R v S A B [2008] VSCA 150

Court of Appeal (Vic)|2008-08-29|Before: NETTLE, DODDS-STREETON JJA and MANDIE AJA

CRIMINAL LAW - Rape - Appeal against conviction of rape of ex-wife - Directions to jury - Whether judge erred by leaving counts of rape on an alternative basis not canvassed by Crown at trial - Evidence - Lies - Adequacy of directions to jury - Motive of complainant to lie - Whether failure to direct on suggestion that complainant was lying caused unfairness to accused - Appeal allowed and re-trial ordered.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 On 9 May 2007 the applicant was arraigned before the County Court at Melbourne on 18 counts of the rape of his ex-wife (Counts 3, 4, 6, 7, 12, 13 and 19 to 30); two counts of causing her injury recklessly (Count 1 and 5); three counts of assaulting her (Counts 2, 17 and 31); one count of assaulting their daughter (Count 15); four counts of threatening to kill his ex-wife (Counts 8, 10, 16 and 18); one count of kidnapping her (Count 9); one count of the false imprisonment of her (Count 11); and one count of reckless conduct endangering her life (Count 14), to all of which he pleaded not guilty.

2 At the conclusion of the Crown case, on 17 May 2007, the judge directed an acquittal on Count 4, 11, 17, 18, 23, 24 and 27 and the trial then continued on the remainder of the counts. The applicant gave evidence in which he denied the allegations of rape and assault and swore that he had never had non-consensual sexual intercourse with the complainant.

3 At the conclusion of the trial, on 28 May 2007, the jury returned verdicts of not guilty of Counts 1, 2, 7, 8, 9, 10, 12, 13, 14, 16, 21, 22, 25, 26, 30 and 31 but guilty of six of the counts of rape (Counts 3, 6, 19, 20, 28 and 29), one of the counts of causing his ex-wife injury recklessly (Count 5), and the count of assaulting their daughter (Count 15).

4 The applicant now seeks leave to appeal against conviction on grounds that:

The judge erred by leaving the counts of rape to the jury on an alternative basis on which the Crown had not relied.

The judge erred in failing adequately to direct on a suggestion that the complainant was lying or had a motive to lie.

The judge erred in failing to direct on prior inconsistent statements and to relate those directions to the evidence.

The verdicts are unreasonable or against the weight of the evidence.

5 In the presentment, each count of rape was pleaded in this form:

SAB at Footscray in the [State of Victoria] on [the alleged date] raped ABS by intentionally sexually penetrating her by introducing his penis into her vagina without her consent while being aware that she was not consenting or might not be consenting.

6 The pleading thus confined each count of rape to the kind of rape which was proscribed by s 38(2)(a) of the Crimes Act 1958.[1] It was not alleged that the applicant had committed the kind of rape proscribed by s 38(2)(b), of failing to withdraw on becoming aware that the complainant was not consenting or might not be consenting. Nor did the prosecutor make any reference to such a possibility in opening or final address, or seek to elicit from the complainant that the applicant had failed to withdraw on becoming aware that the complainant was not or might not be consenting.

7 In charging the jury, however, the judge gave written and oral directions to the effect that it was open to convict the applicant on the basis that he had penetrated the complainant while being aware that she was not consenting or might not be consenting or, alternatively, on the basis that, having penetrated her, he failed to withdraw on becoming aware that she was not consenting or might not be consenting.

8 Counsel for the applicant contends that the judge erred in thereby expanding the Crown case against the applicant in a way that was not open on the evidence or as a matter of fairness.[2] He argues that, given the way in which the Crown case was conducted at trial, the applicant was entitled to be acquitted unless the jury could exclude as a reasonable possibility that the complainant consented at the commencement of intercourse, or that the applicant was not aware of lack of consent at that time. As it was, however, he submitted, because of the alternative basis being left to the jury, there was a real risk that, despite having a reasonable doubt as to complainant's lack of consent or the applicant's awareness of lack of consent at the time of penetration, the jury may have convicted the applicant on the alternative basis of failing to withdraw on becoming aware that the complainant was not or might not be consenting.

9 In my view, there is force in counsel's submission. Leaving rape to the jury on the alternative basis of failure to withdraw could have resulted in at least some members of the jury convicting the applicant on that basis, despite not being satisfied beyond reasonable doubt that the complainant did not consent or that the applicant was aware that she was not consenting at the time of penetration.

10 Counsel for the Crown accepts that the judge should not have left the alternative basis of rape to the jury, but he argues that it would not have made any difference. In his submission, there was no evidence that the applicant failed to withdraw on becoming aware that complainant was not or might not be consenting and, therefore, he says, it is not reasonably possible that any member of the jury convicted on that basis. He adds that it is also significant that defence counsel did not take exception to the judge's directions concerning the alternative basis.

11 Contrary to that submission, however, there was some evidence in relation to most of the counts of rape that, during intercourse, the complainant either voiced objection or otherwise acted in a fashion inconsistent with consent. Thus, for example:

• In the case of Count 6, the complainant gave evidence in chief as follows:

What happened in the bedroom?---After that I didn't fight him. I didn't refuse. He - I remember - but I said, 'Don't. I'm in pain.' And he kept saying, 'Just keep it shut up.' He was laughing, he was smiling. 'Just be quiet. Don't scare the kids'.[3]

• In the case of Count 19, the complainant said this:

He put his penis inside you?---Yes, I was - and also I was in lots of pain and I told him, I begged him to stop hurting me. He said if I tried to move and enjoy it it wouldn't hurt.[4]

• In the case of Count 28, the complainant said this:

While the sex was going on were you doing anything or saying anything?---Yes, I was telling him, 'I'm going to the police. I have had enough of this', and he can't keep doing that.

What did he say?---He didn't believe me. He didn't thought [sic] I will.[5]

• In the case of Count 29, the applicant said this:

During that second occasion did you try and resist him having sex with you?---Yes.

How? What did you do?---I was trying to bite his hand but at the same time I was - I wasn't moving or I wasn't - I was trying to push him out. That was impossible because I was in the back - he was behind me and I couldn't move. Like one of his hands was holding everything of my body, the upper body?[6]

12 It is true that there was more evidence of lack of consent before penetration than of lack of consent during intercourse, and for that reason it is presumably more likely that the jury convicted on the basis of penetration with knowledge of lack of consent than on the basis of failure to withdraw. But even so, if the jury were in any doubt about the evidence of knowledge of lack of consent at the time of penetration, they could have used the evidence of subsequent manifestation of lack of consent (in conjunction the judge's directions as to the alternative basis on which they were entitled to convict) to reach the level of satisfaction required to convict; and given that the complainant and the applicant had a long term consensual sexual relationship before the first alleged offence of rape, and that the alleged offences of rape were punctuated by further instances of consensual sexual intercourse, it is at least possible that the jury were in doubt as to the significance of some of the evidence of knowledge of lack of consent at the time of penetration.

13 Arguably, there were some counts in relation to which the only evidence of lack of consent was of lack of consent at the time of penetration. Counts 3 and 20 are the principal examples. But even then, in the case of Count 20, the judge expressly directed the jury that they could use the complainant's evidence:

To satisfy yourself with respect [to] the accused either being aware that the complainant was not consenting, or aware that she might not be consenting, or aware that she might not be consenting, but decided to sexually penetrate her whether or not she was consenting, or failed to withdraw again in the way in which I have describe to you.[7]

14 Similarly, in the case of Count 3, although the judge said nothing directly about the alternative basis for conviction, her Honour gave the jury written directions which expressly stated that it was open to convict on that basis and then, immediately before giving oral directions specifically on Count 3, said this:

So I turn now to element 4,[8] that fourth element, as I have said to you, which relates to the accused's state of mind.

The prosecution must prove, beyond reasonable doubt, that at the time - at the time of the sexual penetration the accused was either aware that the complainant was not consenting or aware that the complainant might not be consenting, but decided to sexually penetrated her whether or not she was consenting, or failed to withdraw from his sexual penetration on becoming aware that the complainant was not consenting or might not be consenting.[9]

15 Then, a little later under cover of her specific directions on Count 3, her Honour added that:

The prosecution case as to the fourth element[10] is that you should be satisfied, beyond reasonable doubt, that Mr SAB was either on the evidence of the complainant as to what she did and what she said at the time, that she said 'no' that the prosecution say that you could be satisfied, beyond reasonable doubt, that Mr SAB was either aware that the complainant was not consenting because she said 'no' to him, or aware, having kicked her, on her evidence, that she was submitting to the penetration because of the fear of force to herself, or he was aware that she might be submitting for this reason, but decided to sexually penetrate her, regardless of this possibility.

16 Given the way in which the fourth element was defined in the written directions and the general oral directions, and the express mention of the fourth element in the directions relating specifically to Count 3, I think it is at least reasonably possible that the jury understood the fourth element to include the alternative basis of conviction for the purposes of Count 3.[11]

17 That leaves the point that defence counsel failed to take exception to the judge leaving the alternative basis of rape or otherwise to object to her Honour's directions concerning rape. In the circumstances of this case, I do not think that it makes any difference. It could not have assisted the applicant for the jury to be presented with the alternative basis for conviction. Therefore, I exclude the possibility of defence counsel having made a forensic decision not to do so. It was probably the result of an oversight and, in the circumstances of this case, the applicant should not suffer for that.[12]

18 In my view, the possibility that one or more members of the jury convicted on the basis of failure to withdraw means that the convictions on the counts of rape of which the applicant was convicted should not be allowed to stand.[13]

19 Under cover of Ground 2, counsel for the applicant contended that the prosecutor had so cross-examined the applicant as to whether the complainant was lying, whether the applicant could think of reasons why she might be lying, and whether he could offer an explanation of the complainant's injuries if the applicant were not responsible, as to cause the trial to miscarry. Strictly speaking, the argument was not within the scope of the grounds of appeal but, since the Crown did not object and counsel for the Crown was able to assist us with a detailed argument in response, it is appropriate to deal with it now.

20 Six passages of the cross-examination were identified as being at fault. The first, which was based on evidence earlier given by the complaint as to injuries which she said were caused by the applicant, was as follows:

Do you say that you never saw that injury on her eye in May 2001?---I didn't see it.

Let's assume for the moment Dr Lim is correct when he tells us that she [the complainant] had an eye injury and that he sent her off for x-rays because he was obviously sufficiently concerned about it. Can you advance any explanation to this jury how she got it, other than when she got hit about the eye?---I will tell you this, sir: my wife, in the presence of two mediators - - -

Well, tell me, if you didn't do it, can you advance any reason how she got that eye injury that Dr Lim told us all about? I didn't know sir. You've got no idea?---No idea.

Did the mediators - - -?---She was banging herself with the wall. That is what

Was she banging herself to cause her injury to her eye, was she?---Yes, she do. She punch herself - - -

She punched herself in the eye to cause herself that eye injury, did she? Is that what you're now telling us?---No, sir. Sir of my knowledge, honest facts - - -

No, no, is that what you are saying? She has punched herself in the eye to cause that injury?---I can't say that, but I don't know.

When she says it was caused by you hitting her in the face, she is telling lies about that, is she?---Yes, she is. If she say, '[SAB] did it to me,' or, 'My ex-husband did it to me,' she is lying.

Why would she lie about that?---She lie a lot of things - - -

Why would she lie about that?--- - - which I can prove to you.

Why would she lie about that?---I don't know. There is a lot of things behind that.

You're not suggesting she did it to herself, are you?---I can't suggest, but I didn't done it.

Can you think of anybody else who might have done it?---No, I can't think anybody else. If I would know, then if somebody did it to her I would confront her-confront that person.

So you just can't explain at all how that eye injury occurred?---I will explain something I know, but I can't explain something I don't know.

But in this regard, in regard to the eye injury, call it the black eye if you like of May 2001, you just can't explain at all how that happened?---My ex-wife is a pathological liar, sorry to say that. She could say her father is her uncle.

Let's get back to the questions I want to ask, and I'll ask you this: you heard her evidence where she said she got burned as a result of you putting her into the heater?--- I heard that evidence.

Why would she be lying about that?---She is lying. She wanted me to - cause me a problem.

Defence counsel then objected, and after some debate in the presence of the jury, the judge upheld the objection.

21 The second passage concerned a diary which the complainant swore she had written at the time of the events recorded in it. Among other things concerning the diary, the prosecutor asked the following questions to which the applicant gave the following answers:

So the diary for 2001 contains a whole lot of lies about what you were doing to her. Is that right?---I did say that.

You still say that do you, do you? Is that what you say?---Yes, sir.

22 The third passage concerned evidence given by Dr Lim of injuries which he observed when the complainant presented for examination on 17 November 2003:

Your wife said those injuries were caused to her by you?---I got back again - - -

No, just bear with me. You've made your speech. Now it's back to my questions. You heard Dr Wilkin's evidence where she found those injuries on your ex-wife?---Mm'hm.

Was Dr Wilkin telling the truth so far as you could work you?

Defence counsel then objected, and the prosecutor did not persist with the question. But a little later, the prosecutor asked the following further questions, to which the applicant gave the following answers:

Well, Dr Wilkin says she found them there. Can you advance any reason yourself as to how your wife would get those injuries that Dr Wilkin told us all about?---Sir, it's not denying, I don't know. I really don't know. I didn't [sic] aware about any of those sort of injuries or rapes till 8 December when I went to Altona police station to claim my property after they forced the door with Detective Bill Tzounos.

So you can advance no explanation - give the jury no explanation - of your own knowledge as to how your wife got all those injuries that Dr Wilkin told us about?--- I don't have no knowledge.

23 The fourth passage concerned evidence given by the complainant that the applicant had attempted to throttle her in the applicant's car:

You see, your ex-wife says that you were throttling her - had your hands around her throat - - -?---No.

- - - when your daughter intervened and scratched you in the face, screaming out or shouting out or saying very loudly, 'Daddy, don't, or words to that effect?---No, sir.

All a creation of your ex-wife's imagination, is it?---Yes, she could create a lot of things which I'm - - -

All right, so that's a pack of lies?- - - That's true.

24 The fifth passage concerned the complainant's evidence that the applicant had raped her on numerous occasions:

She has said that on numerous occasions you raped her, had sexual intercourse with her without her consent?---That's not true.

Each and every time she tells us about it is a lie?---I don't rape. I don't rape my wife. I don't rape no-one.

25 The final passage concerned the complainant's evidence that at one stage the applicant had come to her home and said that he had a new girl friend:

At the time you wrote these SMSs you had a girlfriend?---No.

I thought you were telling your wife that in fact you had a girlfriend?---No, that's not true.

Were you telling her that?---She said it, I don't know - - -

No, when you were separate and apart you came back and you were boasting in effect to her about a girlfriend you had. Was that truthful or not by her?---No, that's not true.

She's made all that up, has she?---Yes, she is [sic].

26 Counsel for the applicant submitted that each passage was objectionable to the extent that it either enquired of the applicant whether the complainant was lying or invited the applicant to suggest a reason as to why the complainant would lie.

27 I accept that submission in part. In the bulk of cases, both forms of question would be objectionable: the former because it has the 'tendency to deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the [applicant], in accordance with burden and standard of proof borne by the Crown';[14] and the latter because to ask an accused or other witness why another witness might lie invites the jury to speculate, is unfair to the accused, who is not in a position to see into the mind of the Crown witness, and may undermine the onus of proof and is irrelevant.[15] In this case, however, defence counsel cross-examined the complainant at length to the effect that she had a motive to lie, and the applicant gave evidence in chief in support of the existence of that motive. It was a major part of the defence case that the complainant was lying because of the applicant's attitude towards her dealings with Centrelink and the Immigration Department. For that reason, I consider that it was permissible for the prosecutor to test the applicant's evidence as to motive and to impugn it if he could and to some extent such an exercise was bound to involve questions to the effect of whether the applicant really contended that the complainant was lying and had the motive to lie which he imputed to her, and as to the basis on which he so contended.

28 That said, however, in my view the prosecutor in this case did go too far. None of the passages of cross-examination which is set out above was linked to the motive to lie which was asserted by the applicant. There were none concerning the problems over Centrelink or Immigration. Nor do any of the them appear as preliminary to questions concerned more directly with those matters. In form and effect, they appear to have been simply questions in the air, and often strident at that, of the kind which in Palmer[16] and Rich[17] were held to be objectionable. That impression is confirmed by viewing the videotape of the whole of the cross-examination, as I have done. It is replete with comments and antics of the kind of which the High Court disapproved in Libke v The Queen[18] and, in contradistinction to the position in Libke, they appear as calculated to have made the jury follow an impermissible path of reasoning[19] and as unlikely to have generated sympathy for the accused.[20]

29 Counsel for the applicant further submitted that, even if the prosecutor had not gone too far, it was critically important for the judge to direct the jury as to the use which they could and could not make of the applicant's answers to the impugned questions, and in particular to direct the jury that they were not to decide the case according to whether they accepted or rejected the suggested motive to lie, but rather according to whether the evidence satisfied them beyond reasonable doubt of the guilt of the applicant. In counsel's submission, the judge failed to do that in at least four respects:

First, her Honour failed to direct the jury that, if the applicant did not know or proffer a reason for the complainant to lie about something which she alleged, or if he proffered a reason which the jury rejected beyond reasonable doubt, the finding could not advance the Crown's case.

Secondly, she failed to make clear that the complainant may have had her own reasons for lying, reasons unknown to anyone but her, or that people sometimes lie for no reason.

Thirdly, she failed to direct the jury that, unless they could reject beyond reasonable doubt the motive to lie which the applicant attributed to the complainant, they must take the suggested motive into account in favour of the applicant.

Fourthly, she failed to direct that if the jury could not exclude beyond reasonable doubt some of the aspects of the evidence of BW, to the effect that the complainant had admitted to him that she had not been raped, they should acquit the applicant on the counts to which the admission related.

Fifthly, she failed to direct the jury in accordance with Liberato v The Queen.[21]

30 Taking those points in turn, it appears to me that there is substance in the first. Her Honour's direction on the question of motive to lie were in these terms:

Having gone through with you that part of the evidence which relates to issues that were raised about the complainant's, BSA, motive to lie there are some very important directions on the law that I have to give you about that. They were raised by the accused but you must remember that the accused does not have to prove anything, as I have said to you. That includes not having to prove - he does not have to prove any motive on the part of the complainant.

So even if you reject the motive suggested on behalf of the accused that does not necessarily mean that the complainant is telling the truth. It is one factor to take into account in deciding whether the prosecution has satisfied you beyond reasonable doubt that the complainant is telling the truth that the offences happened as alleged.[22] As to the background to each of these counts left on the presentment I am going to turn to those now, to each of those counts and go through them in this way.

31 To some extent that direction followed the form of a passage from the judgment of Hunt CJ at CL in Uhrig,[23] to which Brennan CJ and Gaudron and Gummow JJ referred with approval in Palmer v The Queen,[24] as follows:

It is necessary to distinguish between cross-examination of a witness as to the motive of that witness to lie and cross-examination of another witness designed to show that that witness does not know of any fact from which to infer that the first witness had a motive to lie. The distinction was referred to in the context of a criminal trial by Hunt CJ at CL in another passage from his judgment in Uhrig:[25]

What this Court said in Regina v F and in Regina v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all.[26]

32 The difficulty, however, is that her Honour then went on with this addition:

It [scil. rejection of the suggested motive to lie] is one factor to take into account in deciding whether the prosecution has satisfied you beyond reasonable doubt that the complainant is telling the truth that the offences happened as alleged.

33 That was incorrect. As was said in Palmer, the absence of a motive to lie 'is entirely neutral'.[27] It is only the acceptance of a motive to lie which may be taken into account in deciding whether or not the Crown has proved guilt beyond reasonable doubt.

34 Counsel for the respondent submitted that the 'It' at the beginning of the addition referred back to the 'motive to lie' earlier mentioned and hence that the effect of it was that, even though the jury might reject the motive to lie, the motive to lie remained as something which they could take into account, in effect in favour of the applicant. But in my view that is plainly not so. The ordinary sense of the words is that the 'It' refers back to the clause 'that does not necessarily mean' in the preceding sentence, and in turn that clause refers back to the possibility 'if you reject the motive to lie' which is referred to in the preceding sentence. Thus, I consider that the direction created a real risk of the jury proceeding upon an improper basis.

35 I doubt that there is anything in the second point. I am not persuaded that it was necessary for the judge to tell the jury that the complainant may have had an unknown reason to lie or that people sometimes lie for no discernible reason. Given the facts of the case and the cross-examination of the complainant, I should have thought it was an obvious possibility that the complainant may have lied for reasons unknown or for no reason. It is true that reference to such a possibility is ordinarily included in a Palmer direction and, with respect, it would have been advisable for the judge in this case to include such a reference in her directions. But of itself, I do not think that the absence of the reference to the possibility would have been sufficient to make a difference.

36 I reject the third point. The jury were adequately directed on the burden and standard of proof. Those directions made plain that it was not open to convict the applicant unless the jury were satisfied beyond reasonable doubt of the truth of the complainant's testimony. So far as my researches go, it has never before been held that there is an independent requirement for the jury before convicting to be satisfied beyond reasonable doubt that the suggested motive to lie was unacceptable; still less that if they were not so satisfied that failure to reject the suggested motive to lie beyond reasonable doubt must be taken into account in favour of the applicant. Counsel was unable to identify any authority to that effect.

37 In terms of principle, too, the idea has little to commend it. A motive to lie is a circumstantial fact and, according to ordinary principles of circumstantial evidence, a circumstantial fact should in most cases be considered as part of the totality of the evidence and thus accepted or rejected without applying a particular standard of proof to the issue.[28] The question would simply be whether, on the basis of the evidence as a whole, including evidence of the suggested motive to lie, the jury were satisfied beyond reasonable doubt that the accused is guilty.[29] Perhaps, it would be different in a case in which there was no evidence apart from the complainant's testimony and the suggested motive to lie. In such circumstances, the suggested motive to lie might be seen as an essential link in the chain of reasoning leading to the jury's conclusion.[30] But that was not this case.

38 I also reject the fourth point. BW gave evidence that he met the complainant in November 2001, and on a number of occasions in 2003, and that she told him that she was missing the applicant and that, unless the applicant came back to her, she would fabricate a story to put him in gaol. BW's evidence was therefore evidence of motive, and for the reasons already given, I consider that the jury were entitled to accept it or reject it without applying a particular standard of proof to it and yet conclude that, when they considered it together with the other evidence, the applicant was or was not guilty.

39 The fifth point is of greater substance. The circumstances in which it is necessary for a judge to give a jury a Liberato direction were recently considered by this court in R v KDY.[31] Redlich JA, who delivered the principal judgment, said this:[32]

What has become known as a Liberato direction is not required as a matter of law.[33] ... [but] the so called 'Liberato direction' has been said to be an appropriate one in many cases 'where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence on which the accused relies can give rise to a reasonable doubt as to his guilt only if they believe that evidence to be true.'[34] Both dissenting judgments in Liberato emphasised that the answer to such a question must be accompanied by clear and unequivocal directions about the criminal onus and standard of proof so that there is no risk that the jury will treat the making of a 'choice' between the witnesses as the real question[35] or as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving.[36] The judgments were not intended to lay down a particular form of direction in relation to the onus and standard of proof but to ensure that the clarity and effectiveness of directions of law on the onus and standard of proof are not compromised by any directions concerning the issue of choice between witnesses who have given conflicting evidence.[37]

A jury must be left in no doubt that where there is a conflict between prosecution witnesses and the accused, the question is whether the prosecution proved its case beyond reasonable doubt and not whose evidence is to be preferred.[38]...

40 In this case, the judge gave clear directions about the criminal onus and standard of proof and, as part of that exercise, her Honour explained the difference between the criminal and civil standards of proof, as follows:

As I said to you at the beginning of the trial the standard of proof in this case is to be distinguished from the standard of proof which applies in a [civil] case...

In such a case, a civil case, where there are two competing versions of what happened, a jury decides that - if there is a jury - by applying a standard known as the balance of probabilities. That is at the end of a civil case the jury is asked to come to a view based on which version of events is more probable.

That margin sometimes is expressed as is fine as 49/51, that balance in that balancing exercise, the balance of probabilities. I stress to you and direct you as a matter of law there is no such balancing exercise in a criminal trial. You are not choosing between one account or the other, you only concentrate at all times on one question, have the Crown proved beyond reasonable doubt the guilt of the accused with respect of each of these charges, or any of them? [39]

41 But those directions were given early in the charge[40] and the next day, considerably later in the charge, the judge summarised the evidence relating to each of the counts of rape (except Counts 28 to 30) by contrasting the complainant's evidence concerning that count with the applicant's evidence on the count.[41] Thus in effect, at that later stage of the charge, her Honour invited the jury to make a choice between the complainant's evidence and the applicant's evidence on a count by count basis. In those circumstances, I consider that the jury could have been led to think that the applicant's evidence on a count could not give rise to a reasonable doubt as to his guilt on that count unless the jury preferred his evidence to the evidence of the complainant.

42 There is a difference in the case of Counts 28 to 30, because the judge summarised the complainant's evidence referable to each count without saying anything about the applicant's evidence concerning that count. But even so, because Counts 28 to 30 were dealt at much the same time as the others, and because of the risk of the jury translating the process of reasoning applicable to one count to another, there is a real risk that they may have reasoned in the same way on those latter counts.

43 In the result, and despite the clear directions on burden and standard of proof given earlier in the charge, I consider that this was a case in which the comparison of evidence on each count should have been accompanied by some further 'clear and unequivocal directions' about the criminal onus and standard of proof, or at least some further direction sufficient to obviate the risk of the jury treating the making of a 'choice' as the real question. More precisely, in my view, it was necessary for the judge to tell the jury at the point of the comparison of the evidence or at some other convenient proximate place in the charge that, even if they preferred the evidence for the Crown, they should not convict unless they were satisfied beyond reasonable doubt of the truth of that evidence and that, even if they did not positively believe the evidence for the defence, they could not find an issue against the applicant contrary to that evidence if that evidence gave rise to a reasonable doubt as to that issue.[42]

44 BW gave evidence that, in 2003, his friend the complainant told him that she was really sad because the applicant had left her again; that she would do anything for revenge; that, if he did not come back, she would put him in gaol; that she wanted to make up a story about rape; and that he never raped her or put a hand on her.[43] The complainant had given evidence that, although she knew BW and regarded him as a friend, she did not remember having a conversation with him about why she had broken up with the applicant. She denied telling BW that she was thinking of putting the applicant in gaol if he did not come back; or that he had never raped her; or that the applicant either comes back or goes to gaol.[44]

45 TD gave evidence for the defence[45] that he had participated in mediations between the complainant and the applicant in 2001, 2003 and 2004, and that during the mediation in around August 2003 the complainant's complaints had been about the applicant's threat to tell Centrelink about the complainant's activities and to call Immigration about what the complainant had told Immigration concerning her mother's immigration.[46] The complainant had given evidence that, although she thought of TD as a friend and that he was involved in mediations,[47] she denied that she and the applicant ever argued over Centrelink matters[48] and said that they had not argued over immigration matters until after she left the applicant at the end of 2003.[49]

46 Counsel for the applicant submitted that the judge was in error in failing to direct the jury that BW's and TD's evidence was evidence of the complainant's prior inconsistent statements and that, although the prior inconsistent statements could not be treated as evidence of the facts in issue, they were something which the jury could take into account.[50]

47 That submission is not persuasive. BW's and TD's evidence was led to prove that the complainant had a motive to lie and, as already noted, the judge specifically directed the jury on the consequences of a motive to lie. Possibly, their evidence could have also been relied upon as evidence of prior inconsistent statements. But defence counsel did not seek to do so or seek any direction to that effect. So, it could not be said that the failure of the judge to direct the jury on the effect of prior inconsistent statements resulted in an important part of the defence not being adequately put to the jury.[51] Further, as counsel for the respondent submitted, if the jury accepted BW's evidence that the complainant had admitted that she had not been raped, they would undoubtedly have rejected the complainant's evidence out of hand. Contrastingly, if they rejected BW's evidence, there was no proof of any prior inconsistent statement. In the result, even if the judge had directed the jury on the use to be made of prior inconsistent statements, it would not have made any difference.

48 Counsel for the applicant put his submissions under Ground 4 in two ways. First, he contended that it was not open on the evidence for a jury properly instructed to be satisfied beyond reasonable doubt of the applicant's guilt of the counts on which he was convicted. More particularly, he submitted that, in circumstances where the complainant conceded that the alleged offences were interspersed with periods of consensual sexual intercourse; BW had given evidence of admissions by the complainant that her allegations were fabricated; and TD had deposed that the only thing about the applicant of which the complainant had ever complained during mediation was the applicants' attitude towards her dealings with Centrelink and her correspondence with the Immigration Department concerning her mother, it was not open to reject the applicant's sworn denials of the complainant's allegations of rape.

49 I do not accept that submission. Without passing judgment on BW's credibility or reliability as a witness, it is apparent from an examination of his testimony that there were several rational bases on which the jury might have chosen to reject his evidence. It is also sufficient to say of TD's evidence that, even if the jury accepted it, it was not inconsistent with the complainant's allegations; especially given that it was not until after the bulk of the mediations that the complainant learned that she had a legal right to complain about non-consensual sexual intercourse with the applicant.

50 Secondly, counsel for the applicant argued in the alternative that, even if there were evidence sufficient to sustain findings of guilt beyond reasonable doubt, the conviction of the applicant on some counts of rape and his acquittal on others bespoke an irrational or otherwise unacceptable process of reasoning.

51 I reject that argument. As counsel for the respondent submitted, the difference between the counts on which the applicant was convicted and those on which he was acquitted was by and large that on the counts on which he was convicted there was independent or objective evidence which supported the complainant's testimony or some other significant differentiating circumstance. Thus:

There was no supporting evidence in the case of Count 3, but the offence the subject of that count was singular in that it was the first of the alleged rapes and occurred on 18 May 2001 during a period of separation which commenced in January of that year. The applicant's only defence was a simple denial of the event. The jury convicted the applicant of that count.

In the case of Count 4, the judge directed an acquittal because the complainant did not give evidence concerning that count.

Counts 5 and 6 alleged offences which occurred on 21 May 2001, after the event the subject of Count 3. The complainant swore she had been struck to the face by the applicant and raped. The following day she had consulted Dr Lim, who recorded that the complainant had some marks on her face which consisted of a bruise over her right eye socket and upper nose. Dr Lim also gave evidence in which she described the bruises as moderate and as being consistent with a punch or something of that nature. He opined that the bruises probably occurred within one or two days of his examination and, according to his note, the complainant had said on presentation that the injuries occurred the night before and she was distressed and in pain. The jury convicted the applicant of both counts.

Count 15 alleged an assault on the applicant's daughter. According to the complainant the assault occurred while she was arguing with the applicant near to or in his car. The child was present and became distressed as a result of the argument and scratched her father's face. According to the complainant, the applicant reacted by striking the child which caused her to vomit in the car. When police interviewed the applicant, they noticed a scratch under one of his eyes and when they searched the applicant's car they found vomitus in the front passenger foot well. The jury convicted the applicant of that count

Counts 19 and 20 alleged offences which occurred two days after the complainant had undergone a termination of a pregnancy. The complainant gave evidence of making a complaint to Maria Glory and Ms Glory gave evidence to the same effect. The jury convicted the applicant of both counts

Count 21 alleged an offence on the day following the offences the subject of Counts 19 and 20 and the jury acquitted the applicant on that count. Presumably, the jury concluded that it was alleged to have been committed after and therefore was not the subject of the complaint to Maria Glory.

Counts 28 and 29 alleged offences which occurred on the day before the complainant went to the police and the police referred the complainant to Dr Wilkins for examination. Upon examination, Dr Wilkins found evidence of rough handling consistent with the complainant's allegations. The jury convicted the applicant of both counts.

Count 30 alleged an offence which occurred on the same night and after the offences the subject of Counts 28 and 29. The jury convicted the applicant on Counts 28 and 29 but acquitted him on Count 30. But one possible explanation of the disparity is that in the case of Count 28, the complainant gave evidence of saying to the applicant that 'I'm going to the police. I have had enough of this';[52] and in the case of Count 29, she gave evidence of saying to the applicant, 'I'm

going to the police. Don't do it. I'm serious this time'.[53] In the case of Count 30, she did not give evidence of having said anything to the applicant. There are also other reasonable explanations based on the different nature and details of the sexual acts alleged in each case or alternatively, as counsel for the respondent submitted, it may be that the jury thought that justice was met by only convicting the accused on Counts 28 and 29.[54]

52 In my view, the judge's misdirection as to the alternative basis for conviction on the counts of rape, and her Honour's failure to direct the jury in accordance with Palmer and Liberato, necessitates that the convictions on each count be quashed. I would order that a new trial be had.

53 I have had the benefit of reading in draft the reasons of Nettle JA, with which I agree.

[2] R v Torney (1983) 8 A Crim R 437, 438; R v Nguyen [2006] VSCA 293, [20]-[31].

[8] Element 4 was defined in the written directions as pertaining to the accused's state of mind.

[11] And the same is true of other counts.

[12] Cf Doggett v The Queen (2001) 208 CLR 343, 347 [9] (Gleeson CJ, in diss); TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 128 [8] (Gleeson CJ) and 123 [25]-[26] (Gaudron J); R v Perrier [2008] VSCA 97, [50]; and see R v Vrabcenjak [2008] VSCA 143, [72] (Ashley JA).

[13] R v Galas & Mikhael [2007] VSCA 304, [16].

[14] R v Rich (1998) 102 A Crim R 165, 170; R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 218 [9]; R v Bajic [2005] VSCA 158; (2005) 12 VR 155, 169 [74]-[78].

[15] Palmer v The Queen (1998)193 CLR 1, [7]-[10]; R v Cupid [2004] VSCA 183, [28]; R v Bajic [2005] VSCA 158; (2005) 12 VR 155, 169 [77].

[18] [2007] HCA 30; (2007) 230 CLR 559, 577 [37]-[39] (Kirby and Callinan JJ in diss, but not in point of principle), 588 [79]-[82] (Hayne J) and 598 [121]-[133] (Heydon J).

[23] (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, [Hunt CJ at CL, Newman and Ireland JJ] 24 October 1996).

[25] (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, [Hunt CJ at CL, Newman and Ireland JJ] 24 October 1996), 16-17.

[28] HML v R [2008] HCA 16; [2008] 245 ALR 204, 215 [32] (Gleeson CJ, in diss, but not in point of principle).

[29] Cf Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210.

[30] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 584-585 (Dawson J).

[33] Salmon v R [2001] WASCA 270 (Unreported, Malcolm CJ, Kennedy and McKechnie JJ, 30 August 2001) [99]-[103] (McKechnie J); R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300, 328-9 (Heydon JA, Sully and Levine JJA); R v Burt [2003] NSWCCA 248; (2003) 140 A Crim R 555, 564 (Wood CJ at CL); R v Niass [2005] NSWCCA 120 (Unreported, Hunt AJA, Grove and Hall JJ, 4 April 2005); R v Yusuf [No 2] [2006] VSCA 117 (Unreported, Chernov, Vincent and Redlich JJA, 17 May 2006) [11] (Chernov JA).

[34] R v Niass [2005] NSWCCA 120, (Unreported, Hunt AJA, Grove and Hall JJ, 4 April 2005) [28] (Hunt AJA).

[37] Miles v R [2000] WASCA 364 (Unreported, Wallwork, Murray and Miller JJ, 22 November 2000) [14] (Murray J).

[38] R v Rodriguez [1998] 2 VR 167; R v Pearson (Unreported, Supreme Court of Victoria, Phillips CJ, Southwell and Vincent JJ, 5 June 1995) 14 (Phillips CJ, Southwell and Vincent JJ); R v Cascone (Unreported, Supreme Court of Victoria, Phillips CJ, Charles and Buchanan JJA, 4 June 1998).

[42] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan, J, in diss, but not in point of principle).

[48] T 259-260, 290-291, 293, 299 and 303.

[50] Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 536; R v Taylor [2004] VSCA 189; (2004) 10 VR 199.

[51] Cf Schmahl v R [1965] VicRp 95; [1965] VR 745, 748 and 750.

[54] Mackenzie v The Queen (1996) 190 CLR 348, 367-8.

At a glance

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Judgment (165 paragraphs)

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Cases Cited (12)