R v Zilm [2006] VSCA 72

Court of Appeal (Vic)|2006-04-05|Before: CALLAWAY, EAMES and ASHLEY, JJ.A.

Criminal law - Rape - Indecent assault - Directions to jury - Directions as to reasonableness of accused's belief that victim was consenting - Failure to relate directions to facts in issue, especially to relate directions to accused's account in record of interview - Failure of counsel to take exception as to adequacy of directions - Crimes Act 1958, ss.37, 38(2), 39.

Criminal law - Evidence - Lies by accused in record of interview - Prosecutor initially relies on lies as evidence of consciousness of guilt - Prosecutor subsequently relies on lies only as relevant to credibility of account in record of interview - Jury not adequately directed as to withdrawal by prosecutor of initial contention as to lies.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 Section 38(2)(a) of the Crimes Act 1958 contains a definition of rape. It provides that a person commits rape if he or she (1) intentionally sexually penetrates another person (2) without that person's consent (3) while being aware that the person is not consenting or might not be consenting. The three elements[1] are therefore (1) intentional sexual penetration of another person, (2) the absence of that person's consent and (3) awareness, on the part of the accused, that the person is not consenting or might not be consenting. As I explained in R. v. Soldo[2], those elements are not difficult to explain, using the language of the Crimes Act. It is confusing, and inappropriate, to run the first and third elements together either by saying that the third element relates to "the guilty mind of the accused" or that the Crown must prove that the accused "intended to commit the crime of rape in the sense that, at the time of sexual penetration, he realized that the complainant was not consenting or might not be consenting".[3]

2 Those blemishes in the charge are not, however, among my reasons for joining in the orders made on 13th February 2006.[4] I am more concerned that this was a case where it was essential for the jury to understand the point made by the Full Court in R. v. Lucin[5], by Southwell, A.J.A. and me in R. v. Ev Costa[6] and again by Batt, J.A. and me in R. v. Munday[7]. The belief of an accused person that the complainant was consenting to a sexual act does not have to be reasonable as a matter of law. The Crown must prove that, in fact, the accused was aware that the complainant was not consenting or might not be consenting. The unreasonableness of his belief does not mean that he is guilty. The direction required by s.37(1)(c) of the Crimes Act, where it is relevant to the facts in issue, makes it more important than ever that the jury understand the true significance of the question whether the belief of the accused person was reasonable.

3 In the present case, the judge said:

"In determining whether the accused believed she was consenting you must take into account whether that belief was reasonable in all the circumstances. This is one of many guides which we may consider in determining the fundamental question: what was the state of mind of the accused at the time of the act of penetration. Did he intend to commit the crime of rape in the sense that at the time of the penetration he knew that the other person was not consenting, or being aware that this person might not be consenting, persisted in the penetration regardless of whether that person consented or not."

I have already criticised the third sentence in that passage. The first sentence reflected s.37(1)(c). The second sentence was not, in my respectful opinion, sufficient, in the circumstances of this case, to alert the jury to the point made in R. v. Lucin, R. v. Ev Costa and R. v. Munday. I wished to consider the matter further at the time the Court pronounced its orders, but I am now satisfied that the conclusion expressed by Eames, J.A. on this part of the argument is correct.[8]

4 The first and second sentences of the passage set out in [3] above illustrate the way in which a phrase that is unexceptionable in its context may change its meaning, or become unclear, when it is used in a different way or is abbreviated. Section 37(1)(c) requires the judge to direct the jury that, "in considering the accused's alleged belief that the complainant was consenting", the jury must take into account whether that belief was reasonable. It is easy to see how reasonableness might be relevant to an alleged belief. There is a subtle change when the word "alleged" is, understandably, omitted and the jury are told that, in determining whether the accused believed that the complainant was consenting, they must take into account whether that belief was reasonable. A step has been taken in the direction of suggesting that the belief has to be reasonable. Similarly, in R. v. Ev Costa,

5 Southwell, A.J.A. and I said that the reasonableness or otherwise of a belief is "no more than a guide to whether it was in fact held". It is less informative simply to say that the reasonableness of an accused person's belief is "one of many guides" to be considered in determining his state of mind. It is more specific than that. It is a guide to whether an alleged belief was in fact held or, more accurately, whether the Crown has excluded that alleged belief beyond reasonable doubt. The solution is not to restore the word "alleged" in the charge but to give a direction of the kind suggested in R. v. Munday.[9]

6 I agree with Eames, J.A. that more needed to be said about the record of interview. A record of interview does not have to be summarized in every case, but here it contained the most important part of the applicant's defence. It was not enough to refer to it briefly and to say that the jury could watch the videotape if they wished. The law had to be explained by reference to the facts of the case. Part of that exercise entailed relating the issue of the applicant's belief to what he said in the record of interview. I also agree with his Honour that more should have been said to correct the prosecutor's final address. The agreed formula was insufficient. The jury should have been directed to disregard the prosecutor's assertions that the applicant lied because he knew he had done the wrong thing. They should have been told that, if the applicant lied, that could be used as a matter going to his credit but that they must not reason that he lied because he was guilty. To keep the charge realistic, they might also have been told that there are cases where that kind of reasoning is permissible but that this was not such a case.

7 The applicant, who was aged 26 years at the date of the alleged offences, was presented for trial in the County Court on one count of indecent assault and two counts of rape (involving digital penetration), contrary to ss.38(2) and 39 of the Crimes Act 1958. He pleaded not guilty but on 5 August 2005, after a four-day trial, he was convicted and sentenced on all counts.

8 The applicant had no prior convictions. The learned sentencing judge imposed the following sentences. On count 1 - indecent assault - nine months' imprisonment. On count 2 - rape - two years and three months' imprisonment. On count 3 - rape - two years and three months' imprisonment.

9 Three months of the sentence imposed on count 1 and six months of the sentence imposed on count 3 were ordered to be served cumulatively upon each other and upon the sentence imposed on count 2. The total effective sentence was three years' imprisonment and her Honour directed that two years of that sentence be suspended for a period of three years.

10 The applicant applied for leave to appeal against his convictions and sentence. The sole ground with respect to sentence was that the sentences imposed were manifestly excessive.

11 The three grounds of appeal against conviction were as follows:

"Ground 1: The Learned Trial Judge in her charge failed to adequately explain to the jury the issue of consent. In particular Her Honour failed to relate the law to the facts of the case concerning the state of mind required of the applicant.

Ground 2: The Learned Trial Judge in her charge to the jury failed to summarise the evidence in the trial in a manner that was fair to the accused. Specifically she failed to give sufficient weight to the record of interview of the accused.

Ground 3: The learned trial judge failed to adequately instruct the jury as to the use if any the jury could make of lies said to have been told in the applicant's police interview."

12 The applications for leave to appeal were heard on 13 February 2006 and after hearing the submissions of counsel the Court announced that the application for leave to appeal against conviction would be granted, the appeal would be treated as having been heard instanter and allowed, the convictions quashed and a retrial be ordered. The Court announced that it would publish reasons for decision later. At the time of making those pronouncements the Court advised that at least a majority of the members of the Court agreed with the course proposed. I now provide my reasons for agreeing to the orders made by the Court.

13 The acts constituting the alleged offences happened at some time after about 8.30 am on the morning of 4 July 2004 and occurred in the complainant's double bed, in which she and the applicant had slept overnight. The applicant had known the complainant since 1988 and they had been friends since 1999. At the time of the alleged offences the complainant was aged 22 years. The relationship had been platonic, so far as the complainant was concerned, but she suspected that the accused had had a "crush" on her in the past.

14 The narrative may relevantly commence with the events of the previous evening. At about 7.15 p.m. on Saturday, 3 July 2004, the complainant, her sister ("SB") and the applicant were together at a house in Richmond which was shared by the complainant and three other people. Some of her housemates were present and, in all, six people spent the evening together, drinking, playing karaoke and watching videos. Later in the evening a discussion arose as to where the applicant would sleep. The applicant complained about having to sleep on the couch and the complainant's sister proposed that she would sleep on the couch and that he could sleep in the complainant's bed. The complainant agreed to that proposal.

15 The complainant had consumed a couple of glasses of red wine during the evening and the applicant had been drinking wine and possibly also tequila. Later in the evening those present commenced to watch a movie, but after about half an hour the applicant fell asleep and began snoring. The other people then told him to go to bed, which he did. At some time after midnight on 4 July 2004 the complainant got into her bed, wearing a singlet top, tracksuit pants, underpants and socks, but not a bra[10]. She went to sleep almost straight away, with her back towards the applicant. The complainant told the jury that the applicant had slept in her bed on previous occasions but there had been no sexual intimacy between them on those occasions.

16 The complainant gave evidence that in the morning she became aware of herself being caressed on her stomach and breasts. She said that she was "kind of dreaming that I was being felt up". She woke up and found that the applicant had his hand down her underpants and was digitally penetrating her vagina with his finger. She said the applicant said nothing to her when this occurred. She said that she did not know what to do, as she was scared "he might get a bit physical". She said that she wiggled a bit and then lay on her stomach and the applicant moved his hand away. She pretended to be asleep for about 10 minutes then got out of bed, went to the bathroom and vomited. It was then about 9.20 a.m

17 The complainant then went outside and brought in some washing. The applicant joined her outside but did not say anything to her about what had occurred in bed. The applicant suggested that they go to a café for breakfast and the complainant and her sister accompanied him At about midday, after completing breakfast, the applicant drove the complainant and her sister to the complainant's parents' house, where they separated.

18 Later that afternoon the complainant and her sister were travelling together by car when the complainant rang a friend of hers, to say that she would ring the friend, again, when she got home. She later complained to her friend about the applicant's behaviour. At the same time the complainant told her sister what had occurred and began crying. It was decided, between the three of them, that the matter should be reported to police, which was done that day.

19 Under cross-examination, the complainant agreed that at one time the applicant had told her that he was in love with her. That was when he was married, the marriage later breaking down. She had then told him that she only wanted a platonic relationship but, as she said in evidence, thereafter, and up to the time of this incident, she suspected that the applicant still had feelings towards her. He would telephone her to discuss personal matters. About once a week over the couple of months prior to this incident they would meet for coffee. He would hug her on occasions, and hold hands with her. She agreed that on a number of occasions (which, she said, she did not count) they had shared a bed. On occasions when they had shared a bed the applicant had snuggled up to her, "like a hug or a snuggle" and had put his arm around her and put his hand on her stomach. She said that on those occasions she would just "sort of shrug him off", but not in an impolite way. She agreed that she did not always move his hand away immediately, but would sort of assess the situation and when she felt uncomfortable would move his hand away.

20 The complainant agreed that she had said at the committal proceeding that had she been awake she would have told the applicant to move his hand away from her breasts. She conceded that the touching of her stomach and breast could have been part of a dream, like something that she thought was "out of context" with the dream she had been having. She said she did not have an actual memory of the touching of her stomach and breasts. She could not remember saying anything to the applicant, but agreed with the propositions put by defence counsel that whilst she was sleeping she might have "mumbled a response to something he said", and that she may have moved, in response to being touched, while she was in a dreamlike state. She said that as she first woke he was penetrating her vagina with his finger, then he caressed her bottom, then penetrated her again.

21 She lay there, stunned, and had to think for a while, she could not say how long. Then she wiggled and moved and either that dislodged his finger or he moved his hand away. She then waited a while before getting out of bed, but could not say how long. She wanted it to appear to the applicant as though she was asleep and had not been woken by his action in penetrating her.

22 In re-examination she said she had no recollection of talking to the applicant, nor of him speaking to her.

23 The friend of the complainant, to whom she had first confided, told the jury that the complainant had said to her on the evening of 4 July 2004 that the applicant had slept in her bed and that when she had woken in the morning he was "fingering her". The witness said that when the complainant was recounting to her these events she was crying, and she told the witness that she had been hyperventilating.

24 The complainant's sister also gave evidence that the complainant said that the applicant had "fingered her while she was asleep".

25 A witness who had attended the evening function said that three bottles of wine had been consumed between those present but that nobody was intoxicated. That witness was not present when the applicant went to bed.

26 The applicant was interviewed by police. He confirmed in almost all details the complainant's evidence of events of the evening prior to him going to bed. He told police that he had slept in the complainant's bed on previous occasions, although he did not have a relationship with her. She was a close friend, whom he had known for four years. He said that in the morning when he woke up he said something to the complainant, who seemed to be awake. He did not recall what she said. He said he could not remember the question he asked, nor what her reply was. He then said "And then I suppose I continued to fond -, not continued, but I fondled her". He admitted that he played with the complainant's breasts but said that she was then awake and she pushed her buttocks back into his groin, which he "assumed indicated" that she was awake. He said that he then "got a bit carried away" and penetrated her vagina with his finger two or three times. He said a minute of two later the complainant got out of bed and went to the toilet and he went outside to have a cigarette. There was no conversation between them as to what had taken place. He wanted to speak to her but "wasn't sure what to say", and she was acting as though nothing had happened, so he just went along with it.

27 The applicant told police that when he was penetrating the complainant she did not say anything but he assumed she was awake as she had spoken to him immediately before "the fondling started". By her rubbing her bottom into his groin he assumed she was awake and aware of what was happening. He told the police that he was guessing that she was saying that she had been asleep and, he added, that "If I had've known, that would not have taken place". He said that when he penetrated her she rolled over, but away from him, "which indicated to me to stop". He said that when he went outside for a cigarette he was not sure if she was going to say anything. He had a girlfriend and he was "sort of scared" about what "perspective" the complainant took as to his actions.

28 The applicant agreed with the police interviewers that he and the complainant had not had a sexual relationship in the past. He said he had asked her about having a relationship many years before, but she had said "No". He agreed, too, that she had not given him the impression that she wanted a sexual relationship, but he said that the complainant flirted with him a lot. He said he did not put that forward as "an excuse".

29 After the police interviewer had recounted the complainant's version of events the applicant said, more than once, "I did not know she was asleep". When asked whether he believed she had consented to him penetrating her with his fingers the applicant replied "actions speak louder than words. I - sorry, well, as I said before, she was rubbing into me." Asked if he construed that action on her part as being consent he said "I suppose in a way".

30 The applicant told police that he had been telephoned by the complainant on the evening of the incident and she said that she had been asleep. He said "I did not know, and I was disgusted and shocked with myself for that fact and I did not know that she was asleep." He said that she was asking him "what happened or why it happened".

The issues in the case

31 Defence counsel submitted in his final address that the critical issue in the trial was not the state of mind of the complainant but that of the accused man. In his address he conceded that any movements made in the bed by the complainant, which the applicant had taken to indicate that she was awake and consenting to his sexual acts, might have been unwitting, and may have occurred when she was in a dream-like state. Thus, but without expressly abandoning the issue, defence counsel accepted that the jury might be satisfied that the complainant had not in fact consented to any of the sexual acts that took place. Counsel submitted, however, that the crucial question was the effect of the complainant's movements on the state of mind of the applicant, and he referred to particular factual issues which were of importance in determining whether that element had been proved beyond reasonable doubt.

32 In her charge to the jury her Honour dealt separately with the law concerning indecent assault and rape. The terms of her directions concerning the state of mind of the complainant and the state of mind of the accused were in almost identical terms, save for substituting words such as "sexual penetration" when the rape direction was given, instead of "indecent assault" or "assault", which were the terms used when that offence was being discussed.

The directions of law as to indecent assault

33 Her Honour identified the issues in the case in terms of the elements in law constituting the offence of indecent assault. After discussing the other elements of the offence, the direction with respect to the applicant's state of mind was in these terms:

"Moreover the Crown must prove that the accused intended to commit the crime of indecent assault in the sense that at the time he assaulted her he was aware that the woman was not consenting or else realised that she might not be consenting and determined to assault her, whether she was consenting or not.

In determining whether the accused believed [the complainant] was consenting you must take into account whether that belief was reasonable in all the circumstances. This is one of many "guides" which you may consider in determining the fundamental question: what was the state of mind of the accused at the time of the act of the assault? Did he intend to commit the crime of indecent assault in the sense that at the time of assaulting her he knew that the other person was not consenting, persisted in so assaulting her regardless of whether that person consented or not?"

34 The judge then told the jury that counsel agreed the central issue was whether the accused knew that the complainant "was not consenting or [was] aware that she might not be consenting to the accused touching her breasts".

35 At the conclusion of her directions as to the law on indecent assault, the judge gave what she said was a summary of the evidence as to that count, that being the evidence of the prosecution witnesses. The summary of the complainant's evidence in chief stopped at the point where she said she was touched on the stomach and breasts. The summary of cross-examination referred to her doubts about whether, when sleeping (as she believed she had been), she had said something and had moved her buttocks towards the accused. The judge also repeated her evidence that she woke when she was already being penetrated. The summary of the evidence of other witnesses included the evidence of her complaints about being sexually penetrated. The only reference to the account given by the applicant in his record of interview as to the indecent assault count was her Honour's statement:

"You have also heard what the accused told the police in relation to this charge when interviewed by the police. That evidence is contained in the tape recording which is one of the exhibits, and you can listen to that in the jury room, if you wish to do so". [My emphasis.]

The directions as to rape

36 When her Honour directed the jury as to rape she set out the three elements of the offence, as follows: (1) the sexual penetration; (2) the absence of consent; (3) the accused's guilty mind, as defined. As to the third element, she gave a direction in identical terms to that just given for indecent assault**,** save for substituting "sexual penetration" for "assault" or "indecent assault" or "touching her breasts", wherever appropriate. Additional directions were added with respect to the rape counts, in the following terms:

"So if the accused placed his finger in the complainant's vagina and knew that she was not consenting or was aware she might not be consenting, but determined to have sexual penetration of her, whether there was consent or not, he is guilty of rape. The Crown must therefore prove: (1) the sexual penetration; (2) the absence of consent; (3) the accused's guilty mind[11] as defined. And the Crown must prove each of these elements beyond reasonable doubt. If it proves them all the accused is guilty of rape. If it fails to prove one or more of them, he is not guilty of rape.

Both the prosecutor and counsel for the defendant agree that the main issue in this case is whether the accused knew that [the complainant] was not consenting or was aware that she might not be consenting on each occasion when he put his finger in her vagina. The Crown says that the accused knew that [the complainant] was not consenting or was aware that she might not be consenting when he put his finger in her vagina. The Crown says that you should reject what the accused says in his record of interview as a matter of commonsense when you analyse it. The defence submits that the Crown has not proved beyond reasonable doubt that the accused [sic] was not consenting, or might not be consenting.

In the record of interview the accused said that he said something to the complainant when he first woke up. He cannot remember what it was. He then described how he touched her breasts. He then said that she pushed back against his groin so he assumed that she was awake." [My emphasis.]

37 Her Honour then said that she would remind the jury of the evidence on the rape counts. The evidence of the witnesses was referred to again, in some detail. In summarising the evidence as to the rape counts the complainant's account was given in more detail than had been the case as to the indecent assault count. Save for what might be inferred from the summary of cross examination, the version of events asserted on behalf of the accused, in particular in his record of interview, received no more detailed reference than the passage highlighted in the above paragraph. Upon completion of that summary her Honour said:

"You have heard what the accused told the police in his record of interview in relation to these charges. You can listen to the tape recording of that evidence in the jury room, if you wish to do so."

[My emphasis.]

38 Her Honour then summarised the addresses of counsel.

39 Grounds 1 and 2 are closely related. Ground 1 complains that the judge, generally, failed "to relate the law to the facts of the case" concerning the state of mind of the applicant at the relevant time. That broad complaint under ground 1 would be better expressed in the terms of the second obligation imposed on a trial judge in directing the jury as to the law, as stated by the High Court in R v Chai[12], namely, to explain the law to the jury in a manner which relates the law to the facts of the case and the issues to be decided in the case. An additional, discrete, complaint was also made under ground 1, concerning the direction given by her Honour as to the reasonableness of any belief held by the applicant that the complainant was consenting to his acts. Ground 2 is concerned with the judge's obligation, in a case like this, to fairly and fully summarise the evidence contained in the record of interview.

40 An important backdrop to the discussion of the grounds of appeal is the nature of the questions asked by the jury in the course of their deliberations.

The jury questions

41 The jury retired to consider its verdict at 3.06 p.m. on 25 July 2005. At 4.34 p.m. they returned to court with a question requesting "Clarification on the importance of the state of mind of the accused as opposed to the argument of the need for consent".

42 Rather than responding to the jury's question, as to the "importance" of the applicant's state of mind, her Honour merely repeated the direction which she had already given, twice, as to the three elements of the offence of rape. Having completed that brief resume of the elements, she added "So one looks at the complainant, second element. And the third element looks at the mind of the accused". Her Honour then adjourned the court until the following day and after the jurors were sworn, pursuant to s.51A of the Juries Act, they then departed for the evening.

43 On the following day, at 11.56 a.m., the jury returned with another question. They asked, "Can we have access to the court's transcript and if not all of it, then the judge's statement." Her Honour told the jury that her practice was not to give copies of the transcript of evidence and that her own directions were not yet in transcript. She offered to have the video replayed of any portions of the evidence required. Her Honour invited the jury to retire to consider whether they would request such material.

44 When the jury returned some twenty minutes later, they requested "closing instructions to the jury by the judge excluding summary of events". Her Honour then, for the fourth time, gave the jury the directions on law in the terms that she had used in the course of her charge, first by reference to indecent assault, then (repeated again) as to rape. In the course of those directions, her Honour emphasised that "it is her state of mind which must be proved by the Crown. The Crown must prove that at the time of the assault the woman was not consenting to that act." Her Honour next directed attention to the state of mind of the accused, stating that the Crown must prove that he was aware that the woman was not consenting or else realised that she might not be consenting. She then repeated the direction as to reasonableness of belief as earlier given, several times, stating, once again, that it was merely one of many guides "which you may use in determining the fundamental question" as to his state of mind at the time of the act of indecent assault. Her Honour then said:

"Now as I told you before, both counsel agreed that the central issue in this case is whether the accused knew that [the complainant] was not consenting or was aware that she might not be consenting to the accused touching her breasts. Now that is the first count, that is the count of indecent assault."

45 Her Honour then dealt with the elements of rape, repeating again precisely the same directions as she gave for indecent assault, as set out in the previous paragraph, save for substituting the terms "sexual penetration". The jury then left the court room at 12.33 p.m.

46 At 2.19 p.m. that afternoon the jury had a question which, in their absence, her Honour recounted to counsel as: "They said they wanted to view [the complainant's] record of interview". The prosecutor queried what they meant and her Honour said that she would clarify that. Then when the jury returned she said "You have asked to view [the complainant's] record of interview. You mean by that, I take it, that you want to hear her evidence". The transcript records that the foreman made no audible response. Her Honour said "I will arrange for that to be replayed" and the video of the complainant's evidence was then played to the jury. That commenced at 2.27 p.m. and was interrupted at 3.00 p.m., then resumed at 3.03 p.m. and concluded at 3.26 p.m. At 3.46 p.m. the jury entered the court with verdicts of guilty.

Ground 1: Adequacy of Directions

47 In her charge to the jury the judge very briefly, but accurately, summarised counsel's arguments, and reminded the jury that defence counsel had asserted that: "The ultimate question is, 'What was the accused's state of mind? What did he know at the time?'" Her Honour said that counsel had submitted that when the accused put his hand on the complainant's stomach she did not react as she had on previous occasions, thus leading him to assume that she was consenting to that act. Counsel contended that when the complainant moved her buttocks towards the applicant, that led to his belief that she was prepared to engage in sexual activity on that occasion. Counsel submitted that "the movement of the complainant's buttocks was the critical fact: the applicant said it happened, the complainant said 'it could have happened'". Her Honour said counsel contended that the jury could not be satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting or might not be consenting, given the concessions made by the complaint in her evidence.

48 Valuable as was that reminder of the defence address the learned trial judge was obliged to give directions on the law and issues with the weight of her authority, and it is contended for the applicant that her Honour's directions as to the law and the issues was almost entirely confined to a discussion of the elements of the offences, relying on the then standard directions, in terms taken almost word for word from the charge book. Save for the matter discussed by Callaway, J.A. in R v Soldo[13], and again in his judgment in this case[14] the charge book accurately stated the law, but it is now said that her Honour failed to adequately relate the directions of law to the issues of fact that had emerged in the case and to the evidence which bore upon determination of those issues, and, in turn, to proof of the elements of the offences.

Relating the directions to the facts in issue.

49 The obligations which the common law imposes on a trial judge in directing a jury as to the issues of law and fact in a case have been the subject of many recent decisions of this Court and also of the High Court. The statement of the High Court in Alford v Magee[15] is invariably cited as the leading authority. The Court adopted the "great guiding rule" of Sir Leo Cussen, agreeing 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."

50 As Ormiston, J.A. has observed[16], the High Court re-affirmed that passage in Alford v Magee on some nine occasions in recent years. In R v Chai[17] the High Court, in considering whether the trial judge was obliged to put a case to the jury that had not been argued on either side, stated two relevant considerations. First, that it was not the function of the judge to expound on the law as to principles which the jurors did not need to know in order to resolve "the issues that arise for decision in the case" and, secondly, that "the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided". Their Honours held that the judge should direct the jury only on so much of the law as they needed to know "in order to decide the issues that arose from the charges, the evidence, the case for the prosecution and the defence case".

51 It is apparent that notwithstanding the frequency with which appellate courts have addressed the question of the obligations of trial judges to relate the law to the facts in issue many conscientious judges have had difficulty applying those principles in the context of a busy criminal trial list, but it is essential that the principles be both understood and applied.

52 It must be said at once that there is no absolute rule, because what may be required by way of directions in order to ensure a fair trial may vary according to the circumstances of the case, with factors such as the length of the case, the complexity of the issues and the manner in which the case is conducted by the parties, among others, all being relevant to that question[18].

53 It is clear, however, that the judge must go beyond a mere formulaic adoption of the principles of law set out in the charge book. In some cases it will be essential that in relating the law to the issues in the case the judge must deal with the evidence and the arguments with some precision and in some detail. Such a case was R v Anderson[19], where Winneke, P. warned that the model directions in the charge book had to be tailored to the particular case so that the directions on law were related to the facts of the case; the task being to tell the jury, in light of the law, what the real issues were.

54 In Anderson the first count was one of attempted burglary with aggravating circumstances, the circumstance being that the accused was armed with firearms. He was acquitted on that count but convicted of an alternative count of attempted burglary and on a third count of threatening to kill. The President concluded that, given the way the case was conducted, it was essential in proof of the other counts that the Crown establish possession of firearms and threats of injury to the complainant. The President held that the judge "was obliged to consider and canvass with the jury what the possibilities were in the event that they were not satisfied that the applicant was carrying those weapons"[20]. He concluded that the jury needed assistance, based on discussion of the evidence, as to whether they could be satisfied of the relevant intent on count 2, if they did not make the finding on count 1 as to possession of firearms. Failure to provide that degree of assistance meant that the attention of the jury had not been focussed on the real issues which arose for determination, and thereby constituted a miscarriage of justice, the President held[21].

55 Not all cases will require that degree of elucidation of the issues, the issues in many cases being relatively obvious and clear cut. In some cases, however, and in my opinion, the present case is an example, a subtle but critical issue may be subsumed in the discussion of what appears to be a relatively straightforward issue concerning an element of the offence. In tailoring the charge book to the case at hand, the overriding requirement is that such directions be given as are required to ensure a fair trial[22]. In all cases the task must be performed to the extent necessary to assist the jury to understand the defence case[23].

56 As I have said, what was required in Anderson may not be required in all cases. So much was recognised in R v Andrakakos,[24] a case which addressed related issues concerning jury directions (with particular relevance to the issues later discussed under ground 2), and in which Winneke, P. agreed with the judgment of Ormiston, J.A. (Buchanan, J.A. also agreeing). Ormiston, J.A., after citing Alford v Magee and R v De' Zilwa[25], held:

"What is required must depend on the circumstances of each case. Of course the essential elements of the accused's case must be stated to the jury in one way or another but it does not follow that a mere point by point repetition of counsel's address is always or necessarily the appropriate way to go about that. If the accused gives evidence and calls witnesses, ordinarily there ought to be a summary of what that evidence is, but it may be preferable to summarise such evidence by way of repeating the relevant essential points as answers to each part of the Crown case as it is separately summarised. Where no evidence is given or called by the accused, and the only evidential material in his or her favour appears from the record of interview, much discretion will lie in the trial judge as to how that is put to the jury. Sometimes much of that evidence is incoherent and conflicting so that it will not serve the accused's interests to have that repeated verbatim or even in summary form. At other times what appears from the record of interview, though self-serving, may amount to a completely different account of events, about which the jury should be reminded in some way or another. Again, although a general summary of what the accused contends through their counsel can suffice, a fair exposition of how it is contended that each disputed element of the Crown case has not been established may be preferable."

[Footnotes omitted.] [26]

57 Although in Andrakakos, the Court was primarily addressing the obligations to summarise the evidence and the addresses of counsel, these aspects of the obligation to charge the jury are all closely related as, indeed, is the question of the appropriateness of the trial judge commenting on the facts when charging a jury. There is no inflexible rule as to how much of the arguments and evidence must be summarised[27], nor as to the assistance which the judge should proffer the jury. In the joint judgment in Domican v The Queen[28], a case concerning the dangers of identification evidence and the requirement that a judge give the weight of judicial authority to directions, their Honours, speaking generally, held that a trial judge was not obliged to discuss all of the evidence or to analyse all of the conflicts in the evidence, nor to put every argument of counsel, but they added:

58 "Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way".[29]

59 What is clearly not adequate in any case is the approach which Winneke, P. deprecated in Anderson, of the delivery of a sterile direction of the legal elements of the charge, which merely told the jury what in law could constitute the offence[30]. Adopting the phrase of Lord Hailsham, the President said that the charge should be "custom built" to make the jury understand the task in relation to the particular case. In Fingleton v R[31] McHugh J., referring to a section of the Queensland Criminal Code, which he said mirrored the common law, held that Alford v Magee required a trial judge to "identify the real issues in the case, the facts that are relevant to those issues and [provide] an explanation as to how the law applies to those facts."

60 The common law obligations of a judge in every jury trial have recently been summarised by Maxwell, P. Nettle, J.A. and Redlich, A.J.A. in R v AJS[32], as follows:

"(a) to decide what are the real issues in the case;

(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;

(d) to explain to the jury how the law applies to the facts of the case; and

(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case."

61 In the present case it was submitted that the directions failed to adequately comply with both the common law requirement to relate any directions given to the facts in issue in the case and also the obligation stated in s.37(1) Crimes Act 1958.

62 Section 37(1) requires that, where relevant to the facts in issue in a case, certain directions relevant to the question of consent must be given to the jury. The directions under s.37(1)(a) and (b) concern the state of mind of the complainant, and those directions were given by the judge and are not relevant to the grounds of appeal. The relevant direction for the purpose of ground 1 is that contained in s.37(1)(c) which requires that the trial judge "must 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". That direction was also given, as I have discussed.

63 The sub-section further requires that as to each of the directions under (1)(a)-(c) the judge must "relate any direction given to the facts in issue in the proceeding so as to aid the jury's comprehension of the direction". Although the obligation to give a direction, in terms, as to the reasonableness of belief may be regarded as a new legislative requirement, and not a mere re-statement of the common law, the obligation to relate a relevant direction concerning the belief of the accused to the "facts in issue" is consistent with the common law obligation of a trial judge, as earlier discussed.

64 In R. v. Yusuf[33] the issue of consent was raised in a rape case, the competing accounts being that of the complainant in her evidence and that of the applicant, contained in the record of interview. In that case, as in this, the trial judge correctly stated the law as to consent and gave full and accurate directions to the jury as to the mental elements which had to be proved to establish rape[34], including the question whether the complainant was consenting and also as to the mens rea of the applicant.

65 As in the present case, the contention in Yusuf was that the Trial Judge had failed to relate the directions on law to the facts in issue in the case. Winneke, P. identified areas of divergence between the two accounts[35] and noted matters raised in the evidence which were relevant to determination of the question as to whether or not there was consent, and also relevant as to the applicant's awareness of the absence of consent. Having identified those items of evidence, his Honour continued:[36]

"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 paragraphs."

66 Winneke, P., with whom Charles and Chernov, JJ.A. agreed, rejected the contention that the requirement under s.37 to relate the directions "to the facts in issue in the proceeding" would be met if the judge merely identified the elements of the offence of rape or "the ultimate issues" in the proceedings. The President held[37]:

"...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 word 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. Magee". [38] [Footnote omitted].

67 As Winneke, P. emphasised, "the facts in issue" in that case were not merely those which arose in cross-examination of the complainant but included the record of interview; the statements therein also being evidence of the facts in issue, whether they are inculpatory (in the form of admissions) or were exculpatory self-serving statement.[39]

68 In Yusuf, as in this case, no exception was taken to the judge's direction. Nonetheless, and notwithstanding the brevity of the evidence in the trial, the omissions in the direction were held to constitute a miscarriage of justice within the meaning of the third limb of s.568(1) of the Crimes Act. Winneke, P. rejected the contention in Yusuf that the short duration of the trial reduced or eliminated the obligation on the trial judge to comply with the requirement to relate the law to the facts in issue in the trial.

69 Winneke, P. held[40]:

"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."

70 Notwithstanding the relevance of those remarks to this case, the failure of trial counsel to take exception or to then identify the defects in the structure of the charge which are now highlighted on appeal has caused me to very carefully consider whether I ought conclude that a miscarriage of justice in fact occurred. The failure of counsel to take exception at trial suggests that counsel, having sat through the charge and given it close attention, did not perceive that its terms or structure gave rise to the risk of a miscarriage of justice[41]. In many cases, failure to take exception in such circumstances would be decisive as to the outcome of the application for leave to appeal[42]. I am persuaded, however, that it can not be so in this case.

71 The jury in this case exhibited some anxiety on the issue of the state of mind of the accused. They had sought, but not received, directions as to the "importance" of that issue. It was the question of the applicant's state of mind, not the question whether the complainant had consented to the indecent assault or penetrations, that was the critical issue in the case. The primary evidence as to his state of mind was contained in his record of interview, not in the evidence of the complainant, which he did not challenge. True it was that the jury had that exhibit, as a video tape, but they did not have a transcript of his record of interview. Whilst it might be thought likely that they would have viewed the video taped interview during their deliberations, it is not known that they did, and they were twice told that its viewing was optional. The contents of the record of interview were not summarised for them.

72 Her Honour did attempt to relate the law to the facts in issue, in particular in the passage of her charge highlighted in paragraph [36] above, and also by relating her evidence summary, and confining it, to evidence relevant, in turn, to the indecent assault and then the rape counts. That might have been sufficient, if there had been a more precise statement of the relevant issues in this case - in particular, the issue concerning the state of mind of the applicant - and if the summary of the evidence and addresses expressly dealt with the contents of the record of interview.

73 The critical issues had to be more precisely identified in the course of the directions on law, and had to be highlighted by referring to the competing contentions, and the evidence relevant to resolution of those issues. When the directions of law were given there needed to be reference to the evidence of the complainant relevant to the critical issues (including the suggested concessions made by her in her evidence), as to what she had said and done (or might have) at the time when the applicant performed the sexual acts. Most importantly, the issues of fact and law had to then be related to the evidence of the applicant (as contained in the record of interview) as to his state of mind, and the factors that influenced it. That evidence had to then be related to the ultimate issue of whether it had been established beyond reasonable doubt that he had the necessary belief as to the absence of consent.

74 The deficiencies in the charge were compounded by her Honour's response to the jury's last question during their deliberations. In my opinion, her Honour ought then to have reminded the jury of the record of interview and its contents and ensured that the jury took it into account in their deliberations on the question of the state of mind of the applicant. The necessity to have done so is confirmed when consideration is given to the next issue raised by the application for leave to appeal, namely, the directions concerning reasonableness of belief.

75 In my view, the complaint under ground 1 concerning the general obligation to relate the law to the facts in issue is made out.

The directions as to reasonableness of belief

76 A further, discrete, complaint made under ground 1 is that, when regard is had to the circumstances of this case, the direction as to the "reasonableness" of the belief of the applicant was inadequate. The direction was in standard terms, and complied with the requirement of s.37(1)(c) of the Crimes Act, but Mr Meredith submitted that more was required.

77 In R. v. Munday[43] Callaway, J.A., with whom Batt, J.A. agreed, held:

"In this case there was no risk that the jury would think that the matter of reasonableness was determinative. It was, as his Honour said, simply a guide and one guide among many. It will often be desirable, nevertheless, to balance the direction required by s.37(1)(c) with a clear statement that the accused's belief does not have to be reasonable as a matter of law and that the Crown must prove that, in fact, he was aware that the complainant was not consenting or might not be consenting. As Southwell AJA and I said in R. v. Ev Costa (unreported, Court of Appeal, 2 April 1996 at 22):

'Thirdly, whilst the standard charge is perfectly correct in directing the jury that '[i]n determining whether the accused believed she was consenting, you must take into account whether that belief was reasonable in all the circumstances', it would often be desirable to explain to the jury in simple language that the reasonableness or otherwise of a belief is no more than a guide to whether it was in fact held_._ As the Full Court said in R. v. Lucin (unreported, 25 March 1994) at pp.10-11, 'It does not follow that the unreasonableness of [the accused's belief] renders the defence untenable. It is merely a factor for the jury to consider in determining the accused's state of mind'."[My emphasis added; emphasis in original omitted.]

78 In my opinion, the direction about treating reasonableness as merely a "guide" did not sufficiently emphasise that, even if the jury concluded that the applicant had held an unreasonable belief that the complainant was consenting to his sexual acts, he would be entitled to acquittal if the Crown failed to disprove that his belief, although unreasonable, was genuinely held at the time. That was the additional direction suggested by Callaway, J.A. in the passage highlighted by me in the extract from Munday, cited above. The fact that particular care was required in directing on this topic is emphasised by the questions asked by the jury during their deliberations.

79 I am persuaded, therefore, that the further complaint made under ground 1 is also made good, and that the jury ought to have been given a further direction, as suggested in Munday.

Ground 2: Summary of the evidence

80 In all but the most straight forward of trials, it will be necessary for the trial judge to remind the jury, in an even-handed way, of the evidence, and to relate it to the facts and issues raised by counsel[44] However, a judge is not required to exhaustively summarise all of the evidence in a trial[45]. As I have already discussed, the obligation of the trial judge is to relate sufficient of the evidence and sufficient of counsel's arguments to the jury as to enable the jury to determine the issues in the case and any matters which might be relevant to their determination of the counts[46].

81 The extent to which evidence will need to be summarised will depend on a range of factors, including the duration of the trial, the importance of the evidence of a witness to the issues in the case, the complexity of the evidence, the lapse of time between the giving of the evidence and the jury's deliberations, and the comprehensiveness of the addresses of counsel[47]. In some instances the jury will need to be reminded of substantial portions of the transcript of evidence of a witness, but other witnesses may merit only a brief summary, if any reference at all. It is the task of the judge to make that assessment and I acknowledge that it can be burdensome[48]. When done carefully, however, the evidence summary will highlight the evidence which may be of importance to the resolution of the issues in the trial[49], and will not burden the jury by burying that evidence amidst an unnecessary recitation of unimportant evidence[50]. Although complaint was made (and with justification) that the evidence relevant to the critical issues in the case was not sufficiently highlighted, no complaint was made that her Honour omitted important evidence from her summary of the evidence called in the Crown case. The problem lay primarily with her Honour's treatment of the record of interview.

82 Save for the one brief passage which I have earlier highlighted[51], the judge failed to summarise the version of events given by the applicant in his record of interview, and her Honour twice told the jury that the record of interview was something to which they need make reference only if they wished. When summarising the address of defence counsel (which summary only occupied two paragraphs) the judge did not refer to any answers in the record of interview, at all, but merely gave brief reference, in relatively general terms, to the defence contentions.

83 In my opinion, whilst the learned trial judge conscientiously endeavoured to assist the jury in her directions, this was a case that required more by way of "tailoring" of the charge book standard directions, and more by way of elucidation of the critical evidence and its importance to the determination of the issues in the case. I have no doubt that had counsel met their obligation to assist the trial judge in her task, by inviting her Honour to supplement her charge in the ways I have suggested, she would have done so[52]. I have concluded, however, that the failure to summarise the contents of the record of interview, meant, of itself, that the case for the accused had not been adequately placed before the jury[53].

84 In the result the complaint raised in ground 2 is also made good.

85 In view of my conclusion as to grounds 1 and 2 it is not necessary that I deal with ground 3 at length, but the issue was fully argued and as I have concluded that that ground is also made out it is appropriate that I give my reasons for so concluding.

Ground 3 - Lies

86 Until his final address the prosecutor had made no suggestion that the Crown would rely on lies in the record of interview for the purpose of demonstrating a consciousness of guilt on the part of the applicant. To the surprise of the judge and defence counsel, he then did so, identifying a number of passages of the record of interview, not all of which, however, were lies, and without making clear which passages he contended constituted lies. For example, the first answer referred to, namely, "I've slept in her bed previously", had been conceded by the complainant to be true.

87 The prosecutor next referred to the applicant's statement that he had said something to the complainant, because she seemed to be awake and also his assertion that when he fondled her breasts he thought she was awake. The prosecutor then referred to the applicant's assertion that the complainant had pushed back into his groin with her buttocks. The prosecutor highlighted the applicant's assertion that that movement he "thought indicated - well I assumed indicated" that the complainant was awake and consenting.

88 The prosecutor then said:

"While it is a matter for you, what you make of all of this, but it is our submission that he lied to the police. He lied because he knew he had done the wrong thing in relation to [the complainant]. He knew, and this is the critical issue in this trial, it is a narrow issue, consent. One, he knew that she was not consenting. Secondly, he knew or believed that she might not be consenting at the time that he penetrated her and touched her on the breasts."

89 At this point the judge interrupted the prosecutor during his address and invited the jury to take a break. Upon the jury departing the judge expressed her concern at the submission made by the prosecutor immediately before the break. Her Honour suggested to the prosecutor that it had been a consciousness of guilt submission, which the prosecutor denied. Her Honour complained that he had given no warning that he was going to make a submission that the applicant lied "because he knew he had done the wrong thing", thus raising consciousness of guilt in the trial. The prosecutor responded that he had never been asked.

90 Her Honour asked the prosecutor to identify what was the lie to which he was referring when he submitted "he lied because he knew that he had done the wrong thing". The prosecutor said, "That's generally the record of interview". Her Honour said it was necessary for the prosecutor to identify precisely what the lies were if she was to direct the jury on consciousness of guilt. Her Honour asked the prosecutor to identify the lies told in consciousness of guilt and counsel identified 11 answers in the record of interview.

91 On the question whether she should give a direction to the jury, her Honour noted that defence counsel did not want to draw attention to lies in the record of interview but added "something has got to be said about the fact that the statement was made by the prosecutor that he lied because he knew that he had done the wrong thing." Defence counsel submitted that the prosecutor should retract it and her Honour should tell the jury that lies went only to the credit of the applicant[54].

92 After a short adjournment the prosecutor announced "we have come to a formula that is mutually agreeable between the Crown and the defence" and her Honour agreed that the formula stated would obviate the need for a direction.

93 When the jury returned the prosecutor said to them that as to the way he dealt with the record of interview:

"What we say is this, the Crown's position is this in relation to the record of interview and that I need to say when I said he lied to the police was that in relation to that record of interview, when you analyse it, the Crown says that you should reject it as a matter of common sense. Simple as that. Bearing in mind that her Honour told you at the opening of this trial, and what I told you in my opening, that the onus of proof was on the prosecution. The accused man doesn't have to prove or disprove anything. It starts with us from go to whoa. But we say taking into account what he said in that record of interview, you would reject it as a matter of common sense."

94 Shortly after dealing with this matter the prosecutor concluded his address.

95 Mr McArdle accepted that the way in which the prosecutor had first dealt with the question of lies did raise the issue of consciousness of guilt, but he submitted that when he later adopted the agreed formula his position had altered so that lies were relevant only on the question of credit, concerning the applicant's account. There had been no miscarriage of justice, he submitted. Not only had the prosecutor's re-statement avoided the need for a direction, no direction had been sought by defence counsel, he being content with the formula adopted by the prosecutor in clarification.

96 The failure of defence counsel to seek a direction now presents a significant obstacle to the success of this ground of appeal. Nonetheless, the course adopted by the judge and counsel in dealing with an unwelcome and unnecessary complication in the trial did not overcome the problem created. Having received a submission which invited consciousness of guilt reasoning it was essential that the issue be addressed with the jury, in my opinion. Where the Crown relied on lies in proof of guilt then a direction in terms of Edwards[55] would generally be necessary, and so, too, that the lies be precisely identified_[56]__._ This jury received no direction at all. Although the prosecutor, when pressed by the judge in the absence of the jury, identified eleven lies in the record of interview, he did not repeat that statement to the jury, nor did the judge identify the lies relied on. The failure of defence counsel to seek an appropriate direction suggests counsel at the time did not perceive that a direction was required to eliminate a risk of a miscarriage of justice[57], but if the Court perceives that there was a real risk in that regard then the omission to seek a direction would not prevent the Court intervening[58].

97 In the absence of a direction removing the capacity of the lies to amount to proof of guilt, there must have been a real risk of the jury misunderstanding the use they could make of the lies, in my opinion. Indeed, there remained a real risk that the jury might have treated an answer to be a lie when it was simply incapable of amounting to a lie. In those circumstances, and given the critical importance of the record of interview, and the ambiguity of some of the answers contained in it, it was essential that the jury receive, at least, a direction in terms discussed in the joint judgment in Zoneff [59]

98 In my view, the problem which the prosecutor had created was not overcome by the reformulation of his address as to lies. The formula adopted by the prosecutor reflects the haste with which it originated. I do not myself understand what the re-formulated statement meant, and I doubt whether the reference to "common sense", in context, meant anything to the jury, either. In her charge, however, her Honour adopted the agreed formulation in saying that it was defence counsel's submission that the jury would have to reject the record of interview beyond reasonable doubt before they could find him guilty, but that "the Crown's position in relation to the record of interview is that you should reject it as a matter of common sense when you analyse it."

99 In the result, the jury were not given the cautionary instructions which are contained in a Zoneff direction[60]. In the absence of a clear and direct statement by the prosecutor (to be reinforced by the judge) that the Crown did not rely on lies as proof of guilt and that he withdrew entirely what he had earlier said in his address, it was of particular importance, in my view, for the judge to warn the jury that just because he lied to police that did not mean that the applicant had an absence of belief as to whether the complainant was consenting.

100 I well recognise that the judge was placed in a difficult position by virtue of the carelessness of the prosecutor in his address. I acknowledge, too, that the course taken by her, out of a range of unpalatable options, was that which was urged by both counsel. I am nonetheless persuaded that this ground of appeal has been made out.

Conclusion

101 As earlier noted, the Court made orders that the application for leave to appeal against conviction be granted, the appeal be treated as having been heard instanter and allowed, and the convictions be quashed. The court ordered a re-trial on each count. It will be for the Director of Public Prosecution to consider whether re-trials should be conducted.

102 It is unnecessary for the Court to consider the application for leave to appeal against sentence but it ought be noted that counsel appearing for the respondent conceded that the sentence imposed on count 1 was manifestly excessive. It should also be noted that the appellant has served a substantial portion of the unsuspended sentence. Those considerations will no doubt be given weight by the Director.

103 I agreed in the orders made by the Court on 13 February 2006 because I concluded that at least Grounds 1 and 2 of the conviction appeal had been made out. The reasons of Eames, J.A. clearly and fully articulate why I arrived at that conclusion.

104 The course which the trial took after the prosecutor raised the issue of lies evidencing consciousness of guilt was not satisfactory. Both defence counsel and the learned judge were placed in an invidious position. The problem which the prosecutor created was a significant one, and had to be quickly addressed by each of defence counsel and her Honour. It is not surprising, in the circumstances, that a compromise was arrived at which, viewed in retrospect, involved the use of language apt to confuse, rather than clarify, what the prosecution was contending for. In the circumstances, and notwithstanding the failure of defence counsel to seek any direction at to lies - a failure no doubt conditioned by his involvement in the so-called compromise - I think that the conclusion expressed by Eames, J.A. as to what should have been done is correct. But I prefer to express no concluded opinion about the matter.

[1] Strictly speaking, intention and sexual penetration are separate elements, but a tripartite division enables me to express the point more simply.

[2] [2005] VSCA 136 at [2] - [3].

[3] The charge book is in the process of being rewritten. The old charge book was used at this trial.

[4] The orders are summarised by Eames, J.A. at [12] below.

[5] Unreported, 25th March 1994 at 10 - 11.

[6] Unreported, Court of Appeal, 2nd April 1996 at 21 - 22.

[7] [2003] VSCA 189; (2003) 7 V.R. 423 at 440 [47] and 441 [48].

[8] Below at [76] - [79].

[9] See [77] below.

[10] The applicant was not asked by police what clothes, if any, he wore to bed. The complainant said in her evidence that she did not know what the applicant had been wearing, but she said that on other occasions when he had slept in her bed he had worn a t-shirt and boxer shorts.

[11] See paragraph [1], above, in the judgment of Callaway, J.A., herein.

[12] (2002) 187 ALR 436, at 441 [18], (2002) 76 ALJR 628, at 632, citing Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, at 466.

[13] [2005] VSCA 136, at [2]-[3].

[14] See par [1], above.

[15] [1952] HCA 3; (1952) 85 CLR 437, at 466.

[16] R v Andrakakos [2003] VSCA 170 at [11] and fn 5 therein, and the cases there cited; R v De' Zilwa, [2002] VSCA 158; [2002] 5 VR 408, at 411 [5] and fn 5 therein, and the cases there cited. A further instance is Fingleton v R [2005] HCA 34; (2005) 216 ALR 474, at 495 [77], per McHugh, J.

[17] R v Chai, at ALR 441 [18], at ALJR 632 [18].

[18] See R v Dao [2005] VSCA 196, at [24]; R v Crockett [2001] VSCA 95; (2001) 124 A Crim R 312, at 315, per Ormiston, J.A.

[19] [1996] VICSC 17; [1996] 2 VR 663, at 666-669.

[20] At 667.

[21] At 668-669.

[22] RPS v R [2000] HCA 3; (2000) 199 CLR 620, at 637 [41].

[23] RPS, at 637 [41].

[24] [2003] VSCA 170, at [11].

[25] [2002] VSCA 158; [2002] 5 VR 408.

[26] Andrakakos, at [11]. In R v Defrutos [1998] 2 VR 589, at 600-602, Callaway, J.A., similarly held that not every contention of counsel had to be dealt with in the charge, but that the main points of the defence case, in response to the prosecution case, did have to be dealt with.

[27] See R v Demiri [2006] VSCA 64, at [26] per Redlich, A.J.A., Maxwell, P. and Buchanan, J.A. agreeing.

[28] [1992] HCA 13; (1992) 173 CLR 555, at 560-561, per Mason, C.J., Deane, Dawson, Toohey, Gaudron and McHugh, JJ.

[29] At 561.

[30] I do not suggest that her Honour gave a sterile direction in this case. I am here speaking generally.

[31] [2005] HCA 34; (2005) 216 ALR 474, at 495 [77]; see, too, RPS v R., at 637 [41].

[32] [2005] VSCA 288, at [55]. Although it may be subsumed in these paragraphs in AJS, the judge's obligation to ensure that the prosecution and defence case is clearly placed before the jury would usually also require that the addresses of counsel, on both sides, be summarised: se R v Crockett, at 315 [9]; R v Dao, at [24].

[33] [2005] VSCA 69; (2005) 153 A Crim R 173.

[34] Rape is defined by s.38(2)(a) as occurring when a person intentionally sexually penetrates another without that person's consent "while being aware that the person is not consenting or might not be consenting".

[35] At [15].

[36] At [16].

[37] At 182 [18].

[38] In R v Salih [2005] VSCA 282, Harper A.J.A., dissenting as to this, held that (contrary to the view of Winneke, P. in Yusuf) s.37 was intended not to restate but to alter the common law, and to do so to the benefit of complainants, by restricting the directions that could be given in favour of an accused person. Chernov, J.A. re-affirmed the correctness of the decision in Yusuf. Nettle, J.A., without expressing doubt as to its correctness, concluded that the Court was bound by Yusuf. It is unnecessary for me to consider this question, as nothing said by Harper, A.J.A. would cast any doubt on the reasons of Winneke, P. concerning a direction under s.37(1)(c), in the terms given in this case, nor on the President's observations about the common law obligations of a judge to relate a required direction to the facts in issue.

[39] At 183 [19]. As to the evidential effect of self-serving statements in a record of interview, see R v Andrakakos, at [11] per Ormiston, J.A. and see fn 6 therein, and the cases there cited.

[40] At 184 [20].

[41] See R v Arundell [1998] VSCA 102; [1999] 2 V R 228, at 247-250, per Callaway, J.A.; R v Wright [1999] VSCA 145; [1999] 3 V R 355 at 356 [1]- [2] per Phillips, C.J. and Charles, J.A. and at 360-361 [16]-[20] per Callaway, J.A.; see too, R v Defrutos, at 600.

[42] See R v Clarke & Johnstone [1986] VicRp 64; [1986] V R 643, at 661-2; R v Anderson, at 669, R v Wright, at 356 [1]-[2], 360-361 [16]-[20].

[43] [2003] VSCA 189; (2003) 7 VR 423, at 440 [47].

[44] R v Dao, at [20]-24].

[45] R v De' Zilwa, at 411 [5]; R v Andrakakos, at [11].

[46] R v De' Zilwa, at 410--411 [4]-[6], per Ormiston, J.A.; R v Dao, at [21]; Alford v Magee , at 466; R v Crockett, at [9].

[47] In R v De' Zilwa, at 410 [4], Ormiston J.A. cautioned that the judge should not assume that the jury would have the same power of recall of evidence as might a trained and experienced lawyer.

[48] R v Salih, at [12], per Nettle, J.A.

[49] See R v De' Zilwa, at 411 [5] per Ormiston, J.A., at 416-7 [26], per Charles, J.A.; R v Anderson, at 666-7.

[50] In Andrakakos, Ormiston, J.A., at [10-[18], acknowledged that there was no single approach that may be adopted. He approved the approach of Nettle, J., as trial judge, who confined his summary of evidence and addresses to the point in the Charge when he merged those matters while dealing separately with each of the relevant issues in the case, and did not provide a later separate summary of the evidence and submissions.

[51] See par.[36].

[52] As to the duty of counsel to ensure that the judge does not fall into error, see R v Clarke & Johnstone, at 661. The duty falls on both prosecutor and defence counsel: see R v Wright, at 356 [2] per Phillips, C.J. and Charles, J.A. and at 360-361, [16]-[20], per Callaway, J.A..

[53] R v Andrakakos, at [11]-12]; R v Crockett, at 314 [8]; R v Yusuf, at [16]; R v Defrutos, at 597-8; R v Anderson, at 666-7; Alford v McGhee, at 466.

[54] Counsel before us also complained that the use made of the record of interview was selective and unfair, and the prosecutor had on occasion linked unrelated answers that were in quite distinct portions of the interview and referred to different occasions during the events. The jury did not have a transcript of the record of interview. No objection was taken at the time to the fairness of the prosecutor's approach and no ground of appeal now raises this complaint. The apparently dislocated approach adopted when recounting the answers in the record of interview is, however, a relevant background factor, in my view, to the complaint under this ground.

[55] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, at 210-211, per Deane, Dawson and Gaudron, JJ.

[56] Edwards, at 210-211.

[57] R v Defrutos, at 600, per Callaway, J.A.

[58] See R v Ali [2002] VSCA 194; [2002] 135 A Crim R 426 at 434 [44].

[59] Zoneff v The Queen (2000) 200 CLR 234 at 245 [23], per Gleeson, C.J., Gaudron, Gummow and Callinan, JJ.

[60] The more elaborate Edwards direction would not have been necessary in these circumstances.

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