R v Spero [2006] VSCA 58

Sentence - Double punishment - Manifest excess - Offender re-sentenced.

Mr S Carisbrooke, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading in draft the reasons for judgment of Redlich, AJA. I agree that, for the reasons given by his Honour, the application for leave to appeal against conviction should be refused, the application for leave to appeal against sentence granted, the appeal treated as having been heard instanter and allowed, and the applicant re-sentenced as his Honour proposes.

2 I agree with Redlich, AJA, for the reasons he has stated, that the application for leave to appeal against conviction should be refused, the application for leave to appeal against sentence granted, the appeal heard instanter and allowed and the applicant re-sentenced as his Honour proposes.

3 On 16 September 2004 the applicant, William James Spero, who was aged 45 years at the time of the offending, was found guilty by a jury of one count of aggravated burglary, two counts of indecent assault, one count of rape and one count of causing injury recklessly. Following a plea in mitigation of penalty the applicant was sentenced to a term of five years' imprisonment on the count of aggravated burglary, four years' imprisonment on the count of rape, 18 months' imprisonment on the count of recklessly causing injury, eight months' imprisonment on the first count of indecent assault and 12 months' imprisonment on the second count of indecent assault. The trial judge ordered that two years of the sentence imposed on the count of rape and six months of the sentence imposed on the count of recklessly causing injury be served cumulatively on the sentence imposed on the count of aggravated burglary, making a total effective sentence of seven years and six months. His Honour fixed a minimum period of five years before the applicant was to become eligible for parole. The applicant appeals against both his conviction and sentence.

4 I turn firstly to a brief summary of the circumstances of the applicant's offending. The complainant was a 69 year old woman who resided by herself. She had known the applicant for approximately 25 years. The applicant used to live in the neighbourhood with his mother and, when the complainant's son was younger and lived with her, her son brought the applicant to the complainant's home on a number of occasions. After the complainant's son married and moved out of the complainant's home in 1988, the applicant visited the complainant from time to time for a cup of coffee and a chat. At some point in time, being many years before the commission of these offences, the relationship between the complainant and the applicant changed. As a consequence of the applicant's conduct the complainant become concerned about the interest the applicant was showing in her and the applicant was told not to visit her again. Despite this indication the applicant continued to visit the complainant, but she would not let him in the front door. It appears that the applicant sometimes went to the back door of the house and, if he found it was open, he would come into the complainant's kitchen. When she saw him inside she would tell him to leave. The complainant would lock her doors whenever she saw the applicant approaching the house. It was the Crown case that, approximately one month prior to the commission of these offences, the applicant approached the complainant whilst she was in the backyard hanging out washing. The applicant was told to leave and not to come back. The complainant testified that, on the Monday prior to the commission of these offences, the applicant came to her front door. He asked for a glass of water. The complainant would not let him inside and told him to go to his mother's house which was nearby. The complainant said that the applicant gave her "a dirty look" before leaving.

5 On 4 September 2003 the complainant had been in the shower for about ten minutes when, according to the Crown case, the applicant, having entered the house through an unlocked rear door, undressed and entered the complainant's bathroom naked. The applicant opened the shower door and the complainant screamed and attempted to push him away. The complainant was grabbed by the arms and a struggle ensued. The applicant told her not to scream otherwise he would switch on the hot water and burn her. The applicant touched her on the breasts. The applicant allowed the complainant to come out of the shower and told her that he intended to do things from the front and from the back and he had wanted to do this for a very long time. The applicant's penis was limp. He made the complainant bend over in the bath and inserted one or more fingers inside the complainant's vagina and made the complainant hold his penis. The applicant said words to the effect "I've always wanted to fuck you". When the applicant had removed his fingers he allowed the complainant to wrap a towel around herself and she stepped out into the hallway. She asked the applicant why he had done this and the applicant repeated that he had wanted to do it for a long time. The applicant pointed to the telephone and said "Now are you going to ring the police, are you going to tell my mum?" The complainant said "No I won't". The applicant went to the laundry area and returned with his clothes and got dressed in the complainant's presence. She asked him to leave and he left through the rear door.

6 Immediately after the applicant left, the complainant called a friend and asked her to come over to her house saying "Come over, Bill has killed me". When the friend arrived, the complainant told her what had occurred. A neighbour was also asked to attend and the complainant repeated her account of what had occurred. The police were then called.

7 The complainant sustained bruising to her wrists and breast area and there were red marks on her forearms and some blood oozing from those marks. The applicant was arrested on the same day. In the course of a record of interview with the police, he denied the complainant's allegations and maintained that he had not been inside the complainant's house for five years. Later that day a fingerprint expert attended the complainant's home and located a latent fingerprint on the shower screen which he identified as belonging to the applicant. The expert opined that the fingerprint was of recent origin and was no more than a month old.

8 The Crown called evidence from the complainant's friend and from her neighbour as to the complaint made by the complainant. As the applicant had told investigators in his record of interview that he had visited various people on the morning of 4 September, the Crown called evidence from a number of people to establish that the applicant had the opportunity to commit the offence at the time it was alleged to have occurred.

9 At trial the applicant stood mute. The only witness called for the defence was a fingerprint expert whose testimony did not differ in any material respect from the testimony of the prosecution's expert witness.

10 The primary issue in the trial was whether it was the applicant who entered the complainant's premises and raped her. The complainant's testimony that she had been attacked as she described was not put in issue. The question which the jury was required to resolve was whether the complainant gave honest and reliable testimony that it was the applicant who attacked her. It was not suggested that the complainant had any impairment of mind or sight which might have affected the accuracy of her observations. The rapist was in the complainant's immediate presence - first in the shower, then in the bathroom and then in the hallway - for approximately 20 minutes. The complainant spoke with the intruder. The conversation, which suggested that the complainant and the intruder were well-known to each other, was not in issue. There was a substantial body of corroboration of the complainant's account that the applicant was the intruder. By the applicant's admissions in his record of interview, he was visiting friends and associates at premises not far from the complainant's home that morning. The evidence of those friends and acquaintances demonstrated that, at the time of the alleged offence, the applicant was not in their presence, thereby establishing that the applicant had the opportunity to commit the crimes alleged. The Crown case was a very strong one.

11 The applicant abandoned a number of grounds of appeal set out in his full statement of grounds dated 16 August 2005. The grounds relied upon were as follows:

"4. The learned trial judge erred by failing to direct the jury adequately, or in accordance with Edwards v The Queen,[1] about the issue of consciousness of guilt by, inter alia,

(a) failing sufficiently to specify reasons why the applicant might lie other than by virtue of the fact that the applicant was conscious of his own guilt,

(b) asserting that the applicant may have lied because he wrongly believed himself to be guilty;

(c) failing to specify the independent evidence that led to proof of the alleged lie.

5. The learned trial judge erred by failing to warn the jury, in accordance with Domican v The Queen,[2] about the victim's evidence of having identified the applicant.

PARTICULARS

(a) The learned trial judge did not warn the jury with the authority of his office on the dangers of relying on the visual identification evidence of the victim by isolating and identifying the matters which affected and/or undermined the reliability of that evidence.

(b) The learned trial judge suggested to the jury that matters extraneous to the victim's evidence of direct identification (such as, for example, the evidence of the applicant's fingerprint on the shower screen) 'supported' or 'corroborated' the identification evidence.

6. The learned trial judge erred in his direction to the jury about the offence of aggravated burglary (count 1) and, in particular, erred in his direction with respect to the elements of 'trespass' and 'intent'.

...

8. The learned trial judge erred in his directions to the jury as to the question of evidence that might 'corroborate' the complainant's evidence."

Ground 4 - The Edwards direction a to lies and consciousness of guilt

12 It was the Crown case that the statement made by the applicant in his record of interview, that he had not been to the complainant's house for five years, was a lie told because of consciousness of guilt. After referring to the relevant answers in the applicant's record of interview, the trial judge gave the following direction:

"Now, what the Crown say is that that is a lie and that that lie demonstrates a consciousness of guilt and that you are entitled to infer his guilt from that lie. The Crown states that they are deliberate lies, in respect of not being in the house for a period of five years, and that his reason for lying was his knowledge or consciousness of guilt of the crimes that he is being charged with. I will give you the following directions about that argument by the Crown. You may infer that the accused entertained a consciousness of his own guilt of these charges if, but only if, you are satisfied beyond reasonable doubt of the following matters. First, that the statement attributed to him was, indeed, made by him. Well, you have heard his record of interview where there is no issue but he said that he had not been inside the house for a period of five years. Secondly, that that statement by him was a lie and that they not only were untrue, but that the accused knew at the time he said it that it was untrue and, third, that the only reasonable explanation that the accused did tell that lie was his consciousness of guilt of these charges. Not of any other wrongdoing or because of some other reason to lie about that matter.

Were you satisfied beyond reasonable doubt that the accused did tell lies in this way and did so because of a consciousness of guilt of the charges that he is facing, you could use that consciousness of guilt as evidence of actual guilt. In doing so, however, you should be careful to consider the possibility that the accused may have wrongly believed himself guilty of the charges that he is facing. However, if you are able on the whole of the evidence, to exclude that possibility beyond reasonable doubt, the evidence of the accused's lie becomes evidence of his guilt." (Emphasis added.)

13 In summarising defence counsel's submissions, the trial judge said:

"Counsel submitted to you that when the accused said he had not been inside the house for five years, this might be due to tiredness or panic or stress, and that it was not a lie but a mistake or incorrect reference."

14 Following the Edwards direction the prosecutor raised a question concerning his Honour's direction as to other lies which went only to the applicant's credit. No further redirection was sought and defence counsel twice indicated that she was content with the directions which had been given.

15 Mr Boyce, who appeared for the applicant on the appeal, submitted that the trial judge's direction was seriously deficient as the judge had failed "to nominate viable possible reasons for why the applicant may have lied", and had positively asserted one possible reason for lying that had no relevant application in the present case. In substance, it was submitted that by suggesting that the applicant may have wrongfully thought himself guilty of the offence, the trial judge raised a fanciful and unrealistic explanation which had not been suggested by the defence. Further, so it was argued, the judge compounded that error by directing the jury that if they could exclude "that possibility" the accused's lie would become evidence of his guilt. It was submitted that the possible reasons for lying consistent with innocence and which are referred to in the decision of Edwards - namely "panic" and "to escape an unjust accusation" - were the reasons which the defence had relied upon. They did not, however, receive any emphasis by the trial judge and the direction removed such possibilities from the jury's consideration.

16 The defence advanced an explanation for the alleged lie. The jury was addressed at some length during counsel's closing argument to the effect that, by the time the applicant gave his answer in the recorded interview, he had not been to the complainant's house for five years, he had been interviewed for some six hours and an element of panic may have intruded into his thinking. It was submitted to the jury that they should find that the applicant was exhibiting stress during the latter parts of the interview which might explain this particular answer. The jury was invited to conclude that, as a consequence of stress or panic, the applicant had made a mistaken or incorrect reference as to when he was last at the complainant's house. The trial judge reminded the jury in his charge that this was the defence explanation for the alleged lie.

17 A direction that informs the jury that they must consider whether other reasonable explanations for the lie exist, and which does remind the jury of the defence argument as to what those possibilities might be, may be a sufficient direction notwithstanding that the trial judge did not lend his or her imprimatur to the defence submission as to what those reasonable possibilities were. In R v Finnan[3], the jury had been directed that they were required as a matter of law to consider whether there were alternative possible explanations for the telling of the alleged lie, and they were reminded of the defence explanation. Such a direction was regarded as sufficient. The Court did not regard it as essential that the trial judge hypothesise possible explanations other than consciousness of guilt, nor was it necessary for the trial judge to state explicitly that it was necessary for the jury to exclude the particular explanations advanced by the defence. It was enough that the jury were directed that they must consider any reasonable possible alternative explanation for the alleged lie.

18 In the present case, the jury were told that they must consider whether the only reasonable explanation for the alleged lie was the applicant's consciousness of guilt. They were told to consider whether the applicant may have had some other reason to lie about that matter. They were reminded of defence counsel's argument as to why he may have given the answer that he did.

19 On the appeal, this Court was supplied with an excerpt from the County Court Trial Directions Manual relating to consciousness of guilt. The impugned direction faithfully follows that set out in the manual. The third matter set out in the model direction requires the jury to exclude as a reasonable explanation that the lie was told because of a consciousness "of some other wrongdoing" or "because of some other reason to lie about the matter."

20 This form of direction was the subject of consideration by this Court in R v Le Broc.[4] It was concluded that such a direction whilst not a "perfect model", was sufficient in the circumstances. In Le Broc, as in the present case, the trial judge had reminded the jury of the defence explanation for the alleged lie, but it was submitted that the jury had not been instructed with the weight of judicial authority that there might be reasons for the telling of the lie apart from the realisation of guilt of the crime charged. The direction therefore fell short - so it was submitted - of the requirements stated in the well-known passage in the judgment of Deane, Dawson and Gaudron, JJ in Edwards v R which states:

"Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission."[5]

21 The Court in Le Broc did not consider that the direction given - which was in almost identical terms to the impugned direction here - would leave a jury in any doubt that "consciousness of guilt of some other wrongdoing" or "some other reason to lie" might be reasons for the telling of the lie apart from the realisation of guilt.[6] Although the trial judge in that case had not put before the jury for their consideration, with the authority of her office, the explanation which the applicant had advanced in the course of his defence, she had nevertheless placed the defence explanation before the jury. The direction given was considered adequate to avoid the risk of the jury using the lies in an impermissible way.[7] The Court further stated:

"In expressing the views which we have in the three preceding paragraphs we have considered another argument which might have been, but was not, raised before us. This is that her Honour's statement in the passage from the charge which we have set out earlier, that, if the jury were able to exclude beyond reasonable doubt 'that possibility' (scil, the possibility that the applicant might have wrongly believed himself guilty), the evidence of the lies became evidence of the applicant's guilt, might have led the jury to think that consciousness of guilt was established really by the exclusion of 'that possibility' beyond reasonable doubt. But, remembering that a charge is received by a jury aurally, we think that the portion of this charge preceding the passage set out earlier would have made it clear to the jury that 'that possibility' was merely one of the possible reasons to be excluded beyond reasonable doubt before the jury could conclude that the lies were told out of consciousness of guilt of the crime charged."[8]

22 There is no obligation upon a trial judge to recite each and every point from the critical passage for the joint judgment in Edwards.[9] It is sufficient if the direction makes clear that a lie cannot be used as incriminatory on any basis other than that it was told because the applicant was conscious of his guilt of the crime charged. However it may be expressed, if the direction actually given avoids the risk of a jury using the lie in an impermissible way, a miscarriage of justice will not occur.

23 This Court has previously stated that a model direction should not be utilised in an uncritical fashion. It must be adapted to the circumstances of the case. In the present case, the result of using the model direction was that an unrealistic and fanciful explanation was suggested for the telling of the lie. The explanations postulated in the passage from Edwards to which we have referred are neither fanciful nor unrealistic, and it would clearly have been preferable for the judge to have referred to such possibilities, rather than to dwell upon one which was not raised by the defence and which was inappropriate in the circumstances.

24 This ground fails.

Grounds 5 and 8 - Failure to give an adequate identification evidence warning

Recognition cases and a Domican warning

25 These grounds of appeal are predicated upon the assumption that the trial judge was obliged to warn the jury against the unreliability of identification evidence in the terms discussed in Domican v The Queen[10] and Festa v The Queen.[11] The origins of the rule may be found in Davies and Cody v The King,[12] the warning being required "if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him". It was acknowledged in Davies and Cody that the amount of care and the nature of the precautions which should be taken if a potential witness identifies an accused "must vary according to the familiarity of the witness with that person"[13]. The joint judgment in Domican v The Queen states that -

"The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused."[14] (Emphasis added)

26 There are now a large number of cases which have emphasised the distinction between a true identification case and one in which the accused or suspect is previously known to the identifying witness. In Arthurs v Attorney-General (Northern Ireland),[15] the House of Lords held that it was unnecessary for the trial judge to warn the jury of the dangers of acting on the identification evidence of a prosecution witness who knew the accused. In R v Wright (No. 2),[16] the Full Court considered a summing up sufficient in which the jury's attention was directed to various matters relevant to the reliability of the recognition evidence. Where the person identified is well-known to the witness, it has sometimes been held that no more than a few words of the warning may suffice.[17] In R v Marijancevic[18] the Court of Criminal Appeal found a Domican direction unnecessary in relation to recognition evidence given by a witness who had known the accused for many years.

27 The difference between "recognition" and "identification" evidence was discussed in Neville v The Queen,[19] the Court of Criminal Appeal referring with approval to the following passage from the judgment of McKechnie, J in Kelly v The Queen:[20]

"A suspect known to a witness may be recognised by that witness at a place which, for convenience, I will refer to as the crime scene. While examination is undertaken by the Court as to the circumstances under which the recognition at the crime scene was made - sometimes very similar to issues of identification - other problems associated with identification are absent. The witness has had a prior opportunity to be familiar with the suspect. Identification occurs when the witness does not know or recognise the suspect who is observed by the witness at the crime scene. In these circumstances there is a later opportunity to see the suspect and for the witness to compare the features of the suspect on that later occasion with their (the witness') recollection of the person they observed at the crime scene. This evidence is generally admissible. The conditions surrounding the observations at the crime scene may bear on the reliability of the evidence and may require a judge to give both general and specific warnings to the jury on the dangers of recognition."

28 Cases such as R v Broadman[21] and R v Turnbull[22] illustrate that there will be circumstances in which the opportunity of the identifying witness to recognise a suspect was so limited, or the witness's familiarity with a suspect was of such a short duration, that a full Domican warning was called for. Whether a Domican warning is necessary in a recognition case was said in Carr v The Queen[23] to depend on all of the relevant circumstances, including the degree of familiarity of the witness with the suspect, the circumstances in which the suspect had previously been seen by the witness, and the circumstances in which the suspect was alleged to have been seen by the witness at or about the time of the crime.

29 The approach in Carr was followed by the West Australian Court of Appeal in Smith v The State of Western Australia,[24] no error being found in the trial judge's conclusion that it was inappropriate to give any specific direction to the jury about potential dangers in relation to identification because of the great familiarity which the witness had with the suspect. In Peck v The State of Western Australia,[25] the West Australian Court of Appeal again distinguished between identification and recognition evidence, holding that, where the suspect was well-known to the identifying witness, a full Domican direction was not required.[26] Very recently this Court in The Queen v Lovett[27] again drew attention to the difference. Ormiston, J A., after referring to a number of cases in which the distinction had been emphasised[28], said:

"If a witness, having similar familiarity with the accused, had merely chanced on some occasion of alleged offending, then that may have required a suitably tailored warning about identification and the possibility of mistake. On the other hand the circumstances of the present case, and the participation of the witnesses in the events of the evening and their knowledge of the participants in the fighting, together with their opportunities to observe the applicant on the night over an extended period of time long before the final attack took place, meant that, if the witnesses were mistaken, or otherwise not telling the truth about these events, it was not because of any difficulty in identifying the applicant."[29]

30 In the present case, the recognition evidence given by the complainant did not require a Domican warning. The complainant, who had known the applicant for 25 years, was able to make observations of the applicant over a 20 minute period during which time she was very close to the applicant, conversed with him and observed him getting dressed. His Honour chose to give the jury a Domican warning, although the circumstances did not oblige him to do so and to that extent he gave an unduly favourable direction. Even if the trial judge's direction fell short of the full requirements of a Domican warning, it would not constitute an error giving rise to a miscarriage of justice, as no warning was required.

31 Although the conclusion I have reached is sufficient to dispose of this ground of appeal, it is desirable that I express my views as to the submission that the warning about the complainant's identification evidence was not in accordance with Domican v The Queen[30].

32 The warning which the trial judge gave was said to have been "wrongfully weakened" by the reference to the circumstantial evidence of the applicant's fingerprint on the shower door, which the Crown relied upon as supporting the identification evidence. The argument advanced was that the jury were wrongly directed to consider the reliability of the complainant's identification evidence as being bolstered by the circumstantial evidence of the applicant's fingerprint. Secondly, it was submitted that the judge's directions about the complainant's identification evidence did not amount to a judicial warning delivered with the authority of the judge's office. It was said that the dangers inherent in the evidence were not isolated and identified.

33 The trial judge correctly instructed the jury that the central issue in the case was whether it was the accused who entered the complainant's house and committed the crimes alleged. His Honour instructed the jury that identification evidence should be treated with great caution. At two distinct points in the charge, his Honour at some length emphasised the danger that must be guarded against that an honest witness may give unreliable identification evidence. His Honour directed the jury that they should scrutinise the evidence of the complainant carefully and directed the jury's attention to the usual factors which bear upon the circumstances and opportunity of the complainant to make observations. His Honour gave a full and sufficient Domican warning. The direction concluded with a warning that, though commonsense dictated that a person would be more likely to accurately identify someone they had known for many years, mistakes can occur even in such circumstances. His Honour reiterated that the jury should consider all of the circumstances in which the complainant's observations were made, notwithstanding that the complainant and the accused had known each other for many years.

34 Following a conventional Domican warning, the trial judge then gave the jury a summary of the evidence which the Crown relied upon as supporting the complainant's identification. His Honour then summarised the evidence upon which the defence relied as revealing substantial weakness in her identification evidence. Most of the matters referred to by the trial judge in summarising the parties' arguments were matters which bore upon the circumstances in which the complainant was able to make her observations and which affected her reliability. Included amongst these matters was the prosecution's reliance upon the applicant's fingerprint found on the shower screen door. His Honour then summarised the complainant's evidence-in-chief and cross-examination as to her identification of the applicant.

35 Later in the directions his Honour referred to evidence upon which the prosecution relied which confirmed or supported the evidence of the complainant, and gave a corroboration direction although he was not bound to do so. Amongst the pieces of evidence to which his Honour referred was the fingerprint of the accused on the leading edge of the shower door. This was said to be one of the matters capable of confirming or supporting the evidence of the complainant.

36 It was implicit from the impugned direction that it was open to the jury to reason as the prosecution had invited them to. No exception was taken to this direction. It had no tendency to mislead the jury. In The Queen v Rich[31] this Court rejected the contention that an error had been made by the trial judge in directing the jury that the circumstantial evidence could confirm the direct evidence of identification or that it negated the possibility that the identification was mistaken. Brooking, J A. observed:

"I am quite satisfied that they would not have gained the impression, either from the particular words picked out by the ground or from the charge as a whole, that they could treat the circumstantial evidence, not as confirming in the sense of supporting the evidence of identification, but as in some extraordinary way purging it of its supposed or possible deficiencies from a Domican point of view. The charge had no tendency to detract from the lengthy and admittedly adequate Domican directions given in the sense of suggesting to the jury that, in considering the identification evidence, they could ignore, or not give proper weight to, the Domican warning and any weaknesses which they thought that evidence suffered from. All that the charge did convey to the jury was that, while they were obliged to scrutinise the identification evidence in the light of the detailed warnings they had been given, they were not to treat the Crown case as constituted by that evidence alone but could also have regard to the circumstantial evidence relied on in asking themselves whether, on the whole of the evidence led in the trial, they were satisfied beyond reasonable doubt of the applicant's guilt.

It would be quite illogical for a jury to take the view that, because of the circumstantial evidence, suggested difficulties put forward by the defence with regard to the identification evidence - for example, the length of time the robber's face was seen and whether the witness had a full face view of him - ceased to be matters for their consideration, as if suddenly there had been a change in the state of the evidence with regard to the time for which or angle from which the face was seen."

37 These observations are apposite to the present circumstances. The relevant portion of his Honour's directions did not have the effect of undermining the Domican warning.

38 In R v Coxon[32] the trial judge had directed the jury that it could not use circumstantial evidence that may be supportive of positive evidence of identification. Pryor and Gray, JJ considered that the jury could rely upon other circumstantial evidence to be satisfied about the correctness of the positive identification evidence.[33] Coxon was subsequently considered in R v Bennett[34]. Doyle, C.J , whilst not doubting that the jury must consider identification evidence along with other evidence in the case in deciding whether guilt has been established, left open the question whether a jury should first consider the reliability of the identification evidence before considering what other evidence might support it.[35]

39 There is a line of authority that establishes that, where a trial judge has given full and fair directions as to the dangers lurking in evidence of identification, the cumulative effect of identification evidence which suffers from substantial deficiencies in conjunction with other evidence may be taken into account by the jury in determining satisfaction of guilt.[36]

40 In the present case, having received a full Domican warning the jury were entitled to have regard to circumstantial evidence which might give support to the identification evidence.

Ground 6 - The direction as to trespass and the applicant's intent

41 As I have already said, the complainant's evidence was to the effect that she had told the applicant, for some years, that he was not welcome at her premises and that she would not admit him to her premises. It was submitted nevertheless that his conduct in coming to the premises, and sometimes entering the premises via the rear door, left open as a reasonable possibility that the applicant believed that he was entitled to enter the complainant's house, or at least that his state of mind was one of carelessness as to whether he was entitled to do so. Based upon the proposition that this was a reasonable possibility, it was submitted that the applicant could not in law be a "trespasser" regardless of the criminal purpose which he may have entertained when he entered the premises: Barker v The Queen[37].

42 If it be assumed that the trial judge gave an erroneous direction as to trespass, this was not a material error which was productive of a miscarriage of justice. The trial judge is under an obligation to give the jury full instructions as to the relevant elements of the offence and to relate the law to the evidence and the issues in the case, including those raised by the applicant's defence. Axiomatically, however, the judge is required to explain only so much of the law relating to the elements of the offence as is necessary to enable the jury to resolve the issues in the case: Alford v Magee; Melbourne v The Queen[38]; Zoneff v The Queen[39]; RPS v R.[40]; Pope v R.[41]; The Queen v Jost[42]; R v Taylor[43].

43 In the present case, no issue arose in the trial either as to the applicant's permission to enter the premises, or as to the existence of a belief on his part that he had a right to do so. The applicant did not testify. In his record of interview, he said that it was five years since he had been inside the complainant's premises. He said that whenever he saw her she talked to him outside her house. The complainant's evidence that the applicant did not have permission to come to her home was not challenged, nor was her testimony that when he did come she told him to leave. In short, the evidence did not leave open as a reasonable possibility that the applicant thought that he had the complainant's permission to enter her house.

44 It was submitted on the applicant's behalf that it appeared the applicant would not take "no" for an answer. But, even if that be the correct view of the facts, it provides no support for the contention that the applicant believed that - or was at least reckless as to whether or not - the complainant had granted him permission to enter the house. As I have said, these matter were not in issue in the trial, and any error in the directions given by the trial judge was immaterial and not productive of any miscarriage of justice.

45 By contrast, in R v Taylor,[44] another case of aggravated burglary, issue had squarely been joined at the trial, between prosecution and defence, as to whether or not the defendant knew that she had no right to enter the room in which the intended assault took place. As Charles and Nettle, JJA said,[45] the adequacy of the charge was -

"to be assessed in light of the conduct of the trial and the questions raised by the Crown and by defence counsel".

Since knowledge of consent was in issue, the insufficiency of the Judge's direction on that issue meant that the conviction on the count of aggravated burglary had to be set aside.

46 The direction given in the present case raises a question which was adverted to, but not decided, by the Court in R v Taylor. The issue arises in the following way. Under s.76(1) of the Crimes Act 1958, a person is guilty of burglary if he or she enters any building as a trespasser with intent -

"(a) to steal anything in the building; or

(b) to commit an offence -

(i) involving an assault to a person in the building;

...

which is punishable with imprisonment for a term of five years or more."

47 The offence thus defined has two constituent elements, namely -

• entry as a trespasser; and

• the intention (at the time of entry) of committing a relevant offence.

48 In the present case, the learned trial Judge regarded the two requirements as having merged into one, as appears from the following passages of the charge:

"In a case such as this, there is a necessary connection between the trespassing character of the alleged and the intention to rape alleged, and that necessary connection is this.

It is inconceivable that [the victim] would have consented to the accused entering her house for the purpose or with the intention of raping her. If he had such an intention at the time of entering the house, then any consent she may have given was one given without knowledge of his intention and therefore not a consent to the particular entry that he made.

...

Accordingly, it becomes critical to consider the accused's state of mind at the time he entered the house, and it is possible to reduce the elements to (a) did he enter the house and (b) at the time that he entered the house did he intend to rape [the victim]...?"

49 There being no dispute but that the accused had entered the house, the only question for the jury - according to the direction - was whether they were satisfied beyond reasonable doubt that at the time of entry the accused intended to rape the victim. An affirmative answer to that question would, according to his Honour's direction, satisfy both elements of the offence - entry as a trespasser, and entry with intent to commit a relevant offence.

50 For the reasons already given, it is unnecessary to decide whether a direction in these terms was erroneous, since any such error was immaterial. I would, nevertheless, caution strongly against the use of such a direction, precisely because it collapses into a single element what Parliament appears to have quite deliberately specified as two separate elements, namely, trespassory intent and intent to commit a relevant offence. There is, in my respectful opinion, very considerable force in the views expressed by Brennan and Deane JJ in Barker v R,[46] referred to by the Court in Taylor,[47] that -

"a person with a permission or licence to enter premises which is not limited by reference to purpose or intention will not enter them as a trespasser merely because he enters with an intent to commit one or other of the unlawful acts specified in s.76(1). In such a case, the requirement of entry as a trespasser and the requirement of entry with intent to commit one or other of the specified acts are distinct and substantive elements of the offence."[48]

51 The applicant has not identified an error or combination of errors in the conduct of the trial which warrants this Court's interference in the conviction of the applicant. No ground, whether viewed in isolation or in conjunction with other grounds, can support the conclusion that there has been a miscarriage of justice. The application for leave to appeal against conviction should be refused.

Appeal against sentence

52 It was submitted that, as the offending was one course of conduct extending over an approximate 20 minute period, the total effective sentence, non-parole period and the sentence of five years imprisonment for aggravated burglary were manifestly excessive. It was conceded that, as the applicant fell to be sentenced as a serious sexual offender under s 6(e) of the Sentencing Act 1991 in respect of the count of rape and the second count of indecent assault, some cumulation would have been expected. Counsel submitted that the fact that the indecent assault was made wholly concurrent, while six months of the sentence for recklessly causing an injury was made cumulative, suggested error in the sentencing process. It was contended that the terms of imprisonment imposed on the count of aggravated burglary and the count of rape involved an element of double punishment for the same conduct. It was also submitted that, the sentence failed to reflect the facts that the applicant had a very low IQ level, the results of testing contained in the report of Mr Cummins dated 30 November 2004 were indicative of acquired brain damage caused by the consumption of alcohol, the applicant had a mood disorder, a personality disorder and a low level of insight. It was further submitted that the sentence infringed the principle of totality.

53 In my view his Honour erred in fixing the individual sentences imposed on the counts of rape and aggravated burglary and in determining the total effective sentence. The count of rape was the most serious offence yet the sentence on the count of aggravated burglary is higher than the sentence imposed on the count of rape. It appears that the sentence fixed on count 1 included a component for the crime of rape, and hence that there is an element of double punishment. Partly as a consequence of that error I also consider the total effective sentence to be manifestly excessive. These sentencing errors re-open the sentencing discretion.

54 Having regard to the circumstances of the offence and making due allowances for the personal circumstances of the applicant I would impose the following terms of imprisonment:

Count 1 Aggravated burglary three years' imprisonment;

Count 2 Indecent assault six months' imprisonment;

Count 3 Rape five years' imprisonment;

Count 5 Indecent assault nine months' imprisonment;

Count 7 Causing injury recklessly 12 months' imprisonment.

I would direct that one year of the sentence imposed on count 1 and three months of the sentence imposed on count 7 be served cumulatively upon each other and upon the sentence imposed on count 3, making a total effective sentence of six years and three months' imprisonment.

55 In fixing the non-parole period I have taken into account the conclusion reached by the sentencing judge that it would be beneficial to the applicant if there were a substantial parole period of supervision. I propose that a non-parole period of four years and three months be fixed. I would affirm the directions and notification made by the sentencing judge under s 6F of the Sentencing Act. The applicant retains his entitlement to the period of 256 days reckoned and declared by the sentencing judge as already served under the sentence that was imposed by the court.

[1] [1993] HCA 63; (1993) 178 CLR 193.

[2] (1992) 173 CLR 525.

[3] [2005] VSCA 151 at para [18].

[4] [2000] VSCA 125; (2000) 2 VR 43 at 54-58.

[5] [1993] HCA 63; (1993) 178 CLR 193 at 210-11.

[6] At 55 para [36].

[7] Lebroc at 56 para [37]; R v Konstandopoulos [1998] 4 VR 381 at 387-9.

[8] At 57 para [40].

[9] R v Konstandopoulos [1998] 4 VR 381 at 388; Le Broc at 55 [36].

[10] [1992] HCA 13; (1992) 173 CLR 555.

[11] (2001) 206 CLR 593.

[12] [1937] HCA 27; (1937) 57 CLR 170.

[13] At 181.

[14] [1992] HCA 13; (1991-2) 173 CLR 555 at 561-2.

[15] (1970) 55 Cr App R. 161.

[16] [1968] VicRp 17; [1968] VR 174.

[17] R v Easom (1981) 28 SASR 134; R v Bartels (1986) 44 SASR 260 at 270.

[18] (1993) 70 A Crim R 272.

[19] [2004] WASCA 62; (2004) 145 A Crim R 108.

[20] (2002) 149 A Crim R 363 at para [33].

[21] [1969] VicRp 17; [1969] VR 151.

[22] [1977] QB 224.

[23] [2000] Tas. S.C. 183 at [61] per Blow, J with whom Slicer, J and Cox, C.J agreed.

[24] [2005] WASCA 19 para [68] per Malcolm, C.J, Heenan and Simmons, JJ

[25] [2005] WASCA 20.

[26] Para [56] per Roberts-Smith, JA with whom Steytler, P and Wheeler, JA agreed.

[27] [2006] VSCA 5.

[28] Para [40].

[29] Para [42].

[30] (1992) 173 CLR 525.

[31] [2002] VSCA 17 para [77] per Brooking, JA with whom Winneke, P and Charles, JA agreed.

[32] [2002] SASC 165; (2002) 82 S.A.S.R. 412.

[33] Paras [32]-[33] per Pryor, J, para [85]-[86] per Gray, J.

[34] Unreported, [2004] S.A.S.C. 52 (11 March 2004).

[35] Ibid, at para [80].

[36] R v Burchielli [1981] VicRp 61; [1981] VR 611 at 616; R v Haidley and Alford [1984] VicRp 18; [1984] VR 229 at 231-2; R v Callaghan [2001] VSCA 209; [2001] 4 VR 79 at 99 per Winneke, P; R v Rich [2002] VSCA 17 para [78] per Brooking, JA, Garland (1991) 56 A Crim R 195; Thorpe (1982) 8 A Crim R 124; R v Clune and Gergis (unreported, 9 September 1991) per Crockett, Tadgell and Coldrey, JJ - BC 9203040; Rowley (1986) 23 A Crim R 371; R v Clune (No. 2) [1996] VicRp 1; (1996) 1 VR 1 at 5 per Callaway, JA

[37] [1983] HCA 18; (1983) 153 CLR 338 at 361-2 per Deane and Brennan, JJ, Mason, J at 344, Murphy, J at 352, Dawson, J at 371. *Draft as to the law of trespass and the question left open in R v Taylor [2004] VSCA 189; (2004) 10 VR 199.

[38] [1999] HCA 32; (1999) 198 CLR 1 at 53 per Hayne, J.

[39] (2000) 200 CLR 234 at 256 per Kirby, J.

[40] (2000) 199 CLR 260 at [41].

[41] [2000] VSCA 108; (2000) 112 A Crim R 588 at 592 per Callaway, JA.

[42] [2002] VSCA 198 at para [18] per Chernov, JA.

[43] [2004] VSCA 189 at para [23] per Nettle, JA.

[44] [2004] VSCA 189; (2004) 10 VR 199.

[45] At 209 [37].

[46] [1983] HCA 18; (1983) 153 CLR 338.

[47] supra at 207 [28].

[48] 153 CLR at 362; see also at 357-8, 359 and 361-2.