R v Soldo [2005] VSCA 136

1 I agree with Eames, J.A.

2 There is only one point that I wish to add. The learned judge began his description of the elements of rape by saying that there were three elements, namely "the act of sexual penetration", "the lack of consent on the part of the complainant" and "the guilty mind of the accused". Juries are often charged in those terms, but it might be better to use the language of s.38(2)(a) of the Crimes Act 1958. The judge might say, for example:

"A person commits rape if he intentionally sexually penetrates another person, without that person's consent, while being aware that the person is not consenting or might not be consenting. There are therefore three elements. The prosecution must prove: first, that the accused sexually penetrated the complainant and did so intentionally; secondly, that he penetrated the complainant without her consent; and, thirdly, that, when he did so, he was aware that she was not consenting or might not be consenting."

3 Each element would then require elaboration, as the standard charge contemplates, but the elements would be accurately stated in the statutory language and the jury would not be left to wonder, until later in the charge, what was meant by "the guilty mind of the accused". They would know, right from the beginning, that the Crown had to prove that the accused was aware that the complainant was not consenting or might not be consenting. In a case like this, the critical issue is likely to be whether the Crown has discharged the burden of proving that element beyond reasonable doubt. In all cases, but especially in such a case, it is important that the jury understand that, even if the complainant was in fact not consenting, there is still another element to the offence.

4 The applicant seeks leave to appeal against conviction and sentence following a trial and sentencing in the County Court. The applicant had stood trial on a presentment containing one count of false imprisonment (which carried a maximum sentence of 10 years' imprisonment), two counts of indecent assault (maximum sentence 10 years' imprisonment), and nine counts of rape (maximum sentence 25 years' imprisonment). All of those offences were alleged to have occurred at the flat occupied by the applicant on 30 July 2001. In the course of the trial the jury were directed to return a verdict of not guilty on one count of rape (count 7). The jury returned verdicts of guilty on all remaining counts on 19 February 2004.

5 After the jury had returned its verdicts the applicant pleaded guilty to an additional count of common assault which had been severed from the presentment on which the applicant stood trial. The offence constituted by that count took place on 25 June 2002, once again at the premises of the applicant.

6 With respect to the offences committed on both occasions the victims were prostitutes working through escort agencies to whom they paid a commission.

7 On 27 August 2004 a judge of the County Court sentenced the applicant to eight years' imprisonment on each of the eight counts of rape (counts 2, 4, 5, 8, 9, 10, 11 and 12), to two years' imprisonment on one count of indecent assault (count 3) and three years' imprisonment on another count of indecent assault (count 6), and to four years' imprisonment on the count of false imprisonment (count 1). On the severed count of common assault the applicant was sentenced to two years' imprisonment. His Honour directed that one year of that sentence be served cumulatively upon the sentence of eight years on count 9, one of the rape counts. The total effective sentence was nine years' imprisonment and his Honour ordered that the applicant serve six years' imprisonment before being eligible for parole. His Honour declared that 191 days pre-sentence detention had been served.

8 Pursuant to Part 2A of the Sentencing Act 1991 the applicant was sentenced as a serious sexual offender on all, save the first two instances, of the counts of rape on which he was convicted.

9 The first offences occurred on 30 July 2001. The applicant telephoned the Cloud Nine escort agency in Doncaster and spoke to a receptionist known as Ms Buddy Gos. Ms Gos knew the applicant to be a regular client of the agency. He asked for a woman to be sent to his premises who would provide services of "B & D", that is, bondage and discipline.

10 There was substantial conflict between Ms Gos's account and the account given in the record of interview of the applicant as to what was discussed between them. According to Ms Gos she told him that the bondage would have to be very light and he would not be allowed to tie up the escort under any circumstances. She said that the escort would have to be comfortable and able to stand up and walk away. She told the applicant that he could not tie the escort's hands but he could put something around them for visual effect. The applicant agreed to those conditions and a fee of $200 per hour for a two-hour booking was agreed. Ms Gos then called the complainant who agreed to accept the job.

11 In her evidence the complainant said Ms Gos told her that the job involved a regular company client who wanted bondage for two hours, but that it was to involve the client being tied up, and not her. She said she sought assurance that she was not going to be hurt and would not be tied up, because she had never done bondage before. Ms Gos assured her as to those matters. In cross-examination she later conceded that she had been told by Ms Gos that the applicant had tied the hands of another sex worker as part of a sexual service.

12 Having arrived at the applicant's premises and had an initial discussion with him the complainant rang Ms Gos from the applicant's premises at about 3am, to advise that everything was satisfactory. Ms Gos next heard from the complainant at about 5.30 a.m. when she arrived at the escort agency crying and hysterical.

13 The accounts of the complainant and the applicant as to the conduct which took place between them at the applicant's home were in substantial agreement as to the sexual and bondage activities which transpired. Where they differed was as to whether those activities were the subject of agreement between them and consent by the complainant. In denying that she had consented to those activities the complainant was lying, so the applicant contended. Although the primary defence was that the complainant was lying, the alternative defence was left open that if she was not consenting then the applicant did not know that to have been the case and his belief that she was consenting was reasonably held. Given that there was agreement as to many of the activities it was on the critical questions of consent and belief as to consent that the attention of the jury had to focus. Notwithstanding the common ground as to many of the activities that took place it was necessary that the jury appreciate where the versions of events diverged, and the significance of the divergences. Likewise, it is necessary to set out those matters so that the complaints raised by the grounds of appeal may be appreciated.

The complainant's account

14 The complainant said that when she arrived at the applicant's flat she remembered that she had performed services as a prostitute for him on a previous occasion. On that occasion she had provided a massage, oral sex and vaginal sex, but not bondage.

15 The complainant told the Court that when she arrived at the applicant's premises they discussed the fee and the services she was to perform and it was agreed that at a cost of $200 per hour she would provide a massage and both oral and vaginal sex and for an extra $50 per hour she would perform bondage. According to the complainant she told the applicant that she had never done bondage before and that she would refund his money if he was not satisfied or if it was uncomfortable for him. When discussing the services to be performed she told the applicant that she was not to be tied up. The applicant agreed to that and after placing pillows and blankets on the floor proceeded to massage the shoulders of the complainant but then placed two ties loosely around her elbows behind her. She asked him to take them off but he then placed a "dog-collar strap" around her elbows and pulled it tight. She told him to remove it but instead he tightened the straps. He then tied her arms with other neckties, between her elbows and down to her hands. Despite her persistent request for him to remove the ties he refused and then tied her head with silver electrical tape and forced a pair of socks into her mouth. She asked him to stop and offered to give him his money back but she was told to "do what you're told". He then pulled her legs back so that her knees were bent and the heels were against her buttocks. He placed ties around her legs from her ankles to her thighs and then taped over the ties. He then tied her legs to her hands behind her back and carried her into the lounge room.

16 The complainant said that the applicant then threw her onto a couch and raped her with two fingers entering her vagina. He then asked her if she did anal sex, to which she shook her head. He was then pinching, twisting and biting her nipples and penetrating her vagina and anus with his fingers. He removed the tape which was over her mouth and the socks which he had placed in her mouth and asked if she did anal. She said no. He then returned the sock into her mouth and taped her mouth then put his finger and thumb into her anus and then into her vagina. He poured oil over her then once more removed the sock and asked her if she did anal to which she said "I don't do it". He said, "Shut your mouth, you'll like it". He then replaced the sock and entered her vagina and anus with his penis and then placed his penis into her mouth and she bit it. He then attempted to tongue kiss her but the complainant refused to allow him. The complainant said that during this attack the accused stabbed her to the vagina, anus and breasts with pins, and had mutilated her vagina and also her anal area and her arms had been cut and bleeding.

17 She asked the applicant if she could go to the toilet and he untied her legs and walked her to the toilet, her arms still being tied and the sock was in her mouth. The applicant stood in front of her whilst she was on the toilet and stabbed her in the breast with a pin. As she urinated, he placed his hands in the toilet and splashed her urine over her. He then wiped her vagina and anus and returned her to the lounge room where he again tied her legs. Once more he penetrated her vagina and anus with his penis and said to her that she was to be "subordinate" and should "shut up if I wanted to live". He placed his hands around her throat and said "Your life is in my fucking hands". He squeezed her nose shut so that she could not breathe.

18 The applicant then took his hands off the complainant and she asked him how long he would be, as the booking was only for two hours. She told the applicant if they went over time the receptionist would ring for the police to come around. The applicant responded that he had better remove the ties and tape from her and said that they had gone a bit over time. The complainant said he had to cut some of the electrical tape from her hair as it would not come off.

19 The applicant then asked the complainant if she would like to stay longer. She said to the jury that she was fearing for her life but she told him that she had to ring her babysitter and the receptionist at work in order to extend. The applicant offered her the use of his phone but she said that she needed to get the phone number from her mobile phone which was in the car downstairs. She collected all her belongings and went to her car. The battery in her mobile phone was flat but she then drove away from the residence. She observed that her arms were bleeding and swollen.

20 The complainant said she drove to a service station where two witnesses saw her in a distressed state and she asked them to call her workplace and the police. She spoke to Ms Gos and told her not to send anyone around there again. She told Ms Gos to ring the police. She returned to the escort agency, where she was vomiting. The police attended and whilst there tape recorded one of a series of telephone calls made by the applicant to the escort agency concerning the complaints made by the complainant, which had been reported to him in an earlier phone call by Ms Gos.

21 In cross-examination defence counsel attacked the credit of the complainant. On the defence case the complainant told demonstrable lies on a series of issues.

22 The complainant said that on the earlier occasion when she had visited the applicant as a prostitute he had asked whether she would provide sexual services to him on a private basis, that is, not through the agency. She said she refused the suggestion. She agreed that the applicant had given her his business card, and she had told him that she was prepared to do fantasies which involved dress-ups and lesbian acts. She also agreed that Ms Gos had told her prior to her accepting the job that the applicant had previously tied up another escort's hands as part of a sexual service. She said that Ms Gos had told her, however, that the complainant was to tie him up, not he tie the complainant.

23 The complainant denied the suggestion of defence counsel that on the first occasion it was she who had proposed that she work outside the agency and provide private services to the applicant. She denied that she had provided the applicant with her private mobile phone number, and that she had given the applicant her correct given name rather than her assumed name and that she had told him the suburb in which she lived. When police later searched the home of the applicant they found a black note book in which he had recorded each of those matters, together with a note "5 female old daughter, 2 days notice"[1].

24 Defence counsel also attacked the account of the complainant about the injuries she had received and her account that she had been stabbed with pins. The complainant agreed to defence counsel's proposition that she had been stabbed more than fifty times to each nipple and possibly more than 200 times to each nipple. She said her nipples and breasts had been mutilated and one nipple was "hanging off" slightly because it had been stabbed so many times. She had permanent scars to her arms, and her arms had been bleeding.

25 It was put to the complainant that she had not told the police that she had been stabbed in the vagina with pins nor had she told the examining forensic medical practitioner that she had been stabbed to the vagina. Furthermore, she had not told anyone prior to the trial that she had been stabbed in the anus with pins. She rejected the suggestion that she had never been stabbed with pins.

26 In his evidence forensic surgeon Dr Wells said that he examined the complainant within four hours of her returning to the escort agency and had detected no bleeding on her arms. The only puncture marks he saw were three or four very tiny puncture marks to one nipple. There was no obvious sign of trauma or bleeding to the genital area. There was an abrasion near the edge of the anus but he found no injury to the vagina consistent with her being stabbed fifty times or more with a pin, nor did her breasts reveal signs of pin-pricks, nor did her genitals show signs of such injury; it might not be possible to observe such signs but if there were multiple punctures it would be more likely that there would be signs of injury. Dr Wells said the complainant had not complained to him about being stabbed in the vagina nor to the anus. There were no signs of pin-pricks to the anus and there was no bleeding from the nipple. Neither nipple was nearly torn off or hanging off. There was no sign of mutilation of the vagina and no complaint had been made that her anal area had been mutilated nor was there any sign of such injury. There was no scarring to the arms. Dr Wells said he saw no sign of injuries requiring medical intervention.

27 The complainant denied the allegations that not only had she not told the applicant on the occasion of the charges that it was the first time she had performed bondage. She denied, too, that she had agreed in advance and had consented to all of the acts that had taken place.

28 The complainant's account was supported by the evidence of Ms Gos as to the arrangements made by her with the applicant, by the evidence as to the distressed state and complaints made by the complainant, and the evidence as to the offers of additional payment by the applicant in response to Ms Gos' telephone call. In addition, evidence was called from witnesses who observed her distressed state and complaints after she left the flat. Important as all of that evidence was it is unnecessary to deal with it in detail in order to properly address the grounds of appeal which in my opinion are determinative of the outcome of the application to quash the convictions.

29 Although a large number of grounds of appeal were advanced, the application for leave to appeal against conviction may be dealt with under two broad areas of complaint, which emerge from the grounds. There is a good deal of overlap between these areas of complaint.

30 In the first place, it is contended that the learned trial judge failed to relate the evidence to the issues in the case. Under this heading, complaint was made that the judge failed to adequately place before the jury the evidence in support of the case for the defence. In particular, the judge failed to provide a fair summary of the contentions of counsel for the applicant in his final address, and of the evidence contained in the record of interview given by the applicant to police.

31 Secondly, it was contended that the charge was unbalanced and failed to adequately put the defence case to the jury. Discrete complaint was made in one ground about the failure to give warnings about the evidence of the complainant but it is unnecessary to separately deal with that ground, since aspects of the complaint in that regard may be addressed under the second of the two headings identified above.

32 Before dealing with the grounds of appeal the applicant's version of events needs to be considered.

The account given in the record of interview

33 On 19 September 2001 the applicant was interviewed by way of videotaped record of interview conducted by officers of the Doncaster Crime Investigation Unit. The record of interview continued over 868 questions and answers from which was produced a transcript of 116 pages. At trial counsel for the applicant told the jury that the applicant's defence was contained in the record of interview.

34 The applicant told the police that he had used the escort agency often and had expressly asked them to provide him with an escort who performed bondage, which was to comprise tying her up and blindfolding her. He said he told the person at the agency that he wanted a woman who would do fantasies and they agreed on a price of $500. The person at the agency insisted that there was to be no hitting or spanking, to which he agreed but he said he told them that he would tie the arms of the woman behind her back and also her legs. The agency person asked what he would use to tie the escort and he said he would use ties and also a belt, but not rope. She also said not to use handcuffs and he agreed. The woman told him that for a fantasy like that the cost was $500.

35 The applicant said that when the prostitute came to his home he recognised her because she had provided services to him before and on that occasion she told him that she was prepared to see him outside of the agency and also said that she did fantasies and it would cost less if it was done otherwise than through the agency. The applicant said that he had set out on the couch in his lounge room the objects he was going to use to tie her and they discussed precisely what he would do to the complainant. He told her that he would tie her and blindfold her and she saw everything on the couch that he was going to use for those purposes. He said he discussed with her the fantasy that he wanted to perform and was very clear about it, and she in turn was very clear with him that there should be no spanking or hitting, and he agreed. He said he was going to tie her arms behind her back and blindfold her and have sex with her as he did on the previous occasion, and he told her that if it was good he would have her stay longer, if she wished to do so.

36 He said the woman took the $500 and then he tied her up and had the sexual activity with her to which she has agreed. He said he thought it was "fantastic" and asked her to stay longer and she said that she would but because she had a child at home and a babysitter she would have to contact the babysitter. He said the complainant said to him "But, you know, this was great too. We'll have to do it again" to which he replied, "Well, I'm - this is fantastic".

37 He said that she left the house and he went to sleep and then some time later he had a phone call from the agency saying that the complainant was very upset and the caller asked what had occurred. He said, "What do you mean, what occurred?" and said they did exactly what he had said they were going to do. He said, "You know, I asked for a service that you offered. I did the service and when it was over, it was over and I'm just - I'm just - you see, I'm in shock". He said that he called the agency back and said to the woman in charge at the agency that if he did the wrong thing to tell him, but said he did not think he had done anything wrong. The agency woman said that the complainant was going to the police. The applicant said he did not understand that and if he had done the wrong thing, which he did not think was the case, to tell him. He said he called the agency three or four more times because he was very upset. He said, "If she feels she wasn't compensated for the services that were discussed at the original price then you let me know 'cos I'm not here to do the wrong thing by anybody". He made that offer because he was afraid. He offered thousands of dollars, and the woman asked if he would be willing to pay a couple of thousand dollars extra. He hung up and thought about it. He said to the police that he had used the same woman before and they could discover that by checking the records of the agency. He said that she had given him her real name and her mobile phone number.

38 Throughout the interview the applicant maintained his denial that anything which he did was contrary to what had been agreed. He denied that the complainant had said to him that she had never done bondage before. He said she had told him on the previous occasion that she did fantasy work and by that he understood she meant bondage, including anal sex, spanking and something outside the norm.

39 The applicant then described in detail over many pages of interview all of the sexual acts that he performed on or with the complainant and said that he did these things very slowly so as to enhance the pleasure. He said that if she had complained that the belt around her elbows was too tight he would have stopped right then. In the course of describing what he did he said he was embarrassed to be saying it to the police but he agreed that he had placed his fingers in her vagina and anus and had kissed her vagina and anus and also licked them. He said that the complainant was moaning a bit as though having an orgasm. He said despite the mouth gag she could be understood when she said that she wanted to go to the bathroom and when she later said time was up.

40 He said that on the previous occasion the complainant had stayed for some three hours and offered to work outside the agency for less money and had given him her mobile phone number for that purpose. He agreed that there had been no bondage between them on that first occasion. On that first occasion they did everything that he did on this occasion save for the bondage. He denied the suggestion that she had been repeatedly saying no to him and trying to get him to stop.

41 Almost all of the conduct described by the complainant (save for stabbing her with pins) was agreed to have occurred, but the applicant gave detailed explanations consistent with innocence as to each activity. He said that he used salad oil as a lubricant to make it easier for them having sex as it would not hurt her anus when he inserted his fingers or thumb. He said she was moaning as though she was "turned on". He said that he was fondling the nipples and said "I would have been kissing her nipples, you know, I can't define whether I would have used my teeth in a manner to bite down and inflict pain, but rather to feel her nipple in my mouth." He said he would be surprised if he had bitten her on the vagina. He said he was definitely licking her on the vagina and rather than biting was using a suction motion with his mouth and when he was doing that she would have been moaning as he recalled. He said that on this day he had told her before they started that he was going to use his fingers and have sex with her and was going to have oral sex and that he also liked to have anal sex, as they had done on the previous occasion. He told her he would not insert any objects into her and he was not going to spank her. It was put to him that the complainant had told him that she did not do anal sex and had shaken her head when he asked her if she did. The applicant said that that was not so: "I did not interpret it that way". He agreed that he had taken her to the toilet and that when she urinated he put his hand into the toilet so that she urinated on it. He denied that he did not have permission for anal penetration and said they had done it before.

42 On the previous occasion, so he said, "I penetrated every part of her. I had her stay for a second hour. It was so great, I had her stay for a third hour and that I recall. And then she said she did fantasy work outside, so you know, you know the story".

43 On this occasion when they had concluded he said it was fantastic and would like her to stay longer. She said she would like to but she had a babysitter looking after her child. She said they could meet again. Questioned again about whether there had been a safety pin, he said that there was an elastic connection, like a pin, on the medical bandage. It was put to him that the complainant's nipples had been injured with pins. He said he had used his hands and had sucked hard on the nipples.

44 Initially he denied having produced a pin but later agreed that he had pulled "the pin" out and had "took it down there to put on her nipple and she went, "'Ugh, don't do that' and I didn't". He said the pin was the connecting metal piece which held a medical bandage together. He said he did not stick a pin into her but he did take a pin out to do so and he said "I think I was embarrassed. I'm ... so embarrassed to sit here and say these ... things". He did not think he would have caused multiple holes to her nipple because "she said very clearly not to do that". It was put to him that there were three to four tiny puncture marks but he said he did not insert the pin.

45 The applicant gave a detailed explanation for offering money if the complaint was not taken to the police. He was very upset at the false allegations but was nonetheless concerned to avoid having to deal with them. He said:

"I think that she got freaked out during the service and I think that she freaked out, got upset and went to the police. If you're saying it's the first time she's done that, well then, that's very possible. You know, that was not the impression I had and she got upset and thought, 'Well, I'll go to the police and show him' and that's what I think and you may say, 'Why would you pay [more] money?' Because, in my mind I wanted to do the right thing and if she was freaked out about what occurred - I'm not here to freak somebody out, you know, we agreed to do this at a certain price. If she's now freaked out and not comfortable with it, then I felt that if I gave more for that service, it would make her feel comfortable."

46 Although the primary defence was that the complainant was simply lying in denying that she had consented to all activities, in the above passage of the record of interview the applicant clearly raised the possibility that although he believed she had been experienced in bondage and had been consenting the complainant may not have been experienced and may have become distressed in the course of the bondage session, without him appreciating that to be so. That raised the possibility that the complainant may have stopped consenting during the events but that the applicant had been unaware that she had withdrawn her consent.

47 He said to the police, "I hired somebody for an escort, I hired them for bondage. What did I do that was wrong?" As to the marks shown on her arms in photographs he said her arms were held tight but when she said the ties were too tight he had loosened them and he did not think that they were that tight. He denied that this was rape or false imprisonment and said "This was a fantasy". He said:

"She knew what she was doing. She didn't tell me she hadn't done this before. I said to the agency what I wanted and they said, 'We'll send someone out who does bondage.' So, as far as the emotional injury, I don't understand because this was a fantasy that this woman was paid to do and had done before under the way I was ... led to believe."

"I want to say it was an escort service, it was a fantasy that they offered. That wasn't an assault, that wasn't false imprisonment and that wasn't rape. I've used their service many, many times. I've used their service before and paid for it and they sent somebody out on a fantasy call. That's not what - that's not rape and assault and imprisonment. That was sending somebody out for a fantasy call that was discussed completely up front and paid for."

Identifying the issues

48 His Honour told the jury that although she was a prostitute the complainant had the right to say no and said that she was not bound by any agreement made between the agency and the client. His Honour told the jury:

"It's entirely a matter for you, but it seems to me that the real issues in this case are the issue of consent and the issue of the proof by the Crown, as to the guilty mind of the accused. They seem to be the two issues, the issue of consent and the proof by the Crown as to the guilty mind of the accused. I will have more to say on both of these matters in more detail shortly."

49 The expression "the guilty mind" was thereafter used on a number of occasions by his Honour but he later used language closer to the terms used in s.38(2) of the Crimes Act 1958 under which the applicant was charged[2]. His Honour told the jury:

"As I said earlier, it's entirely a matter for you, but really there seems to be no real dispute that the accused did tie her up and restrain her in the fashion that she described. The real issue here it would seem, for you to determine, is whether Ms [complainant] consented or agreed to being so tied up and restrained and imprisoned. Or whether it was an unlawful act on the part of the accused in that he knew she was not consenting or might not be consenting."

50 Shortly thereafter, after again using the expression "the guilty mind of the accused", his Honour applied the words of the section in these terms:

"Did he intend to commit the crime of rape in the sense that at the time of the penetration he knew that the other person was not consenting? Or being aware that this person might not be consenting, persisted in the penetration regardless of whether that person consented or not.

If the accused placed his penis or his finger in the complainant's genitalia or, his penis or anus and knew that she was not consenting, or was aware that she might not be consenting, but determined to have sexual penetration of her whether there was consent or not, he is guilty of rape.

The Crown must therefore prove (1) the sexual penetration, (2) the absence of consent and (3) the accused's guilty mind as defined. The Crown must prove each of these elements beyond reasonable doubt. If it proves them all, then the accused is guilty of rape. If it fails to prove one or more of them, then he is not guilty of rape."

51 Two paragraphs later his Honour said that the real issues in respect of each count of rape "relate to the issue of consent and the issue of the guilty mind of the accused. Concentrate on the real issues in this case and don't get diverted by its side issue. Concentrate on the real issues." Later again he said that the Crown would have to prove that the penetration took place without the complainant's consent and that when it did the accused "was aware that Ms [complainant] was not consenting or that she might not be consenting".

52 That was later followed by this further explanation:

"There must be no lawful justification for it. Consent of course in this case if you were to find she had consented to it, then consent would be a lawful justification. Moreover, since this is a crime the Crown must prove not only that the woman did not consent, but that the accused had a guilty mind and that he knew she was not consenting or aware that she might not be consenting. Nevertheless determined to touch her."

53 That was the only occasion where the judge expressly related the expression "the guilty mind" to knowledge that the complainant was not or might not be consenting. His Honour no doubt considered that the expression "the guilty mind" was merely shorthand for the words of the section, but failure to use the precise words carried a risk of misunderstanding in this case.

54 One difficulty in repeatedly using the expression "the guilty mind" on its own at times in the charge was that it was an imprecise way of identifying the issues in the case. A jury might well have thought, for example, that the admitted conduct of the applicant was repugnant and disgusting, and that anyone who performed such acts ought feel ashamed, indeed guilty, about having so engaged. The applicant himself told police interviewers several times that he was embarrassed to recount the acts in which he engaged. But shame and embarrassment - a sense of guilt on that account - was consistent with innocence as much as with guilt of these offences. However, a jury properly instructed might well conclude that such conduct and the threatening, misogynist language which the complainant claimed was used by the applicant during the session was employed as part of bondage role playing. Consistent with that, the complainant said in her evidence that the applicant told her he wanted the complainant to be "subservient" during the session.

55 This was a case where emotions of disgust might be stirred among the jurors. It was particularly important that in assessing the competing versions the jury understood the issues and the relevant evidence and were not swayed in their evaluation by any disparity in the judge's treatment of the prosecution and defence cases. Without clear guidance the jury might well concentrate attention on the question whether the complainant in fact consented throughout the events, rather than give appropriate attention to the question whether even if she withdrew consent at some stage there was a reasonable possibility that the applicant had believed her to be consenting throughout. Considerable care was required to ensure that the jury fully appreciated the defence case extended to that hypothesis, too, and that there was evidence on which the respondent might rely in advancing that defence .

Relating the evidence to the issues/ putting the defence case

56 Mr Holdenson submitted that the evidence of the complainant was given disproportionate treatment by the judge in his charge, and that the case made by the applicant in his record of interview was barely mentioned. There is force in that complaint.

57 His Honour on three separate occasions provided a summary of the evidence of the complainant, not always at length, but always with emphasis.

58 When dealing in turn with the elements of each count on the presentment the judge gave a brief summary of the evidence on each count. After dealing with count 1, the count of false imprisonment, his Honour directed the jury that the Crown relied very much on the evidence of the complainant and then proceeded to recount her evidence of him "hogtying" her and her pleading to be released, and she had a sock in her mouth and tape over her mouth. His Honour interrupted that narration to give a very short statement of the defence, introducing it by saying that in his record of interview with the police the respondent explained that he had engaged the complainant as a prostitute to perform sex and bondage and that he told her what would happen and she had consented to it and agreed to be imprisoned for the purpose of the fantasy and when time was up he had released her. That summary of the defence occupied some seven lines, only.

59 Later, and after stating that the defence was that each sexual act was done with consent and with express agreement, the judge said that in order "to stimulate your memories", he would again summarise the complainant's evidence repeating that she had been "hogtied" and her evidence of pleading to be untied and her refusal of anal sex. That summary occupied some 20 lines of transcript and was followed by a similar length summary of cross-examination. The cross-examination summary amounted to a statement of the complainant's version of events as arose in denial of questions. I say that not as a criticism, because it is difficult for a summary of cross-examination not to have that effect, but to emphasise that the defence case did not clearly emerge by that process.

60 Later again, in what was then the third occasion he had done so, his Honour summarised the complainant's evidence again. On this occasion his Honour said he would give the jury a very short summary of the evidence and in fact ran sequentially through all of the witnesses in the case. On this occasion the summary of the evidence of the complainant occupied more than five pages of transcript as to evidence-in-chief and about six pages relating to cross-examination. (It is likely that it was longer than six pages because again there was a tape malfunction, with up to five minutes of the charge missing at this point).

61 The summary of the cross-examination of the complainant once again constituted a recitation of denials made by the complainant. Thus, what the jury heard once more by way of summary of her cross-examination was the complainant's version of events in denying all allegations made to her by counsel in cross-examination.

62 The complainant's evidence, therefore, had received extensive and repeated treatment in the charge.

63 The defence case was contained in the record of interview. The judge did not summarise its contents, at all, save for the brief and general summary, over a few lines, which I earlier noted.

64 The judge did not emphasise the importance the defence attached to the record of interview, if anything, he conveyed the impression that it was the prosecution which gained most from it. His Honour told the jury that the Crown relied on the record of the conversation in the phone call between the accused and Ms Gos and said that "the Crown also relies upon the record of interview between the accused and the police officers". His Honour did not at this point tell the jury that the accused, through his counsel, placed even greater emphasis on that record of interview, and why that was so.

65 After lunch on the first day of the charge the judge provided an updated exhibit list to the jury, which simply listed the exhibits, including the CDs containing the records of interview and the conversation between Ms Gos and the applicant on the telephone. The judge told the jury that they had play-back facilities in the jury room. In addition, there was the "black book" of the accused, the bandage with the safety pins, blue tie, photographs and other items. His Honour said "Those items that I have just mentioned to you, they form part of the evidence that you'll have to consider. Have gloves been arranged?" His Honour then discussed the advisability of wearing gloves when examining the exhibits. His Honour repeated that the exhibits were part of the evidence and then turned to directions as to the elements of the offences. Once more, no emphasis was given to the importance of the record of interview to the defence case.

66 On the appeal counsel for the respondent submitted that the failure to summarise the record of interview did not cause any injustice. It was submitted that when they retired the jury had so recently viewed the CD record of interview that it was unnecessary to summarise it in the charge.

67 The two CDs comprising the record of interview were of 42 and 66 minutes length. The viewing of the CDs commenced on one afternoon, 16 February 2004 and continued into the following morning, 17 February 2004. The charge commenced at about midday on 18 February 2004 and the eight line summary of the defence case - in which is was said that in his record of interview explained how the complainant had consented to be tied up and to perform sex and bondage as a fantasy session - was delivered during the afternoon of 18 February 2004. The jury retired to consider their verdicts at 11.15am on 19 February 2004.

68 In my opinion, the timing of the playing of the CDs was not so close to the time of the charge as to remove the obligation from the judge to summarise its contents so that the defence could be placed clearly before the jury.

69 The failure to adequately put the defence case was again apparent in the treatment of the final addresses of counsel.

70 His Honour summarised the prosecutor's address, over some three pages, as being that the real issues were "Whether there has been proved to you the lack of consent on the part of Ms [complainant] and the awareness of the accused that she was not consenting, or might not be consenting. The prosecutor submitted that what happened to Ms [complainant] went well beyond what she had consented to. Well beyond any agreement and that Soldo well knew that." In the course of summarising the address his Honour said that the prosecutor reminded the jury of the record of interview and urged that they listen carefully to it. He said the prosecutor contended that the accused lied to the police in denying use of a pin and "he urged you to listen very carefully to the record of interview on that topic". That was a reference to a matter the judge had highlighted at the commencement of the charge. At that time his Honour made a comment that it was conceded by the defence that the record of interview disclosed "that during the record of interview, the accused in relation to the nipple incident with the pin, changed his stance rather as the interview progressed. That's entirely a matter for you and not for me, but I mention that to you for your consideration."

71 Whilst that suggestion that the jury listen carefully to the record of interview might have been of some value to the defence, the context in which it was suggested they might do so was with respect to a matter damaging to the defence case.

72 In his summary of the address of defence counsel his Honour said that counsel submitted that the jury should analyse all the evidence, including the exhibits, and he reminded the jury, in his own words, that defence counsel had said that "You must concern yourselves as to what was going through Soldo's mind at the relevant time. What was his state of mind, you should ask yourselves. The issue, he submitted, has the prosecution proved beyond reasonable doubt the state of the guilty mind on the part of Mr Soldo at the relevant time." His Honour said that defence counsel invited them to look at the acts both before and after the bondage session had occurred. His Honour then said of defence counsel:

"He said that there were eight reasons why you should have reasonable doubts, and he detailed to you the lengthy eight reasons and quoted large portions of evidence in support of his submission. You will recall that evidence."

His Honour said that counsel had submitted that the complainant "told you demonstrable lies on oath" and that "you should be careful in relying on her evidence and he reminded you of such evidence which he submitted constituted demonstrable lies."[3] Mr Holdenson told us that although the judge had referred to defence counsel quoting "slabs of evidence" in the final address, counsel in fact read to the jury only 13 questions and answers (most of them being very short) taken from the record of interview.

73 The jury were then sent out to consider their verdict, at which point Mr Lindner took exception both specifically and generally to what he said was a lack of balance in the charge. He complained that the jury had not been referred to any of the evidence in the record of interview. He submitted that the jury had not been given the defence version, at all, in the charge, whereas the complainant's evidence had been repeated to the jury on three occasions in the course of the charge.

74 The learned trial judge was obliged to identify the issues in the trial and relate them to the evidence in the case[4]. In addition, the judge was obliged to ensure that the attention of the jury was drawn to the evidence on which the defence relied in defending the case. In R v. Yusuf[5] the Court set aside a verdict in a trial which occupied only one and a half days and in which consent was the issue. The judge gave very brief directions on the law but did not summarise the record of interview or counsel's addresses. Winneke, P., held[6] that notwithstanding the short compass of the trial the judge failed in his duty to relate the law to the facts in issue in the case. The judge was obliged to draw to the attention of the jury to the "sharp distinction" between the complainant's account of events and that asserted in the record of interview. The President held that the judge was also obliged to draw to the attention of the jury particular factors which bore on the conflict in the accounts and related to the issues of consent and the applicant's awareness as to consent.

75 In my view, although the judge when discussing the elements of each charge did on occasions briefly mention the contention of defence counsel to the jury he ought to have fully summarised the address of defence counsel later in his charge. He ought also to have fully summarised the evidence in the record of interview. The imbalance between stating the complainant's account and that of the applicant's was pronounced, in my opinion. Failure to put the defence case in those ways constituted an irregularity, and as in Yusef,[7] the Crown has not discharged its burden of showing that the proviso to s.568 ought be applied.

76 It was essential that the jury appreciated the extent to which the credibility of the complainant had been undermined by suggested lies. The suggested lies ought to have been expressly identified, in my opinion. The most important concerned, first, her injuries at the hands of the applicant, which were exposed to be lies, it was said, by the evidence of Dr Wells as to the absence of objective signs of such injuries, and the absence of complaints made as to many of the events and injuries about which she complained in her evidence. Secondly, there were the suggested false denials by the complainant as to her having provided her true name and private mobile phone number to the applicant. Thirdly, the complainant's denial that on the previous occasion she had expressed her willingness to perform fantasy sessions privately, outside the agency.

77 The combination of the failure to deal adequately with the final address of defence counsel and to direct the jury to the contents of the record of interview constituted significant omissions from the charge, and also made the charge unbalanced.

Complaint of lack of balance

78 The matters addressed above, in part involve a complaint of lack of balance in the charge but that complaint was also advanced on other discrete grounds.

79 Mr Holdenson submitted that not only did the judge fail to identify the alleged lies and relate them to the defence case he had undermined the defence, by offering an explanation for the complainant's evidence as being the product not of deliberate lies but of distress caused by the nature of her cross-examination.

80 Soon after commencing the charge the judge directed the jury about the evidence that the accused was a man of good character. His Honour told the jury that they should make appropriate allowance for the personal circumstances of the complainant and said that whether they did so or not was a matter for them. His Honour then continued, in a passage which was the subject of express complaint:

"In this case you have a relatively young woman giving evidence about what would be open to you to consider were very distressing and very personal matters to her. And matters where she was - you might think, and I stress this is entirely a matter for you - she was not in full possession of her senses, because she was blindfolded.

And it matters - again I stress it is a matter entirely for you - of an extremely distressing nature you may think. When she was hogtied as it were and repeatedly, allegedly, sexually interfered with.

You may well consider - and I stress that this is a matter for you - that the complainant, Ms [complainant] might have been under a considerable degree of distress, in coming to this court and giving evidence about these matters. Which as I have said - now occurred over some two-and-a-half years ago. You saw her in the witness box giving her evidence and the manner in which she gave her evidence. If you were satisfied of that factor, that's the factor of distress in giving evidence, when assessing her as a witness it would be open to you - and I stress this is entirely a matter for you - but it would be open to you to have made some allowance for that factor if you wish. I stress again, whether you do so or not is entirely a matter for you."

At that point the Court adjourned for lunch.

81 The jury therefore took with them to the jury room over the luncheon break on the first day of the charge what in my view was a very strong comment, entirely favourable to the Crown and which the jury might conclude not only provided an explanation for paying little or no heed to any lies or exaggerations exposed in the complainant's evidence but also indicated a strong view of the judge as to the credibility of the witness.

82 Even assuming that there was any need for a comment to be made, at all (and I do not accept that there was[8]), the passage, above, was not in any way balanced by a direction to the jury that one other possibility they might consider is that the distress of the witness in the witness box provided no explanation for any lies or exaggerations exposed in her evidence, but may in fact reflect an acknowledgment that such lies and exaggerations had been found out.

83 In a case such as this there is a necessity for balance in the charge and it is important that the jury's assessment of credibility not be influenced by an apparent opinion of the trial judge as to where the truth lay. As Gaudron, A-C.J., Gummow, Kirby and Hayne, JJ. held in RPS v. The Queen[9] when discouraging trial judges from offering unnecessary comments to the jury "It is for the jury alone to decide the facts".

84 Before commencing his detailed summary of the evidence of witnesses his Honour said to the jury:

"If you were to think from anything that I have said to you during the course of the trial or during my charge to you that I have a concluded view on this matter one way or the other, you would be wrong. It's not my role to form any concluded view. That's your role and your role alone and no one - no one - is entitled to usurp your role."

85 Notwithstanding that statement, I remain concerned that the jury might well have considered that the judge had intended to convey an impression as where he thought the truth lay in the case. An impression of judicial opinion can be conveyed in many ways, and it may be conveyed quite unwittingly. In this case one aspect which concerned me was the consistent differentiation adopted by his Honour between the applicant, on the one hand, and the complainant and other witnesses, on the other hand, when referring to them in his charge. One extract, taken from the judge's summary of counsel's address (but consistent with the approach adopted throughout[10]) will suffice:

"The swollen nipples were consistent with squeezing or biting. Mr Armstrong submitted that the anal injury was also consistent with the anal penetration by the accused of Ms [complainant].

He submitted that Soldo lied to the police when he said he didn't use a pin. Again, he urged you to listen very carefully to the record of interview on that topic. He submitted that in the recorded conversation with Ms Gos, he had made admissions.

Further, he submitted that in offering money to Ms Gos, the accused had demonstrated a consciousness of guilt. When told by Ms Gos, that he Soldo, had raped Ms [complainant], Mr Armstrong submitted that Soldo did not dispute that fact in the conversation. All he wants to do in that conversation is sort it out, to offer money."

"He said Soldo's behaviour - Mr Armstrong submitted - was consistent with that of the arrogant rapist. He submitted to you that even in his record of interview with police, it was clearly demonstrated that Soldo was a man who had gone well beyond the deal. He submitted that Soldo was a man who lied, he reminded you of what he said was an obvious shift in Soldo's position when Soldo gave his account to the police about the pins.

He submitted that Soldo was a man who was very evasive, him talking with the police, and on the issue of the pins. He submitted that what Soldo said to Ms Gos and to the police was demonstrative of his arrogance. That he would buy his way out of it, consistent with his behaviour all the way through. He thought he could buy his way out, he submitted.

He submitted that Soldo went way beyond any agreement with Ms [complainant], and that you should find Soldo guilty of all the charges."

86 In my view, such a stark contrast in the manner of address ought be avoided. A jury might well understand that it reflected judicial dislike for the accused, which might also suggest that the judge considered that as between the accounts of the complainant and the accused the jury ought prefer the former. I am not suggesting that the judge deliberately adopted the approach he did, nor that he did so in order to convey that message to the jury. Indeed, the differentiation in the manner in which he addressed people was not the subject of complaint by counsel at the trial nor was it raised before us in the grounds of appeal or in argument until I raised the matter myself in the course of the hearing. Had it been a ground of appeal the judge would have had the opportunity to comment on the matter in his report to the Court.

Conclusion as to conviction application

87 It is unnecessary to deal with other grounds of appeal. The matters addressed above lead me to the conclusion that the application for leave to appeal against conviction ought be upheld.

88 Given that the complainant's credibility was central to the Crown case it was essential, in my opinion, that the directions to the jury betrayed no hint of imbalance, and for the reason I have stated there was justification for the complaint of imbalance. In addition, the defence of the applicant was not adequately put to the jury by the judge. It can not be said that the applicant was not thereby denied a chance of acquittal fairly open[11].

89 The convictions ought be set aside and a new trial be held. In any case the decision by an appeal court that there must be a re-trial is obviously a very unfortunate outcome for the criminal justice process. A re-trial inevitably causes considerable stress to all involved in the case. It is essential, however, that there be no hint of imbalance in the judicial management of any trial, especially a trial where it is oath against oath and where the natural sympathy of a jury for a complainant might interfere with the intellectual task which they must undertake. I do not suggest that the judge in this case intentionally allowed sympathy for the complainant to produce an imbalance in the way he charged the jury. As Ormiston, J.A. observed in R v. Cummins[12], appeal courts are slow to accept complaints of imbalance because an appeal court does not assess a trial in the atmosphere in which the charge was delivered. When deciding what to insert and what to omit from a charge trial judges must address sometimes conflicting demands of expedition and comprehensiveness, the balance which an appeal court may require being often uncertain[13]. I fully appreciate those matters but in my opinion, for the reasons I have given, the complaint of imbalance and of failure to adequately present the defence case to the jury has been made out, on an objective analysis of the charge in this case. It is essential that there be no basis for complaint that such a trial, indeed, any trial, has those defects. For that reason it is important that judges exercise particular care to ensure that the words of a charge do not invite those criticisms.

90 It would be an unfortunate and ironic consequence if a judge's sympathy for the ordeal of a complainant unconsciously influenced the language or balance of a charge in such a way that a conviction was open to successful challenge on appeal on those accounts, given that as a result the complainant would be obliged to repeat the ordeal of giving evidence, in a re-trial.

Sentence

91 Given my conclusion as to the conviction application, and provided that my opinion gains support by one other member of the Court, it is unnecessary to consider the application for leave to appeal against sentence with respect to the sentences imposed after the applicant's trial, and as to which there must be a re-trial. That, however, does not apply with respect to his application concerning the sentence of 2 years' imprisonment imposed on the severed count of common assault.

92 This assault was committed on 25 June 2002, on a prostitute who came to his home, whereupon he grabbed the complainant's arms, forced them behind her back and tied her arms at the elbows. He forced his hand into her mouth causing her to vomit and then slapped her hard three times. His attack was interrupted by her driver phoning her and then arriving at the flat. The complainant had been very scared and the applicant sought to avoid police action by offering sums of money to the complainant. The complainant suffered injuries including abrasions to the forehead, neck and knuckles.

93 The sentence was said to be manifestly excessive and to reflect that too little weight was given to the plea of guilty. The judge sentenced the applicant on this count against the backdrop of his conviction on all the other counts. The sentencing judge was entitled to treat the other offences as prior convictions but for our purposes - the convictions having been set aside (if my view is that of a majority, at least) - the sentencing discretion must be regarded as re-opened. The applicant must, therefore, be sentenced by us as a person with no prior convictions.

94 In those circumstances when set against a maximum penalty of five years' imprisonment a sentence of two years imprisonment as a first offender, with a good work history and supporting good character evidence would be too severe.

95 Evidence was called on the plea that the applicant, who had no prior convictions, had an unusual upbringing by his father, who exposed him to his extensive pornography collection. A forensic psychologist (albeit speaking in the context of the applicant's conviction on the additional counts, as well as the present count) gave evidence that for his rehabilitation to succeed the applicant required 2 years of treatment in custody followed by five years while on parole. His prospects for rehabilitation were then excellent.

96 The applicant was aged 46 years when sentenced. He is an American citizen who had been resident in Australia for more that 17 years. He is well educated and had been in steady employment, in a management position, for many years with an American company. Although separated from his wife and child he retains good relations with both. Many good character testimonial were presented to the sentencing judge. Dr Lester Walton has opined that the applicant is motivated to avoid further sexual offences.

97 Save to the extent that the plea of guilty itself reflects remorse there has been no expression of remorse.

98 Notwithstanding those matters which mitigate sentence, and his plea of guilty (albeit made late in the day), the offence on which the applicant has pleaded guilty is a serious example of common assault, falling short of causing serious injury. The offence was serious and frightening, and the need for general and specific deterrence remains important in this case.

99 I would sentence the applicant to eighteen months' imprisonment on this count and I would fix a period of twelve months' imprisonment before he was eligible for parole.

100 I have had the considerable advantage of reading in draft the reasons for judgment of Eames, J.A.

101 I agree with his Honour that the jury's perception of the issues was at serious risk of being affected by disgust of the applicant's conduct. In order to avoid that risk it was necessary for the judge to explain in clear terms that the question for the jury on each of the counts of rape was whether the Crown had established beyond reasonable doubt that the complainant did not consent and that the applicant was aware that the complainant was not consenting or might not be consenting.[14] To speak instead, as the judge did, in terms of a "guilty mind" was likely to be confusing and to exacerbate the risk of prejudice.

102 I agree too with Eames, J.A. that the judge's summary of the defence case was inadequate when compared to the extensive and repetitious fashion in which the judge summarised the Crown case. Plainly, it is unbalanced and unfair to repeat the Crown case several times while according the defence case no more than a single perfunctory mention.

103 With respect I do not share Eames, J.A.'s view that it was inappropriate for the judge to mention for the jury's consideration the possibility that the complainant's testimony was affected by her distress. But I agree completely with his Honour that once the judge made that observation it was incumbent on him to put to the jury for their consideration, with equal force and enthusiasm, the alternative possibility that the witness was lying.

104 But for Eames, J.A.'s observations, I should not have thought that there was much wrong with a judge referring to a male accused by the accused's surname alone. With respect, I take leave to doubt that a jury would construe it as reflecting dislike of the accused. But it is hard to disagree with Eames, J.A. that it is preferable to avoid any differentiation that might be construed as prejudicial, and thus I agree with his Honour that it would be better to avoid the practice.

105 Like Eames, J.A. I conclude that the defects in the judge's charge were such as to deprive the applicant of a reasonable chance of acquittal and therefore that the application for leave to appeal against conviction should be allowed.

106 I think that it is lenient, but I am content to agree in the sentence of 18 months and the non-parole period of 12 months which Eames, J.A. proposes on the severed count of common assault.

[1] These are the terms of the note as written.

[2] S.38(2)(a) may be summarised as providing that a person commits rape if he intentionally sexually penetrates another without consent "while being aware that the person is not consenting or might not be consenting". S.38(2)(b) provides that it is rape if after penetration of another the first person does not withdraw from a person who is not consenting "on becoming aware that the person is not consenting or might not be consenting. S.37(1)(c) makes it relevant to a defence of consent whether the belief that the person was consenting was reasonable in all the relevant circumstances.

[3] At this point a further five minutes of transcript has been lost due to a tape malfunction but counsel told us that his Honour did not further deal with the eight reasons advanced in final submissions for the defence nor highlight the lies identified by defence counsel.

[4] See RPS v. The Queen [2000] HCA 3; (2000) 199 C.L.R. 620, at 637 [41]. R. v. Defrutos [1998] 2 V.R. 589 at 597-8; R. v. Anderson [1996] VICSC 17; [1996] 2 V.R. 663 at 666-7; Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R 437 at 466.

[5] [2005] VSCA 69, Winneke, P., Charles and Chernov, JJ. See too R v. De' Zilwa [2002] VSCA 158; (2002) 5 V.R. 408 at 411; R v Crockett [2001] VSCA 95; (2001) 124 A.Crim.R. 312, at 314-5 [8].

[6] At [15], [18]-[20].

[7] At [20]. See too D'Orta-Ekenaike v. Victoria Legal Aid & Anor [2005] HCA 12; (2005) 79 ALJR 755, at [163] per McHugh, J., Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, at 514; R v. Weiss [2004] VSCA 73; (2004) 8 V.R. 388, at 400 [70].

[8] See RPS v. The Queen [2000] HCA 3; (2000) 199 C.L.R. 620, at 637 [42].

[9] At 637 [42].

[10] Of the very few exceptions, most were instances where the judge was referring to the words of the counts as used in the presentments.

[11] Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, at 514; R v. Weiss [2004] VSCA 73; (2004) 8 V.R. 388, at 400 [70].

[12] [2004] VSCA 164; (2004) 147 A.Crim.R. 585, at 599-560 [40]-[43], Warren, C.J. and Winneke, P. agreeing.

[13] The dilemma for trial judges in this regard is discussed by Ormiston, J.A. in R v. De 'Zilwa, supra, at 410-411, especially at [5].

[14] Crimes Act 1958, s.38.