am when the Sunkist and the whisky ran out. The applicant and Mr Agnello left the premises to purchase more alcohol. After they left, the complainant took the medication which had been prescribed for her depression and went to sleep. She was wearing tights, underpants and a jumper.

17 The alleged rape occurred at about 9.40am the next morning. In her evidence-in-chief the complainant said that she woke up in the morning because she thought she was wetting the bed. She felt a movement behind her and lifted the doona to find the applicant there. She said that he had pulled down her tights and underpants to her knees and 'was licking me and he was sticking his tongue inside my vagina'. The applicant said nothing to her but looked up and smiled. She said that she was very angry and asked him 'What the fuck do you think you are doing?'

18 The complainant pulled on her underpants, tights and jeans and began pacing around the house and calling the applicant a rapist. The complainant said she was enraged and had screamed out to Mr Agnello 'George is raping me, George is in my bed, George is raping me'. When her doctor rang she told him she had been raped.

19 The applicant was naked at that time. He grabbed his clothes from the end of the bed, went to the laundry and then disappeared. The complainant realised that the applicant was no longer in the house and thought he had gone out the back door.

20 In cross-examination it was put to the complainant that at the committal she had said that she did not recall whether she had given two cans from the six-pack to Mr Agnello. In response, she said she did not recall saying that but did recall sharing the six-pack with him. She denied that she had drunk the whole six-pack herself. She was asked about the proportion of alcohol to Sunkist in the drinks she had and she said that because of the taste she thought it was between about one-quarter to one-third whisky. She denied she had been playing a game involving slapping hands with the applicant when he and Mr Agnello were in the bedroom or that she had asked him whether he would take his clothes off.

21 In cross-examination it was put to the complainant that she had not said that the applicant had sexually penetrated her. Counsel first asked her about her evidence that she had woken up when she realised that she was being raped:

COUNSEL: At no stage do you say that you were roused or awoken by those garments being pulled down. Right?

WITNESS: No. I woke up when George stuck his tongue inside my vagina.

COUNSEL: So is your evidence that you were not roused or awoken in any way by the removal of these garments?

WITNESS: I wasn't awoken by that time, no. I woke up thinking I was wetting myself but it was George's tongue inside my vagina.

22 Following further cross-examination counsel returned to the question of whether penetration had occurred:

COUNSEL: It's your evidence, is it not, that when you awoke, you felt a wet sensation. That's what you say. Right?

WITNESS: I thought I was wetting my bed but it was George's tongue inside my vagina.

COUNSEL: That was the sensation. Correct? It was a wet sensation?

WITNESS: That is correct.

COUNSEL: You would say that the area, the vaginal area was wet. Right?

WITNESS: That's why I thought I was wetting my bed.

COUNSEL: Is that right? Just, please, if we can focus on that question. That area of your anatomy was wet?

WITNESS: In my vaginal, area, yes, I felt it was wet.

COUNSEL: You've said in your evidence that what you recall was that Mr Nous's tongue was inside your vagina, that it had penetrated the outer genitalia. Right? That's what you've said?

WITNESS: Yes.

COUNSEL: I'm going to go back to some questions from the committal. Okay? We all know that they've been questions and answers given before. So I'm going to go through the process I just went through with you again. Okay? ...

COUNSEL: Question, 'You didn't feel his tongue inside your vagina, did you?' Answer, 'I recall I was weeing my bed, so this feeling of this warm liquid, like, going from front to the back, when I woke up it was him licking me up and done [sic]. So I will take it that it was his tongue that was making me feel that I was weeing my bed.' His Honour, whoever was the presiding judge or magistrate at the time says ... 'If you can, can you try and answer the question specifically, and if you can't, well, then just say so. So could you ask that question again or if you wish to?' Question, 'My question was that you didn't feel his tongue inside the vagina?' Answer, 'The shock, it was a big shock to me. He was licking me up and down. That's all I know.' Do you recall those questions and those answers?

WITNESS: I recall that he did ask me those questions and I did say it's wet from the vagina to my buttock, but I woke up with a shock because it was his tongue inside of my vagina.

COUNSEL: Going on at p 14, do you recall this question, 'And you have no recollection of his tongue being inside your vagina?' Answer, 'I have recollection of his tongue licking me up and down.' Question, 'But that's as much as you can say about it. Is that right?' Answer, 'That is correct.' Same again ... Do you recall that question and that answer?

WITNESS: His tongue was in my vaginal area and it was wet.

COUNSEL: ... I do not wish to be offensive to you or yell at you. In fact I'll be stopped if I try either. But I wish to try and focus on my questions and give the answers I ask. The question was a simple one. Do you recall that question and did you give that answer?

WITNESS: I did give you the answer that he was licking me from my vagina to my buttock because it felt wet all the way there, all that side - - -

HER HONOUR: Sorry ... You do have to, I'm afraid - I know it's difficult - answer the specific question and Mr Kowalski did ask you a very specific question. What he asked was do you remember those two questions being asked at the committal, and you giving those two answers, and it really is a yes, you remember, or no, you don't remember situation. It then can be taken further if required, but that's really the question. Do you follow me?

WITNESS: Yes.

HER HONOUR: Well, then, Mr Kowalski, do you want to ask that again?

COUNSEL: I shall. I'll just start from this last question and answer at 23, your Honour. (To witness) 'You have no recollection of his tongue being inside your vagina?' Answer, 'I have recollection of his tongue licking me up and down.' Question, 'But that's as much as you can say about it. Is that right?' Answer, 'That is correct.' Do you recall those questions and do you recall giving those answers?

WITNESS: I recall the questions and the answers.

COUNSEL: I put to you at that time, you were given the opportunity to an [sic] that question and say, 'No, I felt his tongue inside my vagina,' and you didn't. Right?

WITNESS: That's what woke me up. He licked me from my vagina to my buttock. That's why I felt that wet feeling all in that area.

COUNSEL: Again, my specific question was this. You had at the time been asked that question, those questions, the series of questions I've just put to you - the opportunity to say, 'I felt his tongue inside my vagina,' and you didn't take that opportunity at that time, did you?

WITNESS: What opportunity?

COUNSEL: To say, in answer to the questions that you have just heard that you did in fact feel his tongue inside your vagina?

WITNESS: His tongue was there, sir.

COUNSEL: That's not my question. My question is this. Did you feel it penetrate the vagina, feel the tongue inside the vagina, just like the question that you've just heard repeated to you from the previous hearing?

WITNESS: Well, maybe I didn't say it then, but I do recall feeling - when I felt I was weeing my bed, it was most probably because he was sticking his tongue inside my vagina, after licking me up and down, because it was wet all over that area.

COUNSEL: It was wet all over the area. That's your evidence. Right?

WITNESS: It was like I was wetting my bed.

23 In his evidence-in-chief Mr Agnello said that he did not think that the complainant had consumed any alcohol prior to driving his son home. He said that earlier in the day he had bought a slab of beer and given the complainant a six-pack from the slab. She had started drinking after she had got home but Mr Agnello was not sure how many beers she had consumed.

24 He said that the applicant had arrived at the house with a bottle of whisky which he thought was half full. He and the applicant had gone into the complainant's room on the evening of 4 September 2005 because she had a large television and a good stereo. While they were in the room they were drinking a mixture of Fanta and whisky and listening to music. He thought that the complainant had had a glass.

25 There was no sexual engagement between the applicant and the complainant and Mr Agnello did not recall the applicant and the complainant playing a hand game. Mr Agnello said that the complainant went to bed when he and the applicant went to buy some more alcohol and that it was approximately 6.30am when they returned. He had attempted to wake the complainant to see if she wanted to have another drink but she did not respond. Mr Agnello was asleep on a couch in the lounge room when he was awakened by the complainant's screams. The complainant said to Mr Agnello:

Why didn't you punch him? You should have killed the cunt. If it was your daughter who did that you wouldn't let him walk out. You should have hit him.

She then said 'he's a fucking pervert, I want to go to the cops'. She asked for his car keys in order to go to the police station. Mr Agnello saw the applicant who said he was lying next to the complainant and did not touch her. The applicant then left the house.

26 Mr Agnello said that the doctor arrived five or ten minutes after the complainant had told him over the phone that she had been raped and while the doctor was there, the complainant kept screaming. The complainant said that the applicant was 'licking her'. The applicant had returned to look for his mobile phone and Mr Agnello had told him to come back later as the complainant was screaming.

27 In cross-examination, Mr Agnello said that he had prevented the complainant from cutting her wrists before she had moved into the house and he had taken her to hospital. He said that the complainant did not start drinking until after 5.00pm but he did not know how many of the six cans of beer she had drunk. He did not recall there being any sexual 'banter' between the complainant and the applicant, and nor could he recall them playing a 'reflex hand game'.

28 Mr Caulfield said that at 7.00am Mr Agnello and the applicant woke him asking him to get up and have a drink. He said that they were 'well and truly pissed'. When he got up for work at 9.00am he saw Mr Agnello asleep on the couch. As far as he knew the applicant was not in the house.

29 The applicant was interviewed by the police on 19 September 2005 in relation to the allegation of rape. He said that he had been arguing with the complainant the night before and that she became offended. He denied that he had been involved in any sexual act with her. He said that the only physical contact he had with her during the previous evening was when they were playing a game with their hands. He also alleged that she had asked him to take his clothes off and she 'wanted to see everything'. He said that the complainant was 'not his cup of tea at all'. Later in the interview he said that he had gone in and tried to wake her up when he had come back with more alcohol and had fallen asleep on her bed.

30 A notice of agreed facts relating to the findings of a scientist employed with the Biological Examination Branch of the Victoria Police Forensic Services Department, Maxwell Jones, was tendered at trial. It was agreed that Mr Jones had received a vaginal swab taken from the complainant on 12 September 2005, and that biological reference samples were also received from the complainant and applicant. In the opinion of Mr Jones:

there was insufficient information in the DNA profile produced from the swab labelled 'vaginal skin swab' to enable me to conclude whether the donor of both reference samples [being the reference samples of the complainant and applicant] can be included or excluded as possible contributors of the biological material to this swab.

Ground 1 - The failure to direct the jury on the alternative verdict of indecent assault

31 By way of ground 1 counsel for the applicant submitted that the learned trial judge erred by failing to direct the jury that they could convict his client of the lesser offence of indecent assault, in the event that they were not satisfied that the element of penetration was established. It was accepted that defence counsel did not ask the trial judge to leave the lesser alternative count. Counsel nonetheless submitted that it was incumbent upon the trial judge to leave the lesser alternative offence to the jury and that as a consequence the applicant was deprived of a chance of acquittal of rape that was fairly open to him.

32 The lesser alternative, it was said, had to be left for two reasons. First, the evidence elicited from the complainant under cross-examination gave rise to a defence on the issue of penetration. Second, because defence counsel told the jury in his closing address that they ought to acquit the applicant if they were not satisfied that penetration had occurred, the jury should have been directed on this issue.

33 Some of the circumstances in which a trial judge will fall under an obligation to leave a lesser alternative count have already been the subject of consideration in decided cases. It is necessary to distinguish between those cases involving murder/manslaughter and other types of offences (such as rape/indecent assault as in the present case). In the case of an accused charged with murder, the High Court has said that where there is a viable alternative case of manslaughter, the interest of justice requires that alternative offence be placed before the jury. The failure to do so has the consequence that the jury has been wrongfully deprived of the opportunity to consider an intermediate position between conviction for murder and a complete acquittal. Failure to leave manslaughter in such a case will result in the verdict of murder being set aside.

34 The Court of Appeal has had occasion to consider the application of these principles to cases involving other types of offences. In R v Kane the Court considered whether the trial judge had erred as a result of a failure to leave to the jury the offences of intentionally or recklessly cause injury as an alternative to the more serious offences of intentionally or recklessly cause serious injury.[1] In that case, as in the present circumstances, trial counsel had not sought to have the lesser alternative put to the jury. Despite this failure, a majority of the Court (Callaway and Batt JJA) held that the alternative offences ought properly have been left to the jury.

35 Callaway JA based his conclusion on the course of the trial and the manner in which the evidence was put before the jury. His Honour referred to the circumstances in which a lesser alternative might be put, concluding:

I do not consider that every alternative verdict must be left to a jury. The answer to the question whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope for forensic judgments on the part of counsel. The test is what justice requires in the particular case. In this case the issue is whether the two alternatives of intentionally causing injury and recklessly causing injury (not other offences) should have been left in the case of the applicant, the evidence against whom was significantly different from that against the alleged co-offenders.[2]

36 Callaway JA explained the effect of the failure to leave the alternative verdict in that case:

In the light of the verdict, the relevant danger for this court is that the jury convicted the applicant on count 1 because they did not know that it was open to them to convict her of intentionally causing injury ... they were allowed to believe that they faced an 'all or nothing' choice on count 1. It is true that, if the jury dispassionately applied the directions the judge had given them about the meaning of 'serious injury', which are not criticised, they could not have wrongly convicted the applicant; but in Gilbert's case the majority preferred the view that, human nature being what it is, a jury may be deflected from their task, in some cases, by the presentation of a false alternative between conviction of a major offence and complete acquittal.[3]

37 In agreeing with Callaway JA, Batt JA made the following comments:

This case was, in my opinion, one where the state of the evidence and the course of proceedings, as was described by his Honour, were such that the interests of justice required the judge to leave to the jury the possibility of a verdict under one or other limb of s 18. I emphasise that my decision turns on the particular facts of this case, not upon some general proposition that all possible alternative verdicts must always be left to the jury whether or not defence counsel sought that at trial.[4]

38 The issue was again considered by the Court of Appeal in R v Saad.[5] At trial, Hany and Mary Saad had been found guilty of murder. On the appeal against that conviction it was argued by counsel for Mary Saad that the trial judge had erred in failing to leave the lesser alternative offence of 'assist offender' to the jury in relation to his client.

39 Nettle JA (with whom Chernov JA and Harper AJA agreed) analysed the High Court decisions in Gilbert v The Queen[6] and Gillard v The Queen,[7] and concluded that the majority's decision in Gilbert was not intended by their Honours to have application beyond murder cases in which the trial judge fails to leave an available case of manslaughter to the jury as a possible alternative verdict, and that the decision in Gillard did not alter this view.[8] After considering the judgments of Ormiston and Callaway JJA in Kane, his Honour came to the conclusion that:

even where the offence charged is one of murder, the question of whether the alternative charge of assist offender should be left to the jury is to be decided according to the general principle identified in R v Kane, of what justice requires in the particular circumstances of the case, and that in turn depends on all the circumstances of the case, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of the accused. That approach accords with the practice in England.[9]

40 His Honour then set out the principles to be applied by a judge when deciding whether to leave an alternative count to a jury, stating:

The authorities identify a number of factors as bearing on the issue of whether a lesser offence should be left to the jury as a possible alternative verdict. As the English Court of Appeal put it in R v Fairbanks:

'These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.'

Consequently, where the offence charged is grave and the alternative offence is trifling it may be better not to distract the jury by forcing them to consider something which is remote from the real point of the case. On the other hand, where the evidence is such that the accused ought at least to be convicted of the alternative offence, but the jury may be hesitant to convict the accused of the offence charged, the alternative should be left. Fairness to the accused may also require that the lesser alternative offence be left to the jury where there is a real chance that the jury would prefer to convict the accused of the lesser charge if it were an available option. Above all, however, one must keep in mind the course of the trial. Other things being equal the effect of forensic judgment on the part of counsel is likely to be one of the most important considerations ...[10]

41 Considering the facts of the case, Nettle JA noted that Mary Saad's counsel had submitted that they had run her case in a way that left open the possibility of an alternative verdict of a lesser offence, relying on a passage in defence counsel's closing address in which counsel put the question to the jury 'did Hany do this as a frolic of his own?'.[11]

I see nothing in the transcript of the trial which expresses or implies any idea that Mary Saad may have been involved only as an accessory after the fact. The only thing said which comes near that sort of analysis is the Delphic passage from the final address of counsel for Mary Saad which is set out above, and in my judgment that falls a long way short of the mark. Although it mentions the possibility of Hany Saad acting on a frolic of his own, there is no suggestion that Mary Saad assisted him after the commission of the offence ... As it appears to me, defence counsel was assiduous to avoid any suggestion that Mary Saad had participated as an accessory after the fact or otherwise lest it prejudice Mary Saad's chances of a complete acquittal, and I am strengthened in that conclusion by the fact that defence counsel plainly did not ask the judge to leave the offence of assist offender as a possible alternative verdict.[12]

Given what I perceive to be the overwhelming evidence of Mary Saad's guilt, the way in which the trial was conducted, and what I take to have been defence counsel's forensic decision that the jury should not be left with assist offender as a possible alternative verdict for consideration, I conclude that it was not contrary to the interests of justice that the offence of assist offender was not left to the jury as a possible alternative verdict. For the same reasons, I conclude that the judge did not err by failing to direct the jury that they had to exclude the possibility that Mary Saad was guilty of the offence of assist offender before they could convict her of murder.[13]

44 In R v Christy,[14] Kaye AJA, with whom Maxwell P and Kellam JA agreed, considered the decisions in Gilbert, Kane and Saad, and commented that:

In order to determine this appeal, it is not necessary for me to enter substantially upon the debate as to the reach of the principles stated by the High Court in Gilbert. Notwithstanding the differing views in the authorities, the common thread of those views is that, in certain circumstances, it may be necessary, in a case not involving a charge of murder, to leave an alternative lesser charge to a jury where such a course is necessary in the interests of justice. In particular, it may be necessary to leave such a lesser charge to the jury, where the course of the trial is such that it would be unfair to one or both of the parties not to do so.[15]

45 The principles applicable to a judge's obligation to leave an alternative verdict to the jury were again considered in the case of R v DD.[16] There the applicant was convicted of one count of incest. On the appeal it was submitted that the judge had erred by omitting to direct the jury that it was open to them to convict the applicant of the lesser alternative verdicts of attempted incest or attempted indecent assault. Chernov JA stated that:

there was no failure to direct the jury on alternative verdicts as claimed by the applicant. In the context of this case, attempted carnal knowledge was never a true alternative to the counts in question. Whether the applicant attempted to penetrate the complainant's vagina with his penis was never a real issue before the jury. If it had been, the trial judge would have been under an obligation to identify it and give appropriate directions in that context**.** It is true that it is for the trial judge to decide what are the real issues that are to be left with the jury, rather than that being determined by counsel. But the issue must be real and not merely remote or an artificial possibility. And in determining what are the real issues that must be resolved regard must be had to the conduct of the trial by the parties**.** Thus, as Gleeson CJ said in Doggett v R:

'...The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue.

The manner in which a trial is conducted, and in which the issues are shaped, especially where ... an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.'[17]

46 Neave JA, adopting the test set out in Nettle JA's reasoning in Saad, stated:

For the reasons given by Nettle JA, I agree that the principle in Gilbert does not require a trial judge to direct the jury on alternative charges to offences other than murder. However, as Nettle JA recognised, there will be cases where the circumstances of the case require a direction on alternative charges.[18]

47 The application was consequently refused. The court held that in the consequences of the particular trial, where the applicant had simply denied any sexual contact, and it was plainly open to the jury to be satisfied beyond reasonable doubt that penetration had occurred, no error arose from the trial judge's failure to direct the jury that it was open to convict the applicant of an attempt to commit incest or indecent assault.

48 The following factors bear upon whether, in the interests of justice, in cases other than murder/manslaughter, a lesser alternative offence should be left to the jury:

(1) the presence of evidence which raises the alternative offence as a real and not remote or artificial possibility;[19]

(2) reliance by a party upon such evidence in the course of the trial as evidence which is inconsistent with proof of one or more of the elements of the more serious offence;

(3) a real chance that the jury may convict the accused of the lesser offence; and

(4) a request by a party that the lesser alternative offence be left to the jury.

49 While the last of these factors may inform the trial judge's analysis of the real issues, the absence of such a request will rarely be decisive to the trial judge's decision. The responsibility for deciding what are the real issues to be left to the jury resides with the trial judge and not with counsel.[20] Where the trial judge is of the opinion that there is a real issue as to whether the prosecution has established an element of the more serious offence and, after discussion with counsel, considers that there is a real possibility that the jury could find the accused guilty of the lesser alternative offence, that offence should be left to the jury.

50 A failure by counsel at trial to request that the alternative lesser offence be left to the jury will generally assume great significance on an appeal if complaint is made for the first time that the lesser alternative offence was not left to the jury.[21] Counsel's duty was to assist the trial judge in discharging the obligation to give the jury such instructions as to the law as are necessary to enable the jury to decide the issues in the case.[22] The forensic decision to leave the jury with the stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence because the opportunity of a conviction on the lesser offence was not left to the jury. Similar considerations led the Queensland Court of Appeal in R v GS to conclude that there was no miscarriage of justice where the trial judge acceded to a request by counsel, on instructions, not to leave the lesser alternative.[23]

51 On this appeal, counsel for the applicant emphasised the fact that the issue of penetration had been raised by counsel. Although, a direction was not sought, the applicant's counsel did cross-examine the complainant and made a submission on that issue during his closing address. It was submitted that as the issue of penetration was a matter of factual dispute between the parties, the jury might have had a reasonable doubt as to whether penetration had in fact occurred.

52 Counsel for the Crown submitted that a forensic decision had been made not to expose the applicant to the risk of being found guilty of indecent assault.[24] That was acknowledged by counsel for the applicant. It was further submitted by the respondent that the jury had been clearly directed on the elements of the offence of rape and the meaning of 'sexual penetration' and 'vagina'. No issue was raised on the appeal in this regard. Moreover there was no suggestion that the trial judge had failed to clearly summarise the defence argument on the aspect of the complainant's evidence which was said to raise a doubt about this element of the offence. Thus it was submitted that the applicant had not been deprived of a fair chance of acquittal.

53 In our view the evidence was not such as to raise the alternative offence as a real possibility. It did not give rise to a real question as to whether there had been penetration. Moreover, counsel did not request that the lesser alternative be left to the jury.

54 The central issue raised by the defence was the reliability of the complainant. Her credibility was the subject of considerable attention under cross-examination by trial counsel for the applicant. She was questioned as to the amount that she had drunk on the evening before the offence, as to her mental state and as to whether her allegation of rape was a 'cry for help' because of her depression.

55 The questions directed to penetration were raised in cross-examination as part of the general attack on the plausibility of her account. They were raised in the context of testing her account of being asleep and then waking to find the applicant upon her and committing the act. In that regard there were said to be inconsistencies between her account at the committal and at trial. The purpose of this cross-examination appears to have been directed towards the plausibility of her account of waking only after penetration had occurred, and not while her pants were removed or when the act commenced.

COUNSEL: You were wearing at the time - just to remind myself and the jury if you don't mind, what were you wearing on the bottom when you went to bed? --- A pair of tights and my knickers.

COUNSEL: At no stage do you say that you were roused or awoken by those garments being pulled down. Right?

WITNESS: No. I woke up when George stuck his tongue inside my vagina.

COUNSEL: So is your evidence that you were not roused or awoken in any way by the removal of these garments?

WITNESS: I wasn't awoken by that time, no. I woke up thinking I was wetting myself but it was George's tongue inside my vagina.

56 Counsel for the Crown relied upon the fact that in both her evidence-in-chief at the trial, and in her cross-examination, the complainant said a number of times that she had been sexually penetrated. Although the complainant said at the trial that the wet sensation she experienced was 'most probably because the applicant was putting his tongue inside her vagina', she also said on numerous occasions that sexual penetration had occurred. This was not a statement by the complainant that penetration 'most probably occurred'. The witness was attempting to give a precise explanation as to why she experienced the sensation of wetness when she woke up. In cross-examination of the complainant, it was put to her that she may have been confused when waking up out of sleep. It was also put to her that her allegations against the applicant were 'a cry for help'. The complainant rejected both these propositions and continued to maintain that she had been sexually penetrated.

57 She admitted that at the committal hearing she had not explicitly said that she had felt the applicant's tongue inside her vagina. However she also said during cross-examination that when she woke up, she recollected his tongue 'licking me up and down' and that 'he stuck his tongue inside my vagina and that's what made me wake up'.

58 No attempt was made by defence counsel to link those questions to the definition of the element of sexual penetration. This is defined in s 35 of the Crimes Act 1958 as including the introduction 'to any extent' of a part of the offender's body into the 'vagina' of a complainant. Vagina is then defined as including 'the external genitalia'. The defence questioning was, at its highest, a colloquial question directed towards whether the applicant's tongue was 'in' her vagina. We do not consider that, in the context of the defence case, such questioning (or the complainant's response) raised the issue in any meaningful sense.

59 We conclude that no cogent evidence existed upon which a jury might have retained a reasonable doubt as to the element of 'penetration'. As we have said, the evidence was insufficient to support such a finding as a reasonable possibility. In those circumstances, we are satisfied that there was no error in failing to leave indecent assault as a lesser alternative count. In addition, counsel did not request that the lesser alternative be left. It was not suggested that this was other than a forensic judgement. That of itself would stand as a significant impediment to a conclusion that such a ground has been made out. This ground is not made out.

60 Counsel for the applicant contended that the conviction on rape was unsafe and unsatisfactory because there was an inconsistency between the complainant's evidence at the committal hearing and her evidence at the trial as to whether penetration had occurred.

61 Counsel drew attention to the answers given by the complainant at the committal that the applicant had licked her 'up and down' and at the trial that penetration 'most probably occurred'. This meant that even when all of the evidence was considered, there was no basis on which the jury could be satisfied beyond reasonable doubt that penetration of the vagina had occurred. Further, the circumstances in which the complainant claimed to have been aware of being penetrated were that she had awoken from a sleep after she had taken prescription medication and drunk alcohol the evening before.

62 It was also submitted that there was an inconsistency between the complainant's evidence that she had not woken from her sleep when the applicant came into her room, removed his clothes, got into her bed and lowered her tights and underpants and her evidence that she recollected an act of penetration. The complainant had said that the applicant had come behind her and it was difficult, it was said, to imagine that lingual penetration had occurred in these circumstances. Further, there was no medical or forensic evidence which assisted the Crown's case. Accordingly, counsel submitted that there was a doubt as to the element requiring penetration and this doubt was one which should have been experienced by a reasonable jury.

63 Finally, counsel drew attention to the fact that the jury had taken nearly two days to reach a verdict and had asked to view most of the complainant's cross-examination evidence before finding the applicant guilty of rape.

64 In M v The Queen[25] the High Court set out the test to be applied in deciding whether the jury verdict is unsafe and unsatisfactory:

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 or 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.[26]

65 In our opinion the conviction was not unsafe and unsatisfactory. As is set out above there was no cogent evidence upon which the jury might not be satisfied that penetration had occurred. Whilst counsel on the appeal emphasised what was said to be an inconsistency between the answers of the complainant at the committal and her answers at trial, that inconsistency was put to the complainant during the trial. As we have explained the complainant was steadfast in her statement that penetration had occurred.

66 Nor are we satisfied that there is any inherent improbability in the complainant's account that she had awoken to find the applicant penetrating her. It is not necessarily the case that a person would wake before finding themselves in the circumstances described, nor was there any physical impossibility in the act charged.

67 The jury was adequately directed on the requirement that penetration had occurred and his Honour summarised the evidence on that matter as follows:

Also, you will recall that she was asked about her evidence here compared to the committal in relation to the allegation of the tongue in her vagina. She was taken to her committal evidence. It was read to her which you will find at p.137 of this material, the transcript when you receive it shortly, and the question: 'And you have no recollection of his tongue inside your vagina?' 'I have recollection of his tongue licking me up and down.' These are the questions and answers at the committal. Question: 'But that's as much as you can say about it, is that right?' Answer: 'That is correct.' In her evidence, she was then asked about those questions and those answers and she said: 'His tongue was in my vaginal area and it's wet.'

Sexual penetration can include a number of different acts. But in this trial, sexual penetration means the introduction of Mr Nous' tongue into [the complainant's] vagina.

Mr Nous' tongue does not need to have gone all the way into [the complainant's] vagina. Even slight penetration is enough. However, there must have been penetration to some extent. This includes penetration of the external genitalia. That is the external lips of the vagina.

The prosecutor submits the evidence given by [the complainant] supports and should satisfy you beyond reasonable doubt that first element is proven.

Mr Kowalski submits, as you know, on behalf of the defence, nothing happened at all. No penetration whatsoever. Mr Kowalski further submits that even on, he says, her own evidence, you shouldn't be satisfied beyond reasonable doubt that the prosecution has proven that there was penetration of her vagina as it is defined by law.

Mr Kowalski says in her evidence and cross-examination, [the complainant] said she woke when the accused had his tongue inside her vagina. Mr Kowalski submits you shouldn't accept her evidence before you as reliable. In particular, when you consider he says her answers at the committal on this topic. You'll find it in detail at p.137 of the transcript when you receive it and there are a number of questions she was asked and answers she gave were put to her at the committal. Then she was asked about those answers and questions. Her evidence before you was 'Maybe I didn't say it then but I do recall feeling, when I felt I was weeing my bed, that it was most probably because he was sticking his tongue inside my vagina after licking me up and down because it was wet all over that area'.

Mr Kowalski submits her evidence in its totality, when you look at it, he says, does not prove this element beyond reasonable doubt, based on her own description. The prosecutor Mr Hammill, submits it does, that her description in any way she has described it, he submits, when she wakes, feeling his tongue inside her vagina and her description thereafter, at least refers to her external genitalia as defined in law, as being penetrated. The first element in issue in this trial quite apart from - the defence position is it didn't happen at all, no penetration. Mr Kowalski also said there was an issue with Count 1. Mr Kowalski says you should not be satisfied beyond reasonable doubt that he penetrated her sexually, as I have defined it. Mr Hammill said you should be satisfied beyond reasonable doubt on all her evidence that he sexually penetrated her in the way alleged, as I have defined.

69 In these circumstances, we consider that it was open to the jury to be satisfied beyond reasonable doubt that the applicant raped the complainant. Accordingly ground 2 fails.

70 The application for leave to appeal against conviction must be dismissed.

[1] [2001] VSCA 153; (2001) 3 VR 542 ('Kane').

[5] [2005] VSCA 249; (2005) 156 A Crim R 533 ('Saad').

[7] [2003] HCA 64; (2003) 219 CLR 1 ('Gillard').

[8] [2005] VSCA 249; (2005) 156 A Crim R 533, 560-1.

[14] [2007] VSCA 152; (2007) 16 VR 647.

[16] [2007] VSCA 317; (2007) 19 VR 143.

[18] Ibid 154 (citations omitted). See also R v Bui [2005] VSCA 300, [79] (Nettle JA).

[19] Saad [2005] VSCA 249; (2005) 156 A Crim R 533, 565; R v GS [2005] QCA 376, [44]-[45] (Fryberg J).

[20] Doggett v The Queen (2001) 208 CLR 343_; R v DD_ [2007] VSCA 317; (2007) 19 VR 143, 145-6 (Chernov JA).

[21] Saad [2005] VSCA 249; (2005) 156 A Crim R 533, 564 (Nettle JA).

[22] See as examples of defence counsel's responsibility R v Said [2009] VSCA 244; R v MacNeil [2008] VSCA 190; (2008) 20 VR 677; R v Cardamone [2007] VSCA 77; (2007) 171 A Crim R 207; Heffernan v The Queen [2006] NSWCCA 293, [31] (McClellan CJ at CL).

[23] [2005] QCA 376, [48] (Fryberg J).

[24] Attempted rape was another lesser alternative offence that was not pursued.

[25] [1994] HCA 63; (1994) 181 CLR 487.

[26] Ibid 493 (Mason CJ, Dawson, Deane and Toohey JJ).