R v Sung Hwan Bang [1999] VSCA 46

5. The facts of the offences may be briefly stated. The complainant, who had come to Australia to study English, was at the time living with another young Korean female student (who may be called S) in an apartment in central Melbourne. The apartment had one main room with a double bed, which the young women shared, and a bathroom with a shower, toilet and basin. At about 3 a.m. on 12 June 1997 the applicant telephoned the apartment from Doncaster. He told S, whom he had previously met, that he was in the city and did not have a fare for a taxi home. He asked whether he could stay in the apartment until the trains started up again. In order to assist him, the young women in due course agreed. Shortly thereafter the applicant and a friend, Choi, arrived and were admitted by S. They smelled of alcohol. They produced five "stubbies" of Victoria Bitter beer. The four spent the next hour or so drinking, talking and smoking. The complainant drank one stubby and the men the remainder. According to her, the applicant's face was flushed and his speech slurred. Choi went to sleep first, fully clothed, on the bed. About 40 minutes later the applicant, also fully clothed, went to sleep beside Choi. The women were forced to stay up, drinking coffee. S left at about 7.40 a.m. for college.

8. According to the complainant, after she had changed into jeans and a skivvy and was starting to tie up her hair in the bathroom she felt the door pushing against her shoulder. She lost balance and stumbled towards the shower. The applicant approached her, pushed her against a wall, and tried to kiss her neck on both sides. She pushed him with both hands. She started screaming. He told her that there was no-one to help her because he had locked all the doors. She was very frightened. His eyes were bloodshot. She said to him that he needed to calm down and that they needed to talk. He started trying to take her clothes off. She heard something tearing and screamed. He pushed her on to the floor of the shower area and punched her left eye. Her eye was stinging and her nose bled. She asked the applicant for a towel, which he handed her, and she wiped the blood off. Although she resisted, he held her down and managed to take her clothes off and throw them out of the shower. He then took his own clothes off. He then overcame her resistance and raped her for what seemed like a long time, causing her great pain. (She was a virgin.) He dressed and went out of the bathroom.

11. The complainant said that she had a shower for about half an hour. She was very weak and it was hard to stand up. She felt tainted because of her cultural background (which, she explained, in re-examination set much store by the virginity of a bride at marriage) and had the shower because she felt dirty. She dressed in the bathroom. She noticed that the brassiere that she had been wearing was torn and put on another.

14. The complainant said that she found the applicant sitting at the window of the main room, smoking a cigarette. He told her not to cry and said, "Let's live together". She was crying continuously. Choi appeared to be asleep. The applicant continued to ask her to live with him and she told him to go away. Choi then woke. He looked around without making eye contact with the complainant. The applicant told Choi to leave first and wait downstairs, which he did. As Choi was leaving, the complainant asked the applicant to leave also. He refused, telling Choi that he had something to talk over with the complainant.

17. According to the complainant, she told the applicant to go and said that she had nothing to talk to him about. She then sat on the double bed. The applicant sat next to her. He then pushed her so that she lay on the bed, and prevented her from sitting up. He then lay on top of her and tried to kiss her on the neck. She told him that she did not like his doing so. When she did not respond to his tickling, he hit her with his open hand. He tried to undress her, whilst she tried to stand up. She begged him not to do those things to her and he replied, "No use", and pushed her on the bed. Despite her struggles, he held her down, took off the bottom part of her clothing and again raped her, causing her more pain than before. She told him that if he kept doing that she was going to die, but he did not reply. When he had finished, she showered for 20 minutes, dressed and came out of the bathroom. She was crying and having difficulty walking and talking. He told her not to cry and that he would contact her later. He left about 10 a.m.

20. The complainant said that she rang a Thai girlfriend, who came and took her back to her house in East Malvern, where the complainant was comforted. When they were alone the complainant told her Thai friend that she had been raped by S's friend. She then went to sleep for an hour or an hour and a half. After waking she rang S at the apartment at about noon. She cried while speaking on the telephone. S came to visit her at East Malvern. She reported the matter to the police and later that evening was examined by a Dr. Odell.

23. S gave evidence similar to that of the complainant up to the time of S's departure from the apartment at 7.40 a.m. She said that, before departing, she left a note for the two men about breakfast. S said that, when the complainant did not keep an arrangement for meeting at college, she returned to the apartment at about 10.30 a.m., but the complainant was not there. The bed, unusually, was not made, the table was not in order and there was a towel with spots of blood on it on the floor. The complainant telephoned her about 12 o'clock or just before that. The complainant cried a lot and used the Korean expression "tang he da", which in context meant raped. When asked by whom, the complainant named the applicant. When S arrived at the East Malvern house she saw that the complainant's eyes were puffed up, that her left eye was bruised and that she could not move very well.

26. Dr. Odell gave evidence of his examination of the complainant, which he conducted with the aid of an interpreter. The complainant had a black left eye with red and purple bruising of the lower lid, but he could not find any trace of a blood nose. The shower could have removed such traces. There was a faint red mark on the front of her neck like a love bite, four scattered red bruises on the right side of the back of the neck and tenderness on the left side of the head in the parietal region. There was abrasion of her external genitals and he noted skin tags representing the hymen, which the complainant said were quite tender. Dr. Odell said that his vaginal findings were what one would expect with sexual intercourse but did not give a clue whether there had been consent or not.

29. Choi gave evidence that he and the applicant had been drinking in Chinatown in the City of Melbourne from about 6 p.m. and had caught a taxi to Doncaster at about midnight. It was from there that the applicant rang S. They caught a taxi back to the city, arriving at about 3 a.m. He said that the four persons sat around talking, drinking and smoking in the apartment and that he had gone to sleep after about an hour. He did not wake until 9 a.m. or 10 a.m. The applicant and the complainant were there. He noticed that the latter's hair was wet. Choi left and the applicant told him to wait downstairs. The applicant came downstairs about ten minutes later and they left. He, Choi, had not noticed that the complainant was crying, upset or injured. In particular, her left eye was not swollen. Nor had he heard any screaming.

32. The complainant's Thai friend gave evidence that she had been telephoned by the complainant between 10 o'clock and 11 o'clock in the morning. The complainant was crying. The complainant told her, "Someone raped me", and said that it was her friend's friend who had done that. She said that she had been punched to the eyes. The witness said that when she arrived to collect the complainant, her eyes were swollen, one of them was bruised, and she was crying.

35. The applicant gave evidence. He said that on the morning of 12 June 1997 he woke at around 8 a.m. and had a glass of water which the complainant gave him when he asked her for it. He went to the bathroom. When he was washing his hands after urinating the complainant came into the room. She asked him if he liked her and hugged him. He did not say anything but hugged her. They then kissed and somehow ended up in the shower area. They continued kissing. She took her clothes off. Because it was such a small area he could not assist her in that. He took his clothes off and they somehow had sexual intercourse with him on top. This took about ten minutes. He then took his clothes out of the bathroom and dressed. The complainant had a shower. He sat in the loungeroom and had a cigarette. The complainant came out 15 to 20 minutes later and sat with him face to face near the window. They talked and smoked for an hour. Choi then woke and the applicant showed him the note that S had written, which stated that breakfast was prepared and that she would be back at 10.30 a.m. The applicant asked Choi if he was going to college and Choi said that he was. The applicant told him that he had to have a short talk to the complainant, and Choi said that he would wait downstairs. The applicant then told the complainant that he had a fiancee in Korea and that he and the complainant would be good friends and keep their sexual relationship a secret. That conversation took only about ten minutes and he then left. At that time the complainant had no injuries to her face. The sexual activity in the bathroom had, he said, been consensual and the alleged second incident did not occur.

13 It remains to note certain events affecting the course of the prosecution. The complainant reported the matter to police on 12 June and was examined by Dr. Odell, as already mentioned. At trial it was common ground that a few months later, the complainant withdrew the complaint, signing a statement to that effect on 5 September, only to revive it a few days later. According to the informant in evidence, the police had taken photographs which could no longer be found, and no record of the photographs had been retained. The police had also seized the complainant's clothes and a mattress protector when the complaint was first made, but these were returned to the complainant on 6 September when the complaint was withdrawn. The complainant said in evidence that she had thereupon destroyed the items in question (including the brassiere which she said was torn during the first alleged rape), intending at the time to return home to Korea. A few days later she changed her mind.

39. We turn now to consider each ground relating to conviction, commencing with those added by leave of the Registrar on the day before the appeal was listed for hearing.

43. In the course of his cross-examination of the applicant, the prosecutor put to him that he was lying "to get yourself out of trouble" or "to try and get yourself out of trouble". Although the applicant answered in the negative, it was submitted that the questioning was a "forbidden imputation about the accused's motive to lie to secure acquittal", forbidden because it had a tendency to undermine the protection afforded by the burden of proof which rested wholly upon the prosecution. The only authority cited for this was Palmer v. The Queen [1998] HCA 2; (1998) 193 C.L.R. 1 at 43 per Kirby, J.

46. Palmer was, of course, a case which dealt with the complainant's motive to lie, not the accused's. Kirby, J. cited Robinson v. The Queen [1991] HCA 38; (1991) 180 C.L.R. 531 at 535-6, but this, while concerned with the accused's motive to lie, contained criticism of the judge's direction that the jury should scrutinise the accused's evidence the more closely because of his motive to escape conviction: see also Stafford v. The Queen (1993) 67 A.L.J.R. 510. Nonetheless, Mr. Coghlan Q.C., for the respondent, accepted that what was true of the judge's direction was not altogether irrelevant to counsel's questioning. However, his submission was that the vice condemned in Robinson lay in the judge's suggesting that the accused's motive to lie was greater or stronger than that of any other witness; and that no such criticism could be made of counsel's questions on this occasion. In our opinion, that submission is correct and should be accepted. Ground 1 fails.

50. Counsel for the applicant was critical of the judge's charge in failing, he said, to give "a full and adequate Longman direction", referring to Longman v. The Queen [1989] HCA 60; (1989) 168 CL.R. 79. There is no doubt but that the judge, and more than once, stressed to the jury the need for it to consider the complainant's evidence with particular care - to treat it "with caution" and to "scrutinise her evidence with great care, looking for any inconsistencies, comparing it with the evidence of other witnesses ...", as he said on one occasion, adding:

"Generally you should be slow to rely on such evidence, unless it is consistent with other evidence of reliability, or is inherently probable. Of course, if after such scrutiny and heeding this caution, you are convinced of its truth, accuracy and honesty beyond reasonable doubt, you are at liberty to act upon it. "

Counsel described the judge as having attempted on three occasions to give a Longman direction, and having in the end failed to do it fully and adequately. The grounds of his complaint were, we think, two-fold: first, a very late acceptance by the judge of the need to include the words "dangerous to convict" and, secondly, a failure to identify specifically in that context the reasons in the evidence for that "danger".

55. It is convenient to set out what the judge said on the last occasion on which he directed the jury in this regard, after yet another further earnest submission by counsel for the accused that he should re-direct. His Honour said:

"You will realise that I've been telling you that it would be dangerous to convict unless after scrutinising the evidence in the way that I have described to you already you are entirely satisfied that it is safe to act on the evidence of [the complainant] and that it [is to be] remembered in the end that the burden of proof is on the Crown beyond reasonable doubt."

59. The submission that this direction came too late in the day, and could only have confused the jury because of the differences between what was said then and what had been said earlier, must be rejected. In context, there was no such risk. It was with this direction ringing in their ears that the jury withdrew again to resume considering their verdict and all that occurred thereafter was the direction given by the judge that they should persevere in their attempts to reach a unanimous verdict when they signalled some lack of success in that respect. Having regard to the context of the charge as a whole (about which more will appear in what follows), we are satisfied that it was not "too late" to give the direction which has just been set out; nor was it such that it "could have only led to confusion on the jury's part".

62. That leaves the judge's failure to identify those specific aspects of the evidence which, according to counsel for the applicant, led to the "danger" of convicting on the uncorroborated evidence of the complainant. There were four or five of these: the lapse of an hour and a half between the alleged rapes; smoking and talking with the applicant in that period; the withdrawal of the complaint to the police; the burning of the bed linen; and, more generally, the lack of observation by Choi of continuous crying or bruising or swelling to the eye of the complainant and, it would seem to be put, his sleeping through the complainant's alleged screaming. Two of these, the (temporary) withdrawal of charge and the burning of the bed linen were mentioned by the judge specifically as leading him to tell the jury, as already mentioned, that they "should treat the evidence of the complainant with caution" and that they "should be slow to rely on such evidence unless it is consistent with other evidence of reliability, or is inherently probable".

65. Yet these two points as well as the others were, in our opinion, no more than ordinary cross-examination points, taken in the course of the trial. It was said, however, that, at least taken together, these were the aspects of the evidence which led to the "danger" of convicting which had to be brought to the jury's attention, with the full weight of the judge's authority, in view of Longman. But Longman was a very different case: for in that case there had been very great delays since the alleged offences, making it very difficult for the accused properly to respond, the more so since in the meantime the complainant had become "the backbone of the family". Moreover, even when a "Longman direction" is necessary, there is no set form of words such as "dangerous" or "unsafe": R. v. Robinson [1996] 1 V.R**.** 402 at 408; R. v. Robertson [1998] 4 V.R. 30 at 42; but cf R. v. Jolly (unreported, Court of Appeal, 30 April 1998) per Ormiston, J.A. at p.1.

68. As Mr. Coghlan stated, a "Longman warning" is a very strong one indeed. Section 61 of the Crimes Act 1958 makes it plain that a warning is not to be given in every case in which a jury is invited to convict for sexual misconduct on the uncorroborated evidence of the complainant, and the need for some particular circumstances making such a direction necessary to avoid a perceptible risk of miscarriage of justice was emphasised in R. v. Miletic [1997] 1 V.R. 593. See also R. v. PJJ [1998] VSCA 96 at [16]. Suffice it to say that there were no such special circumstances here and, in directing, as he did up to four times, that the jury should treat the evidence of the complainant with caution, moving to convict only if they thought it consistent with other evidence of reliability or inherently probable, the judge gave a charge which was perhaps more favourable to the applicant than that which was required. Ground 2 fails.

72. The criticism here is that during the charge the judge said that "the case comes down to the oath of the complainant against the oath of the accused person". This, it was submitted, "attacks the presumption of innocence and is suggestive of an onus of proof upon the accused". Out of context, and taken on its own, perhaps it does, suggesting that the jury must decide whether the one case or the other is correct. But that was not the context in which it was said: far from it. What the judge said in this respect was included in a re-direction arising out of an application by counsel for the accused, seeking to have it made clear that there was no independent evidence in support of the complainant. Thus the judge said:

"... I direct you, as a matter of law, that there is no evidence independent of the complainant to show both that the crime happened and that it was the accused who committed it. The case comes down to the oath of the complainant against the oath of the accused person. That being the case I must direct you that you must subject the evidence of the complainant to close and careful scrutiny, as I directed you yesterday, and should only convict upon it if, after such scrutiny, you are entirely satisfied that it is safe to act upon her evidence. You may act on it, but only if, after such scrutiny, you are entirely satisfied that it is safe to act upon it. You should consider all the evidence, including that of Choi and the accused, from the point of view of the consistency of the complainant's version with the other evidence in the case, remembering that at all times the burden in the end is on the Crown to satisfy you beyond reasonable doubt of the guilt of the accused."

76. Two things may be said of this. First, so far as the acts that constituted the crime were concerned, it did come down to the oath of the complainant against the oath of the accused: see and compare R. v. Costin [1998] 3 V.R. 659 at 663, where Charles, J.A. used the same expression. Indeed, counsel for the applicant had addressed the jury in that very way, as appears from discussion during an exception to the direction. Secondly, in context, it was not an invitation to the jury to balance the case of the one against the case of the other, and what followed immediately made that perfectly plain. The judge immediately told the jury to subject the complainant's evidence "to close and careful scrutiny", to consider all the evidence "including that of Choi and the accused", and to convict only if the Crown discharged the burden "to satisfy you beyond reasonable doubt of the guilt of the accused". Moreover, as regards the wider context of the charge as a whole, very early in the charge his Honour in succinct and clear language directed the jury not only as to the onus and standard of proof but also as to the presumption of innocence. The jury could have been under no illusions. On at least four later occasions in the charge his Honour again stated the onus and standard of proof. Ground 3 fails.

81. This turns on the submission that the judge failed to direct the jury that "there was no evidence tending to confirm, strengthen or corroborate the evidence of the complainant that she had been raped". We have said already that the judge, more than once, told the jury that they should treat the evidence of the complainant with caution, should scrutinise it with great care, and convict only if after that scrutiny they were satisfied of its reliability. That scarcely does justice to all that the judge said, but the complaint is not that he failed to charge them that there was no evidence independent of the complainant tending to confirm her story; for he did - as can be seen from what was last quoted from the charge. The complaint is that, though the judge spoke of "no evidence independent of the complainant", he should have pointed out that such evidence was required to confirm, to support or to strengthen her case but no reference was made by the judge to confirming, supporting or strengthening. Counsel himself had earlier encouraged the judge to eschew the word "corroborate".

84. The point seems to be a hollow one because the passage which is now criticised occurs in a re-direction commencing a page earlier in the transcript of the charge than the passage quoted in paragraph 23 above. The judge commenced that re-direction by reminding the jury of what he had said earlier about complaints: that that evidence "is not to be regarded as evidence independent of the complainant giving her additional support to the probability that the crime happened as alleged by the Crown." We do not accept that what the judge said, in referring to "no evidence independent of the complainant", was not, in itself and without more, perfectly plain to the jury. But if there is a doubt about it, it is put beyond argument by what the judge said in commencing this re-direction.

87. Mr. Coghlan contended that anyway there was evidence capable of amounting to corroboration, if once the jury accepted that the bruising to the eye of the complainant was not self-inflicted. He argued that to have inflicted the bruise herself, in order, we may suppose, to support her claim of rape and to give the lie to any claim that she was but a rejected lover, bespoke a degree of sophistication which, when the jury saw the complainant in the witness box, they might well have had no difficulty in rejecting. We, of course, are in no position to assess the strength of such an argument. We express no opinion upon whether the bruising around the eye was capable of amounting to corroboration. Ground 4 fails in any event.

"Theoretically, these two counts of rape are two separate counts which in most circumstances I would be required to tell you should be considered separately, and in a sense, although not much turns on it, that is still the position. It is conceivable, but not likely, the way the Crown and the accused has each put their case to you that you could reach different verdicts in relation to those two counts, but as the way the case has been put to you, neither side has presented the matter that way. Counsel for the accused late in his address invited you to think of the case on the basis that the two counts stand or fall together, and that the case depends, on your assessment in the way that I have outlined it to you, of the evidence of the prosecutrix."

It was immediately after this that the judge instructed the jury, for the first time, that "the evidence of the prosecutrix, complainant, be examined with care".

96. The complaint made under ground 5 is that the judge failed to give the usual direction about there being one trial only to avoid the expense and inconvenience of two trials; and failed to direct them that they might bring in a different verdict on each count. There is nothing in the first point: the judge told them to treat the two counts separately, and that was enough. As for the second point, it is difficult to see how, in the circumstances of this trial, the jury could have brought in a verdict of, say, guilty on count 1 but not guilty on count 2: but be that as it may, it was counsel for the accused himself who encouraged the jury to approach the task on an "all or nothing" basis. It was submitted to us by Mr. Coghlan that, at least in this respect, the judge was entitled to put the case to the jury in the fashion in which the case had been fought, and we think that that is correct. Moreover, it is significant here that no exception was taken to what the judge said, confirming that, so far as counsel for the accused was concerned, he saw some forensic advantage to his client in the case being put that way before the jury. That there may have been forensic advantage is plain. There is nothing in ground 5.

100. It was contended by counsel for the applicant that there was "no evidence from the complainant, at the first reasonable opportunity, of having been raped and accordingly the learned trial judge erred in law in ruling that the evidence of the complainant was capable of constituting 'recent complaint evidence'". This was the way in which the argument was put in the "further and better particulars of the outline of the appellant's submissions on the appeal against conviction", but counsel told us that he now submitted that, frankly, he had made a fundamental error at trial in not objecting to the evidence of the alleged complaints and not seeking a direction that there was no evidence of recent complaint showing consistency on the complainant's part. But he persisted now in his submission that the evidence had been incapable of constituting recent complaint, and that the case should not have been left to the jury on any other basis.

103. The difficulty with this submission lies in the evidence. There was evidence that the complainant complained on more than one occasion on the day of these events. She complained, in a sense, to her Thai friend with whom she spoke in English and she complained also to her Korean friend, S, with whom she spoke in Korean. On the occasion when she spoke to her Thai friend, both said that she used the word "rape", and there was much discussion in the course of the evidence about whether the Thai friend would have understood the meaning of the word "rape" (if it was used). In relation to the conversation with S, the expression "tang he da" (or the like) had been used whose radical meaning is "seized", though the complainant said in evidence that she used the word to mean raped, and S said that she had understood it with that meaning. In the end, such subtleties were all matters for the jury. Suffice it to say that there was evidence by which they could conclude that there had been recent complaint, the judge left that issue to the jury for decision, and we see no error in the charge on this account. There is nothing in ground 6.

107. This and the original ground 2 were the only grounds taken in the notice of the application as filed, and they remained the only grounds until the notice was amended at a very late stage, as mentioned earlier. Ground 2 was then subsumed in the amended grounds, but ground 1 remained: that the conviction was unsafe on the evidence. As argued, this was focussed on the evidence of Choi. He had given evidence that when he woke, apparently after the events during which the first alleged rape occurred, he saw nothing untoward at all; certainly he had heard no screaming in the shower. This evidence, it was said, was not challenged and, if accepted, must have given the lie to the complainant's case. The argument on this ground was that the evidence of Choi was such as to make the verdicts unsafe and unsatisfactory.

110. In our opinion, Mr. Coghlan again had the rights of it: the acceptance or rejection of the evidence of Choi was simply a matter for the jury. Choi arrived in company with the applicant and, if not a "friend" of the applicant because their acquaintance had not been long, he was certainly an associate and had been party to the ruse by which the two men had ended up on the doorstep of the two women so late in the night. He may well have felt some guilt about what transpired; indeed the complainant said in her evidence that she suspected that he was only feigning sleep when she first saw him, apparently asleep, after the attack in the shower. We do not pursue the matter; it seems to us that, on a fair reading of the evidence, the acceptance or not of Choi's evidence was simply a matter for the jury. On that basis, the verdicts were not unsafe or unsatisfactory.

114. Finally, despite the late amendment to the grounds set out in the notice of application for leave to appeal against conviction, counsel for the applicant, in his very thorough submissions, made another application to amend to include a ground relating to the unanimity of the verdict. We could see no basis in the material before us upon which such a ground could succeed and so, in the course of the hearing, we refused that application to amend.

118. The applicant's educational and employment history was summarised by the judge in his sentencing remarks and it is unnecessary to repeat it here. His sister, his only sibling, gave evidence on the plea. She was then expecting to return to Korea in about six months' time, after which the applicant would have no relative in Australia. To judge by the sister's evidence at the plea, she probably left Australia about a month ago. She confirmed that the applicant was engaged to a woman in Korea. The wedding, which had been expected to occur in the last part of 1997, had not taken place, because of the surrender of the applicant's passport. The marriage was now in jeopardy.

121. On sentence, the grounds were brief: that the minimum non-parole period was manifestly excessive and that the learned trial judge had failed to give sufficient weight to the extra burden cast upon the applicant by incarceration, by reason of his being non-English speaking and being separated from his family and friends while in Australia. The applicant was here apparently as a student (or, to judge from the plea, for a holiday), and counsel for the applicant told us that he, counsel, had demonstrated to the trial judge that, as soon as he was released, the applicant would be deported. He had no claim to remain in Australia. Nonetheless, it was said that the judge ought to have fixed a non-parole period of, say, 2 years and not 3 years 6 months. Asserting that in the ordinary course a sentence of six years might be expected to attract a non-parole period of 4 years, counsel conceded that the judge appears to have allowed a further six months for parole. That no doubt made good his Honour's stated intention to reflect in the minimum term factors favourable to the applicant, foremost of which was the added difficulty which incarceration posed for him. Even so, the term fixed was said to undervalue what had been put on the plea. But the matters now relied upon were put plainly before the trial judge and it was for him, essentially, what weight to place on them. His Honour was correct to say that the crimes were accompanied by substantial violence, leaving the complainant with her loss of virginity and minor injuries. Having considered the reasons for sentence, we can detect no appealable error. Certainly we do not agree with the submission that the non-parole period is manifestly excessive.

124. For these reasons, we would dismiss both applications.