R v Yusuf [2005] VSCA 69

1 The applicant was convicted in the County Court at Geelong on 11 September 2003 of two counts of rape. Following a plea in mitigation, he was sentenced to a term of imprisonment of 5 years on each count. The sentencing judge directed that 6 months of the sentence on the second count be cumulated upon the sentence imposed on count 1. The total effective sentence was, thus, 51/2 years; of which his Honour ordered him to serve 4 years before becoming eligible for parole. The applicant has applied to this Court for leave to appeal against the convictions recorded and the sentences imposed.

2 This application once again calls into question the meaning of the provisions of ss. 36 and 37 of the Crimes Act 1958 (Vic.) in a trial of a prisoner for the crime of rape, as that crime is defined by s.38(2)(a) of that Act. Those provisions have previously been considered by this Court and the Court of Criminal Appeal in the cases of R. v. Lucien[1], R. v. Ev Costa[2] and R. v. Laz[3]. The provisions were originally introduced into the Crimes Act in 1991 and were later amended in 1997. They currently provide as follows:

For the purposes of Subdivisions (8A) to (8D) "consent" means free agreement. Circumstances in which a person does not freely agree to an act include the following -

(a) the person submits because of force or the fear of force to that person or someone else;

(b) the person submits because of the fear of harm of any type to that person or someone else;

(c) the person submits because she or he is unlawfully detained;

(d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing;

(e) the person is incapable of understanding the sexual nature of the act;

(f) the person is mistaken about the sexual nature of the act or the identity of the person;

(g) the person mistakenly believes that the act is for medical or hygienic purposes.

(1) If relevant to the facts in issue in a proceeding the judge must direct the jury that -

(a) the fact that a person did not say or do anything to indicate free agreement to a sexual act is normally enough to show that the act took place without that person's free agreement;

(b) a person is not to be regarded as having freely agreed to a sexual act just because -

(i) she or he did not protest or physically resist; or

(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person;

(c) in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances -

and relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction.

(2) A judge must not give to a jury a direction of a kind referred to in sub-section (1) if the direction is not relevant to the facts in issue in the proceeding."[4]

(a) 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."

("Sexual penetration" is defined in s.35.)

3 The purpose of the legislation, so it would seem, was to provide the community with a better appreciation of the elements of the crimes of rape and indecent assault, and, thus, to elucidate those elements by means of legislative definitions in respect of the mental elements of the crimes (s.36); and to lay down, by legislative fiat, appropriate directions which trial judges should give to juries when explaining those elements (s.37).

4 Thus, in the course of introducing the Bill into the Parliament in 1991, the then Attorney-General (the Honourable Mr. James Kennon) said:

"The Bill contains a clear and comprehensive legislative definition of the offences of rape and indecent assault. It will become an extremely valuable document not only for the courts but also in educating the general community about what the criminal law regards as unacceptable sexual conduct. The major elements of the common law offences are retained, but they are expressly stated and defined in order to remove uncertainty.

Of particular importance is the element of consent. The Bill makes it clear that consent means free agreement, not submission induced by fear of force or other harm. It means real and informed agreement, not the exploitation of a person who does not understand the sexual nature of an act or who is incapacitated by a drug.

There is a common view that a person who really does not want to be raped would strongly protest and put up resistance. This view fails to appreciate how terrifying an ordeal sexual assault is, and the impact of terror on the victims. To reduce the effects of such misconceptions in the criminal justice system, s. 37 of the proposed new sub-division (8) requires a judge to direct a jury not to presume that a person freely consented just because she or he did not protest or physically resist or did not sustain physical injury.

The Bill retains the requirement that, to be guilty of rape or indecent assault, a person must have known that the other person was not consenting to a sexual act or was aware that the other person might not be consenting. A person who makes an honest mistake, even unreasonably, does not commit either offence."

[The Attorney-General went on to point out that it was a "common belief" in the community that the subjective test which governed the mental element of rape made rape convictions difficult to obtain and that it ought to be replaced by an objective test leading to a conviction if the rapist's mistake "was unreasonable". The Attorney-General said that the Government rejected such an objective standard.] He went on:

"It must be emphasised that just because an accused claims that he believed the other person was consenting, does not mean that the jury has to believe him. If the claim is unreasonable, it may well not believe him. The Bill ensures that, in considering whether or not an alleged belief that the complainant was consenting was genuinely held, the jury will take into account whether the alleged belief was reasonable. The Bill requires the judge to direct the jury to this effect."[5]

5 The 1997 amendments (which I have flagged in italics in paragraph 1 above) were introduced because the Government of the day was not satisfied that the amendments which had been incorporated in 1991 were operating in the manner which had been intended. In particular, it was believed that judges were not confining their statutorily required directions to those which were relevant to the issues in the particular case before them. Thus, in introducing the amending Bill, the then Attorney-General (The Honourable Mrs. Wade) said:

"Section 37 (sic) of the Crimes Act contains a statutory definition of consent and also sets out a non-exhaustive list of circumstances in which a person does not consent (e.g. where the victim was asleep). Section 37 requires judges to direct juries in a particular way where consent has been raised as an issue in the trial. For instance, juries must be told that they must consider the reasonableness of an accused's alleged belief that the complainant was consenting to the act which is the subject of the complaint. Directions have been given to juries under section 37 in circumstances where the direction has no relevance to the trial before the court. For example, a direction about a prior sexual relationship between the victim and the accused, has been given in a trial where there were no prior sexual relationship in existence.[6]

The amendment to section 37 will ensure that the relevant directions are given only where consent is an issue in the trial. Further, the direction must include an explanation to the jury about the application of the direction to the facts of the case."[7]

6 It is the amendments made to s.37 in 1997 which have provided the foundation for the arguments addressed to this Court that the trial of the applicant has miscarried. I think it should be said at the outset, however, that the difficulties which have been experienced by trial judges in seeking to comply with these statutory provisions, demonstrate the undesirability of imposing inflexible statutory requirements upon a trial judge's obligation to give directions relevant to the issues which have arisen in the trial before him. The administration of the criminal justice system in this State is founded upon a series of flexible rules and procedures, some of which require the trial judge to give such directions to the jury, in the context of the issues which have arisen in the case being tried, as will ensure a fair trial to the accused. The introduction into that system of statutorily imposed directions of an inflexible kind will be bound to cause problems for trial judges from time to time.

7 The primary argument raised on this appeal by Mr. Priest on behalf of the applicant is that the trial judge (a very experienced trial judge) failed to comply with the obligations imposed upon him by s.37 of the Crimes Act when giving directions to the jury in this trial. In order to give meaning and context to the argument raised by Mr. Priest, it will be necessary to briefly state the issues which had arisen on the trial.

8 Those issues were in very brief compass because the entire trial had only lasted for a period of somewhat less than a day and a half - i.e. from the time when the trial commenced until the time when the jury retired to consider its verdict. Most of the evidence which was given was given by the complainant, and most of her evidence was given in response to questions put to her in cross-examination. Apart from her evidence, there was the evidence of the informant police officer who had been responsible for taking a very long record of interview from the applicant approximately one year after the relevant events had occurred. Furthermore, there was evidence from a woman who can best be described as the complainant's "landlady" to whom it was alleged a complaint had been made. Although there were contentions by the prosecution of "recent complaint" and "consciousness of guilt through flight", the relevant issues before the jury were very confined. Sexual intercourse between the applicant and the complainant was not in issue. What was in issue was whether the complainant had consented to such intercourse; and whether the Crown had proved to the requisite standard that the applicant knew the complainant was not consenting or was aware that she might not be consenting. On these issues the jury had before them the oral evidence of the complainant and the record of interview made by the applicant. The applicant did not give evidence upon his trial, nor did he call evidence.

The Facts in Issue

9 It is now necessary for me to say something briefly about the facts in issue in the trial. On the day when these rapes were alleged to have occurred the applicant was aged 39 years and the complainant approximately 20 or 21 years. On that day, namely 10 April 2001, the applicant and the complainant both boarded a Geelong bound train at the Footscray Station. The applicant had been staying with his aunt in Braybrook and the complainant was travelling from her mother's home in Footscray to Geelong where she was studying a designer course in clothing industries at the Gordon TAFE. The applicant had arrived in Melbourne approximately a week before 10 April from the United Kingdom. He was a Cypriot by birth but had married an Irish girl; and had lived in Ireland for several years. Accordingly, although his grasp of the English language was limited, he could nevertheless converse and make himself understood in that language. The applicant and the complainant sat next to each other in the carriage on the way to Geelong and continued to talk about matters of interest to each of them. When the train arrived in Geelong the applicant carried the complainant's bag for her. It was agreed that they should stop at a café for a cup of coffee; and thereafter they went to a restaurant for lunch where they consumed a meal and a bottle of wine. Most of their conversation was about Europe and the complainant's ambition to go there when she could. After they had finished lunch, the complainant said that the applicant had asked her if she would like to go to a "pub" with him. She said he "seemed like a nice person" and they went. She had another drink at the hotel, after which she said that she told him that she ought to be going. It was her evidence that, as they were leaving the "pub", he told her that he needed to get his cigarettes from "his place" which was just around the corner and it would only take a couple of minutes to get them. They went together to his room in the applicant's hotel, which was on the first floor. She said that she stayed at the door to the room, and he then told her to come in. Her evidence was that it was her belief that he locked the door and thereafter turned out the lights. She said that she sat on the corner of the bed and he pulled her down and, although she struggled, he grabbed her by the arm. She said that until this time there had been no indication of inappropriate behaviour on his part. She claimed that she told him she just wanted to go home, that she had a boyfriend, and that she didn't feel the same way about him. He then pulled off her top although she tried to stop him. He started to kiss her stomach and breasts. She said that she lay there crying and asking him to stop. She said that he then got off the bed and took off his pants; and then got back onto the bed and pulled her down. She said that she struggled but he pulled off her jeans and opened her legs and inserted his penis into her vagina (Count 1). She said she was crying and begging him to stop but he was "just doing what he wanted to do". She said that he then pulled his penis out of her vagina and turned her over holding onto her hips to keep her up. He then inserted his penis into her vagina again. This was count 2 on the presentment. He then tried to hug her and kiss her, but she sought to avoid him. According to the complainant he said:

"If you can't stop the rain, then you can't stop the way I feel about you."

According to the complainant, she then got dressed and stood there at the end of the bed looking at the doorhandle. She said that she did this for two hours. She said that she was crying and asking him to let her go.

10 In the course of cross-examination the complainant agreed that she had noticed a large amount of money in the applicant's bag in the corner of the room in which she saw at least $2,000. She said that, ultimately, he opened the door and she ran down the stairs. He went with her. She ran around the corner and noticed that he wasn't there any more but she kept on running and looking for a taxi. Finally she found a taxi and the trip took her about 45 minutes to a house in Geelong where she was boarding. She arrived there at about 2 a.m. Her "landlady" called out to her and then went to her room when she heard her crying. She asked what was wrong and she said that she had "been raped". Her "landlady" asked her if she wanted to go to the police and she said that she didn't; but just wanted to "forget the whole thing". She was then advised by her "landlady" to go to the police. On the following day she went to the police, who referred her to a doctor. There were no marks on her, and no signs of physical violence.

11 On the day after these events had occurred the applicant prematurely left the hotel where he had been staying in Geelong and travelled to Queesland. Thereafter he went to Europe. Approximately a year later he returned to Australia via Queensland where he was apprehended by the police on 28 May 2002. After being apprehended he participated in a very long record of interview with the police in the course of which he appears to have made some very frank answers. The record of interview was, as I have said, very lengthy but the salient points revealed a story which was opposed to that of the complainant. Essentially he told the police the following:

• That he had met the complainant when seated next to her on the train to Geelong and they had engaged in conversation about what they did; about Europe; and about her interest in going to Europe to pursue a career.

• That by the time the train had arrived in Geelong they had struck up a friendship which led to them participating first in a cup of coffee, then lunch, thereafter a drink at a bar and finally walking back to the hotel where he was staying later in the afternoon.

• By the time that they were walking from the bar to his hotel they were kissing and cuddling each other on the street; and that when they entered the hotel she came willingly to his room with him.

• Thereafter intercourse had occurred consensually. He had not forced her in any way and she had willingly allowed him to remove her clothes.

• After intercourse had occurred, he said that things had "changed". She asked him for $2,000; at which he got upset because he believed that she was "sleeping with him for money". The applicant put it in the following way:

"We went together to my room upstair, we had a sex, then up there she said she wanted $2,000 because she slept with me. ... 'I need the money' she said. I said 'Look I don't mind to give to you ... but it's hurt if you slept with me for money'."

•

The applicant said he did not remember locking the door; but that if he did he did it for the sake of privacy. There was no "key lock", as the complainant believed; merely a "snib" lock which could easily be un-snibbed.

• He told the police that it was only after they had slept together and he had rejected her request for $2,000 that she said she wanted to go home. He said:

"We had a sex together ... but it wasn't rape or force everything ... I was hurt more when she asked me money and when she didn't get it, when she didn't get it ... everything turn opposite."

• He said that when she left his room he went with her to see if he could get a taxi and she "walked away".

• He agreed that he had checked out of the hotel early because he was "uncomfortable" - "she trapped me". He said that he felt "uncomfortable" because she had demanded money and said that if she didn't get it she would go to the police. He said that he thought she might carry out her threat.

The Judge's Charge

12 As I have said, the evidence was in short compass and the judge's charge was accordingly brief. His Honour instructed the jury only in respect of those aspects of the law which were relevant to the issues which had been raised in the case. His directions on the issues of law, so far as they related to the issues which had been raised in the case, were - so far as I can see - full and accurate. Thus it seems to me that his Honour gave full directions as to the mental elements which had to be proved to establish the crime of rape - both as to the question whether the complainant was consenting and as to the mens rea of the applicant. The judge also gave directions as to "recent complaint" which were unexceptionable; and in relation to "consciousness of guilt" evidence by "flight". The fact is, as I have said, the directions so far as they went, were full and adequate and no exception was taken to them. Although, as it seems to me, there might have been some doubt as to whether the complainant's "complaint" was spontaneous and made at the first reasonable opportunity, no point was made about that at the trial nor in this Court.

Arguments on Appeal

13 The only ground upon which the applicant relied in this Court was premised upon the trial judge's failure to relate the directions of law to the facts in issue in the case. Mr. Priest submitted that it was, in any event, the judge's obligation, in accordance with the procedure dictated by common law principles, to relate the law to the relevant facts in issue. More importantly, he submitted that the provisions of s.37 of the Crimes Act - to which I have previously referred - make it a mandatory requirement that he should do so. He pointed out that that section now provides:

"If relevant to the facts in issue in a proceeding the judge must direct the jury that -

(c) In considering the accused's belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances -

and relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction."

14 Mr. Priest submitted that his Honour had quite deliberately eschewed the obligation which was imposed by this section when, towards the end of his charge, he told the jury:

"Now, members of the jury, I'm not going to summarise for you the evidence that's been put in this case. It was all heard yesterday and this morning, it is very fresh in your mind, it is in short compass and counsel have referred you to those parts of it that they want to. So it seems to me to be quite unnecessary for me to try and summarise it. ... Similarly, I'm not going to try and encapsulate or summarise the case that each of counsel has put to you. I would not be able to do them justice. I commend to you in full what they have said to you as recently as this morning, but I'm not going to endeavour ... to gild a lily or repeat it all to you. It just seems to me to be unnecessary to do that."

15 I did not understand Mr. Priest to be contending that the judge's failure to comply with the mandate contained in s.37 amounted to a "fundamental irregularity" going to the root of the trial of the kind described in Wilde v. The Queen[8]. Rather I understood him to be submitting that there were good reasons in rape cases why the legislature was imposing the obligation on the judge to relate the relevant law to the facts in issue, and that a failure to do so will constitute a miscarriage of justice. I think this assessment of the purpose of the section is accurate. The section is procedural in nature and the amending words which were added in 1997 were clearly inserted to ensure that only directions relevant to the facts in issue in a particular case were given; and that directions were not given which were superfluous to those facts. It is clear that the amending words add little to the obligations which are imposed by the common law upon a trial judge - namely to give to the jury directions as to such of the law as is necessary to enable them to determine the issues in the case before them and to relate that law to the facts in issue before the jury. This was Sir Leo Cussen's "great guiding rule" referred to by the High Court in Alford v. McGee[9]. This Court has, over the years, constantly reminded trial judges of this obligation (see, e.g. R. v. Franks (No.1)[10]; R. v. Anderson[11]; R. v. De'Zilwa[12]; R. v. Dardovska[13]). For my part, I do not read the words of s.37 (1) as imposing an obligation upon the trial judge of such a nature that a failure to comply with it will necessarily constitute such an irregularity as will render the proviso to s.568(1) of the Crimes Act inapplicable. Nevertheless, it does seem to me that the failure on the part of the trial judge in this case to comply with the provisions of s.37(1) in not relating the relevant law to the facts in issue, did amount to an irregularity which, in the particular circumstances of this trial, might well have affected the result. There was a sharp distinction between the events to which the complainant deposed in her evidence and those related by the applicant in his record of interview with the police. On the complainant's version of events, she entered the bedroom of the applicant unwillingly and, against her protestations, was forced onto the bed, was forcibly undressed, and intercourse thereafter occurred against her will. On the applicant's version of events, there was consensual sexual intercourse in which no force was applied to the complainant who, on the applicant's version, only became threatening after she had demanded from him a substantial sum of money which he refused to pay. If that had been the only evidence in the case, there would have been a stark difference between the versions of the complainant and the applicant clearly determinable by the jury without further instruction. However, there were other factors raised by the evidence which clearly bore upon the resolution of the conflict between the two principal protagonists in respect of the issues of consent, and the applicant's awareness. These facts included:

• The apparently agreed fact that she remained in the applicant's room for a period of some two hours after the intercourse notwithstanding that the door could have been opened by her to allow her earlier departure.

• The complainant's concession that she had observed a large amount of money in the applicant's possession amounting, as she said, to a sum in excess of $2,000. It would appear from the evidence that no such concession had been made until such time as the applicant had been interviewed and given his version of events to the police.

• The applicant, in his record of interview, said that prior to going to his hotel room, he and the complainant had held each other and kissed each other. In her evidence the complainant said that no such activity had occurred.

16 The matters to which I have referred in the preceding paragraph were not the only factual issues demonstrated by the evidence to divide the versions given by the complainant and the applicant. They were, however, issues which bore in a material way upon the ultimate issue as to whether the Crown had excluded beyond reasonable doubt the applicant's contention that, at the relevant time, he was not aware that the complainant was not consenting or might not be consenting; and were also materially relevant to the reasonableness of the applicant's asserted belief that the complainant was consenting to the sexual act. Accordingly, it would seem, at first blush, that when the judge was directing the jury that it was necessary for them to consider the reasonableness of the accused's belief that the complainant was consenting, it was not only desirable, but indeed required by s.37, that he remind them of those passages in the evidence (including the record of interview) which bore upon the matters to which I have referred in the preceding paragraph [14].

17 Mr. McArdle, who appeared for the respondent on the appeal, initially contended - as I understood his argument - that the "facts in issue" referred to in the provisions of s.37(1) of the Crimes Act were intended only to comprehend the "elements" of the crime of rape. Later, as I understood him, he expanded that to submit that the words "relevant to the facts in issue" mean "the evidence relevant to the elements of the offence". More particularly, Mr. McArdle submitted that s.37 had no real part to play in this trial because it was largely directed to those cases where the complainant to a sexual assault had "frozen" during the course of the sexual act. Furthermore, he submitted, that the issues in this trial were so obvious and so clearly expressed in the course of evidence as to render it quite superfluous for the judge to relate whatever directions of law he gave to the jury to the "facts in issue in the proceeding", whatever those words may mean.

18 For my own part I have some difficulty in accepting the submissions made on behalf of the Director. Whenever the central contention in a rape case is one concerning the states of mind of the accused and the complainant, and not one relating to the issue of penetration, the jury will always have to consider circumstantial evidence of facts bearing upon that central issue. It is, in my view, that evidence which bears upon the ultimate issue in the proceedings which is comprehended by s.37(1) of the Crimes Act when it requires the judge to relate any direction given in accordance with the section "to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction". Those words cannot, as it seems to me, be read - as I think counsel for the Director was submitting - as referring to the elements of the offence of rape or the "ultimate issues" in the proceedings. The distinction was drawn by the High Court in the recently published decision of Nicholls & Coates v. The Queen[15] particularly in the judgment of McHugh, J. where his Honour was discussing the distinction between a "collateral fact and a fact in issue"[16]. In most, if not all, cases a distinction will be drawn between proof of "a fact in issue" and proof of "the ultimate issue" or "the issue". When s.37(1) of the Crimes Act talks of the judge being required to direct the jury that "in considering the accused's alleged belief that the complainant was consenting to the sexual act, it must take into account whether that belief was reasonable in all the relevant circumstances - and relate any direction given to the facts in issue in the proceedings so as to aid the jury's comprehension of [that] direction", it seems to me to be tolerably clear that the requirement imposed on the judge is to relate his direction as to the accused's belief in consent to the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence. After all, that is the natural meaning of the words contained in the section, and is - in any event - in conformity with the procedural obligation imposed by the common law upon the judge, as made clear by Alford v. McGee (supra).

19 Counsel for the respondent further submitted that "facts in issue" cannot be created simply by counsel for the accused putting matters to the complainant in cross-examination. Issues raised in such a manner, so counsel submitted, are simply "credit issues" and are collateral to the probative facts in issue. Assuming for the moment that this submission ought to be accepted[17], the facts in issue in this case (to which I have in particular referred to above) did not necessarily arise during the course of the cross-examination of the complainant, but rather were raised in the evidence tendered by the prosecution to the Court. That evidence included the evidence-in-chief of the complainant and the record of interview between the police and the applicant which became evidence at the trial. Statements made by an accused to police officers which are tendered as evidence in the trial become evidence of the facts in issue whether they are inculpatory (in the form of admissions) or are self-serving exculpatory statements made by the accused. The whole statement goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict, and they can give whatever weight they wish to different parts of the statement. No doubt the failure of the accused to give evidence may influence the jury's attitude to the self-serving answers, but those answers remain part of the evidence in the trial upon which it is open to the jury to act[18].

20 For the reasons which I have given it seems to me that this was a case where the judge not only failed to comply with the obligation imposed upon him by s.37(1) of the Crimes Act, but was a case where that failure became material notwithstanding the brevity of the evidence in the trial. As I have said, trials of rape involving issues of consent and belief in consent - as distinct from denials of penetration - are cases which involve issues which are not always easy for the jury to grasp; a matter which no doubt underlay the introduction into the Crimes Act of the provisions now found in s.37. I am, accordingly of the view that the failure to comply with the provisions of s.37 constituted an irregularity in the trial amounting to a miscarriage of justice within the third limb of s.568(1) of the Crimes Act. Mr. McArdle submitted that, if the Court came to that conclusion, the irregularity was of such a nature that it could be

saved by the proviso to the sub-section. He again pointed to the shortness of the trial and the fact that no exceptions were taken to the judge's direction. It is true that no exception was taken to the judge's directions, but that is a "double-edged sword". As Mr. Priest pointed out in the course of argument, there are in a criminal trial "two ends of the bar table"; and each end has, or should have, an interest in ensuring that the trial does not miscarry. It should have been very evident both to the accused's counsel and to the Crown that the judge had failed to comply with his statutory obligation and that that was a matter which ought to have been brought to his Honour's attention. Although, as I have previously indicated, I do not regard the judge's failure to comply with the section as necessarily amounting to a "fundamental irregularity in the trial", it was nevertheless an irregularity, in the context of the trial, in respect of which the Crown has not discharged its burden of demonstrating that the proviso should be applied[19]. In my view this was a case where the failure of the trial judge to relate the law which he had given to the jury to the facts in issue deprived the applicant of "a chance which was fairly open to him of being acquitted"[20]. I would, accordingly, allow Grounds 2 and 3 of the applicant's grounds of appeal, set aside the convictions recorded by the jury, and direct a new trial.

21 I agree that the application for leave to appeal against conviction should be granted, the appeal allowed, the conviction set aide, and a new trial ordered, for the reasons given by the President.

22 I have had the advantage of reading the draft reasons for judgment of Winneke, P. and agree that, for the reasons given by the learned President, the appeal should be disposed of as he proposes.

[1] Unreported, Court of Criminal Appeal, 25 March 1994.

[2] Unreported, Court of Appeal, 2 April 1996.

[3] [1998] 1 V.R. 453.

[4] The words in italics were the words added by the 1997 amendments.

[5] Hansard, Legislative Assembly, Tuesday 26 November 1991 at pp.1998 and 1999.

[6] This would appear to be a reference to the proceedings in the case of R. v. Laz (supra). That case was decided on appeal in December 1996. It would appear from the appeal decision (p. 428) that the trial judge had directed the jury, in circumstances where there was no evidence of it, in terms suggesting a prior sexual relationship.

[7] Hansard, Legislative Assembly, Thursday 9 October 1997 at p.430.

[8] [1988] HCA 6; (1988) 164 C.L.R. 365 at 372-3.

[9] [1952] HCA 3; (1952) 85 C.L.R. 437 at 446 where the High Court commented:

"And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case and (2) of telling the jury in the light of the law what those issues are."

[10] [1998] VSCA 100; [1999] 1 V.R. 518 at 524-5.

[11] [1996] VICSC 17; [1996] 2 V.R. 663 at 666-7.

[12] [2002] VSCA 158; (2002) 5 V.R. 408 at 416-7.

[13] [2003] VSCA 4; (2003) 6 V.R. 628 at 633.

[14] In this respect, it is perhaps pertinent to note that, after the jury had deliberated for some hours, they returned to court to ask for a transcript of the record of interview because, as the Foreman told his Honour:

"It just seemed that it would be easier to find some of the things rather than having to listen through for hours."

The judge gave them the transcript but warned them that it was not what was found in the transcript but what they heard on the tape which was the evidence which they could act upon.

[15] (2005) HCA 1, 3 February 2005; [2005] HCA 1; (2005) 79 A.L.J.R. 468.

[16] His Honour said (at paragraph [53], p.480):

"Thus where a circumstance affecting credibility is so inextricably connected with a fact in issue that it will probably determine that fact, a trial judge should generally admit evidence of that circumstance." (emphasis added).

Again, (at paragraph [56], p.481) his Honour said:

"The collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness's denials concerning matters of credibility should be regarded as generally admissible if the witness's credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force."

[17] As to which see R. v. L.S.S. (2000) 1 Qd.R. 546 at 554-5, per Thomas, J.A.

[18] See R. v. Su [1997] 1 V.R. 1 at pages 64-65.

[19] As to which see R. v. Konstandopoulos [1998] 4 V.R. 381 per Callaway, J.A. at 392; and the recent statement of McHugh, J. in D'Orta-Ekenaike v. Victoria Legal Aid & Anor. [2005] HCA 12 at paragraph [163].

[20] See Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493 at 514 per Fullagar, J.