Rana v The Queen [2014] VSCA 198

2 But in my judgment, grant of leave would not avail the applicant. The President certified, pursuant to s 11(1A) of the Supreme Court Act 1986, that the Court as presently constituted may exercise all the jurisdiction and powers of the Court of Appeal. The parties were informed accordingly. I would dismiss the appeal because, assuming that ground 1 was made out, the applicant failed to establish that it occasioned a substantial miscarriage of justice.

4 By s 22 of the Jury Directions Act 2013, 'incriminating conduct' (which includes the telling of a lie by the accused) is defined to mean -

Conduct that amounts to an implied admission by the accused -

(a) of having committed an offence charged or an element of an offence charged.

5 One element of the crime of rape which the Crown must prove is that the necessary intentional penetration without consent was in circumstances where the offender is aware that 'the person is not consenting or might not be consenting'. Consent means free agreement. By s 36, of the Crimes Act 1958, one circumstance in which a person does not freely agree to act is where -

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

6 By s 37AA, if an accused asserts a belief that the complainant was consenting, the judge must direct the jury that in considering whether the prosecution has proved to the criminal standard that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider, inter alia, whether the belief was reasonable in all the circumstances, which include whether the accused was aware that the circumstance specified in s 36(d) existed in relation to the complainant.

7 The questions and answers in the applicant's record of interview upon which the Crown relied as incriminating conduct, set out at [37] in the reasons of Beach JA, directly related to proof by the Crown of the element of the offence of rape which I identified at [5] above - that is, the so-called 'fourth element'.

[a] bald denial of guilt ... which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps.[1]

9 In R v Lam (No 18),[2] Redlich J (as his Honour then was) drew a distinction as follows -

1. Where there is evidence upon which a jury may find that an assertion of fact by an accused which relates to a material issue is false, the alleged lie may warrant separate consideration as a lie evidencing consciousness of guilt. This is to be contrasted with a lie which consists of a broad denial of guilt which may only be demonstrated to be false by proof of the accused's guilt of the crime charged. As was stated in R v Gionfriddo, and affirmed in The Queen v Smith,[3] such a lie cannot assist in proof of guilt 'for it to do so would be for the prosecution to lift itself by its own boot straps.'[4]
2. The extensive submissions advanced on behalf of the accused did not, I regret, distinguish between a lie which could be demonstrated to be false by other evidence, from a lie which required the jury to first determine whether the accused was guilty of the offence charged. In R v Jan Ha Le Trinh,[5] Winneke P referred to the 'boot straps argument' as arising where the accused has made a simple denial of the offence charged so that proof that it was a lie could only be established by proof by the prosecution of the crime charged.[6] It is only in these latter circumstances that consciousness of guilt becomes a circular argument.[7]

10 The distinction which his Honour drew was cited with approval by Neave JA in The Queen v Sirillas.[8] There, her Honour used the phrase 'general denial of guilt' to express what Redlich J described as a 'broad denial of guilt' in Lam, and what Crockett and O'Bryan JJ had described as a 'bald denial of guilt' in Gionfriddo.[9]

11 Even in a case in which an answer is a bald denial of guilt, it will not necessarily follow that the answer cannot be relied upon as incriminating conduct. One aspect of the appeal in R v Hartwick[10] raised the question of a denial by one appellant of his involvement in a murder. The trial judge had permitted the denial to go to the jury as evidence of a lie told in consciousness of guilt. This Court said:

We accept that a denial of guilt will seldom if ever be sufficient to evidence consciousness of guilt; nor, for the same reason, may protestations of not knowing who may be responsible. Any other conclusion would be an invitation to the jury to engage in the very sort of circular reasoning which Edwards warns against. But this went beyond that. This was not just a denial of any involvement but a positive false allegation that someone else had been responsible. In our opinion there is nothing in principle or in this case in practice which precludes the possibility of a false attribution of blame constituting evidence of consciousness of guilt.[11]

12 The consideration by this Court in Hartwick of other lies relied upon by the prosecution as incriminating conduct also illustrates the fine line that may in practice need to be drawn, in some cases, so as to distinguish between the two situations identified by Redlich J in Lam.

13 In the present case, as I perceive it, the applicant's answers to questions 67, 89, and 90 arguably went no further than denial of an element of the offence. Beyond that, the applicant was pressed in the record of interview to elaborate upon those answers, and this in time led to his answers to questions 178 to 180. They were certainly an expansion upon the applicant's earlier answers. They were a product of the applicant being pressed to go further than he had done at the outset. But no question of unfairness arose. I think that those answers, particularly the answer to question 180, probably did go so far beyond bald denial as to make them admissible as incriminating conduct. Nonetheless, I consider that the contrary is reasonably arguable.

14 That takes me to the fate of an appeal if leave was granted. Let it be assumed that ground 1 was made out.[12] In Baini v The Queen,[13] this Court interpreted and applied the decision of the High Court in Baini v The Queen.[14] That was a case in which inadmissible evidence was adduced on the hearing of a large number of counts brought against the applicant. Having considered the High Court's judgment, the Court said this:

We proceed, therefore, on the basis that it is not open to be satisfied on the record of the trial that the admission of the inadmissible ... evidence did not amount to a 'substantial miscarriage of justice' unless we are able to conclude from our review of the record that, if the inadmissible ... evidence were excluded, the jury acting reasonably and applying the correct onus and standard of proof could not properly have been left with a reasonable doubt as to the applicant's guilt on those of the ... counts on which the jury returned a verdict of guilty.[15]

15 Applying that approach to the present case, in my opinion the Court is able to conclude from its review of the record that, if the particular questions and answers had not been admitted as evidence of incriminating conduct, the jury acting reasonably and applying the correct onus and standard of proof could not properly have been left with a reasonable doubt as to the applicant's guilt on any of the three charges.

16 As to the acts of penetration themselves, the act the subject of the third charge was clearly depicted in the time-lapse photography comprising the CCTV footage taken within the taxi. The applicant did not deny the act constituting that offence.

17 The act the subject of charge 2 was almost certainly depicted in a photograph taken in the taxi. If there was a skerrick of doubt about that matter, it was not a matter about which a jury could have entertained a reasonable doubt.

18 As for charge 1, a multiplicity of photographs taken within the taxi were by themselves highly suggestive of penile penetration. But that was not the only evidence of penetration. Semen was found in a swab taken from the complainant's labia majora. The applicant could not be excluded as being the person whose DNA was found in that semen. The totality of that evidence, together with such evidence as the complainant was able to give about the matter, could not have left the jury with reasonable doubt that penile penetration had taken place.

19 As to consent, the complainant gave evidence that she did not consent to any sexual activity, and that she told the applicant so. The applicant asserted in his record of interview that the complainant had consented to their sexual contact. Somewhat strangely in those circumstances, his counsel pursued at trial, in cross-examination of the complainant, an assertion that there had been neither digital nor penile penetration. Penetration was put in issue, despite the alleged consent, only in respect of the counts where the photographs taken inside the taxi either did not disclose penetration with utter certainty; or, in the case of charge 1, did not directly show penetration.

20 Apart from the complainant's evidence, and the way in which the applicant put his case on the issue of consent (which is not to imply that he carried any onus of proof), there was, importantly, the evidence of many witnesses, together with the evidence constituted by CCTV footage at several locations, and photographs. That evidence graphically revealed the complainant to have been in a state where she was incapable of giving free agreement to sexual penetration. In my opinion, the jury would have been perverse to have concluded otherwise.

21 Evidence as to the complainant's alcohol and drug-affected state was

pertinent both to consent and to the question whether the Crown had proved to the criminal standard that the applicant was aware that the complainant was not consenting or might not be consenting to the penetration. Upon the latter issue, the Crown case was, in my opinion, overwhelming. The complainant, as described in the evidence of witnesses, and as evidenced by CCTV footage at several locations and photographs taken within the taxi, was shown to be gravely disabled. This was no matter of guesswork. It was utterly obvious. The only evidence to the contrary was constituted by the applicant's answers in his record of interview. Putting to one side the question whether those answers could stand as incriminating conduct, they contrasted wildly with the complainant's observed and observable state, and lacked any cogency. There is no prospect that the jury, properly instructed, could not have been satisfied to the criminal standard that the fourth element of the crime of rape had in the case of each charge been established.

22 On 27 August 2013, the applicant was convicted by a jury in the County Court of three charges of rape arising out of events which occurred in the early hours of 4 November 2012. On 6 December 2013, the applicant was sentenced to a total effective sentence of 6 years' imprisonment with a non-parole period of 4 years.

23 Following his sentencing, the applicant sought leave to appeal his convictions on the following grounds:

1. The learned trial judge erred in law in allowing prosecution counsel to rely upon certain answers given by the applicant in his police interview as incriminating conduct, thereby causing a substantial miscarriage of justice.
2. The learned trial judge erred by her directions to the jury, by failing to direct the jury that before they could convict the applicant, they would have to be unanimous as to whether they were satisfied beyond reasonable doubt either that the complainant did not consent, or that the complainant was so affected by alcohol or another drug as to be incapable of freely agreeing, thereby causing a substantial miscarriage

1. The learned trial judge erred by her directions to the jury as to the applicant's awareness pursuant to s 37AA of the Crimes Act 1958, by substituting 'drunk or affected by medication' for the full circumstance specified in s 36(d), thereby causing a substantial miscarriage of justice.

24 On 18 June 2014, Priest JA refused the applicant's application for leave to appeal. In concluding that proposed ground 1 was bound to fail, Priest JA raised the possibility that the trial judge's directions might be deficient because nowhere in her Honour's charge was there a direction to the jury that, before they could use the relevant answers given by the applicant in his police interview as incriminating conduct, they needed to be satisfied that the answers were deliberately untruthful.

25 The applicant has renewed his application for leave to appeal against conviction pursuant to s 315(2) of the Criminal Procedure Act 2009. In the renewal of his application, the applicant relies on the three proposed grounds relied upon before Priest JA. In addition, at the hearing of the renewal of the application for leave, leave was granted to rely on a proposed fourth ground as follows:

1. The learned trial judge erred in failing to direct the jury that, before it could use the answers given by the applicant in his police interview as incriminating conduct, it had to be satisfied beyond reasonable doubt that the answers were deliberately untruthful.

26 The applicant was born in India on 3 February 1983, and came to Australia in 2008. While undertaking studies he began working as a taxi driver to support himself. He was aged 29 years at the time of the alleged offending.

27 The complainant was aged 17 years at the time of the alleged offending. She had attended a party at a friend's house where she had been drinking heavily. After the party, she found herself at the Mitcham Railway Station, only to discover that she had missed the last train. She had no money and no way of getting home. While at the station, she met two people who asked for a cigarette. In exchange for cigarettes, the complainant was given two tablets that she understood to be Valium. She took the pills with vodka from a bottle from which she had been drinking during the night.

28 Upon taking the tablets, and while sitting at the train station, the complainant became very depressed and decided to end her life by consuming two months' supply of her anti-depressant medication, which she again swallowed with vodka.

29 After ingesting the medication, the complainant made her way to Whitehorse Road, where she was seen by a group of four people who were waiting for a taxi. She was seen to fall twice, once as she crossed the road, and once on the footpath near an ATM. The four people went to her aid. They tried to establish who she was and how she was going to get home. Once they got her to her feet, the group hailed a taxi which was then being driven by the applicant.

30 Through the window of his taxi, the applicant spoke to the people who were trying to discover the complainant's address. Eventually, the complainant's address was found on a card in her bag. One of the group gave the applicant $50 for the fare and the complainant was assisted into the back of the taxi. Another member of the group dialled 000 for assistance, but terminated the call once he observed the complainant being put in the back of the taxi. CCTV footage from the taxi showed the complainant lying slumped on the back seat. The person who had helped her into the taxi had been unable to put her seatbelt on.

31 A short time into the journey, the complainant moved into the front seat of the taxi. The CCTV footage from the taxi shows the complainant to be asleep or passed out from time to time. She is also shown to be in very slumped positions from time to time. Her appearance accords with a description given of her by one of the four people who put her in the taxi as 'floppy'.

32 After the complainant moved into the front seat of the taxi, and while the complainant appears to be asleep or passed out, the applicant then began to kiss her and to remove her clothing. The applicant and the complainant then moved into the back seat. The complainant gave evidence that before moving into the back seat, the applicant offered her $50 for oral sex, which she declined. She said that her next recollection was 'being in the back seat and he was making me suck his penis'.

33 The Crown case was that the applicant penetrated the complainant's vagina with his finger (charge 1), penetrated her vagina with his penis (charge 2), and then forced her to suck his penis (charge 3). The applicant then returned to the driver's seat and the complainant began to dress herself. The sexual activity between the complainant and the applicant, and in particular the oral penetration of the complainant by the applicant, was captured on CCTV footage from the taxi.

34 After stopping at a service station to buy water, the applicant drove the complainant home. CCTV footage last shows the complainant exiting the taxi from the back seat on the driver's side. The complainant's mother let her into the house. When the complainant awoke next morning, she rang an 'on call' nurse asking for advice as to whether she should call an ambulance. She told the nurse, in response to a question, that she had been sexually assaulted. Soon afterwards, while her mother drove her to hospital, the complainant told her mother that she had been assaulted. Later that day, the complainant participated in a VARE interview, and the applicant gave a record of interview to police.

35 At trial, the applicant's case was that there was no penetration as alleged in charges 1 and 2, and that the applicant consented to the oral penetration involved in charge 3.

36 On the first day of the trial, the prosecutor sought leave under s 7 of the Jury Directions Act 2013 (Vic) for an extension of time within which to serve a notice of evidence of conduct that the prosecution proposed to rely on as evidence of

incriminating conduct pursuant to s 23 of the Jury Directions Act.[16] Leave was granted.

37 The prosecution contended that the applicant told lies in answer to questions 67, 89, 90, 178, 179 and 180 of his record of interview. These lies were relied upon by the prosecution at trial as constituting 'incriminating conduct' within the meaning of Part 6 of the Jury Directions Act. The relevant questions and answers in the record of interview were as follows:

67 Okay. How was she acting?

She was acting very much normal.

...

She was speaking very - very naturally and casually. She - she didn't seem drunk at all.

...

1. Okay. I put it to you that even if she, even if she was to have said yes, she was in no state to be able to consent. I put it to you that she was very drunk, and very drug-affected.

As - as - as well as, I remember since I picked her up until I dropped her, she was all in her senses.

Yeah. In fact, when I was picking her up the people who hail at me, they stopped, and because she had no money - she was just sitting on the - they said that she saw - they saw her sitting over there and all. So they didn't want a lonely girl to be the - over there, so they wanted her to go home. So they said that they'll pay for the - or for a cab for, because she doesn't have the money on her. So she was very well - I mean, almost close to f-, five to 10 minutes I suppose, she was telling them that, 'No, it's not required. I don't want to take any favour from you,' and she was speaking to them very normally and she was saying, 'I don't need any favours from you.' She was all in her senses, and she doesn't - and she didn't want to take any favour from th-, from them.

38 The applicant contends that the trial judge was wrong to permit the prosecution to lead this evidence as conduct capable of being held to be incriminating conduct within the meaning of Part 6 of the Jury Directions Act. The applicant submits that the answers given to the relevant questions in the record of interview were the applicant's response to the prosecution case as to his knowledge of the complainant's level of intoxication. The applicant's answers, it was submitted, should properly have been considered to be a denial of the Crown case. Any conclusion that the applicant's denials of knowledge of the complainant's intoxication incriminated him as to the offences charged was said to involve circular reasoning.

39 The applicant's submissions are not entirely without force. It is in my view at least arguable that some of the impugned answers in the record of interview are no more than a denial of the Crown Case. Accordingly, I would grant leave to appeal in respect of the applicant's proposed ground 1.

40 In his answers to the relevant questions in the record of interview, the applicant denied that the complainant was drunk or drug-affected. This of itself would not be enough to amount to incriminating conduct. However, the applicant went further and asserted that the complainant was 'all in her senses', speaking 'very naturally and casually' and speaking 'very normally'. This was more than a mere denial of the proposition that the applicant was 'so affected by alcohol or another drug as to be incapable of freely agreeing'.[17] The applicant's answers to the relevant questions in the record of interview were thus more than a mere denial of the Crown case.[18] There is no circularity of reasoning in finding that the applicant's denials of any relevant incapacity on the part of the complainant, if knowingly false, constituted incriminating conduct. The applicant's answers were well capable of being viewed as incriminating conduct within the meaning of s 23 of the Jury Directions Act.

41 It follows that while I would grant leave with respect to ground 1, ultimately I would not uphold that ground on the applicant's appeal.

42 Proposed ground 2 makes complaint about the judge's directions concerning the third element of the crime of rape, namely the requirement for the prosecution to prove that the complainant did not consent to sexual penetration. 'Consent' is defined in s 36 of the Crimes Act 1958 to mean 'free agreement'. Section 36 goes on to provide:

... Circumstances in which a person does not freely agree to an act include the following -

...

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

43 In charging the jury on the element of consent, the judge said:

In determining whether she did not freely agree to be sexually penetrated you must consider all of the relevant evidence, including what she is alleged to have said and done, or not said and done, at the time of the alleged penetration, as well as the evidence she gave in court about her state of mind at the time.

In this case the prosecution points to [the complainant's] evidence that she told the accused that she did not want oral sex and not to insert his penis into her vagina. The prosecution also says that she was not in a fit state to agree because she was so affected by alcohol and drugs. The defence case is that she was in a fit state to agree. She was not so affected by alcohol and drugs that she did not know what she was doing and that she consented to the sexual activity.

It is important that you remember that it is not for the accused to prove he knew that the complainant consented. For this third element to be satisfied the prosecution must prove to you, beyond reasonable doubt, that the complainant did not consent.

44 This direction was given in conformity with the Victorian Criminal Charge Book. With respect, there was nothing wrong with the judge's direction relating to the element of consent. The judge correctly told the jury that consent meant free agreement, and then correctly outlined for the jury the circumstances in which it might be concluded that the complainant did not freely agree or consent to sexual penetration. While it was necessary for the jury to be unanimously satisfied beyond reasonable doubt that the complainant did not freely agree to sexual penetration, it was not necessary for the jury to be unanimous in their reasons or reasoning processes for coming to this conclusion.[19]

45 In proposed ground 3, complaint is made that during the course of the judge's charge about the accused's awareness that the complainant was not, or might not, be consenting to sexual penetration, the judge substituted the expression 'drunk or affected by medication' for the expression actually used in s 36(d) of the Crimes Act. Section 37AA provides:

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider -

(a) any evidence of that belief; and

(b) whether that belief was reasonable in all the relevant circumstances having regard to -

(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and

(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

(iii) any other relevant matters.[20]

46 In the course of her charge, the judge noted that the defence argued that at the time of the sexual penetration, the applicant believed that the complainant was consenting to the sexual act. Section 37AA was engaged.

47 On the first occasion the judge dealt with s 36(d) in her charge, the judge was dealing with the third element of the crime of rape (consent to the sexual penetration). The judge said:

The law identifies a number of circumstances where the complainant is deemed or considered not to freely agree or consent to sexual penetration. These circumstances include where the person is so affected by alcohol, or another drug, as to be incapable of freely agreeing.

This was a correct statement in relation to s 36(d).

48 The judge then went on with further directions about consent, before saying:

In this case the prosecution points to [the complainant's] evidence that she told the accused that she did not want oral sex and not to insert his penis into her vagina. The prosecution also says that she was not in a fit state to agree because she was so affected by alcohol and drugs. The defence case is that she was in a fit state to agree. She was not so affected by alcohol and drugs that she did not know what she was doing and that she consented to the sexual activity.

49 Complaint is made about this passage, and in particular, the judge's use of the word 'fit'. There is nothing in this complaint having regard to the actual text of s 36(d). Contrary to the submissions of the applicant, this passage in the charge did not carry a risk of conflating an irrelevant issue with a relevant issue, or of enabling a conviction upon proof of something less than was required by the relevant provisions of the Crimes Act.

50 Next, the applicant impugned the following part of the charge that concerned the fourth element of the crime of rape (awareness that the complainant was not consenting or might not be consenting):

There are three factors for you to look at when judging whether a belief in consent was reasonable. One: if you find that [the complainant] was intoxicated and/or affected by medication at the time, you must consider whether the accused was aware that she was in that state.

However, even if you find that [the applicant] was aware that [the complainant] was drunk or affected by the medication she had taken, that does not necessarily prove that [the applicant] was aware that she was not or might not be consenting; it just affects whether a belief in consent was reasonable.

51 No complaint was made about this part of the charge at trial. However, later in the charge, trial counsel for the applicant[21] asked for a redirection about how a belief may be regarded as unreasonable, but still be a genuinely held belief. In the course of giving an additional direction in response to this request, the judge again referred to the circumstances specified in s 36 as including 'where the person is so affected by alcohol, or another drug, as to be incapable of freely agreeing'. While no complaint is made about this passage, there was again, a short time later, reference to a belief the applicant might have had that the complainant 'was not drunk'. As with the former occasion on which the judge paraphrased the wording of s 36(d), no complaint was made about this at trial.

52 In giving an abbreviated or paraphrased direction about the circumstance specified in s 36(d), it must be said that it would, at least, have been preferable for the judge to repeat the statutory language in s 36(d), rather than using what might be said to have been a short-hand version of the language. However, as I have said, no complaint was made about this at trial. That said, having examined the charge as a whole, and noting that her Honour repeated the statutory language twice, in my view the judge had made clear that circumstances in which a person does not freely agree to sexual penetration 'include where the person is so affected by alcohol, or another drug, as to be incapable of freely agreeing'. This, as I have said, accords with the language in s 36(d). In the circumstances, I do not see any possibility that the jury was misled by the judge's directions in respect of which complaint is made. Further, while the absence of objection at trial may not be decisive, as has often been said, it bears upon the likely substance of the proposed ground now raised. Proposed ground 3 is without substance.

53 In proposed ground 4, two complaints are made: first, that the judge did not tell the jury that before they could use the applicant's answers in the record of interview as implied admissions of guilt they needed to be satisfied that the answers were deliberately untruthful; and secondly, that the judge did not give a direction that the jury would have to be satisfied beyond reasonable doubt that such answers were deliberately untruthful.

54 During the course of argument, counsel for the applicant conceded that it was not necessary for the judge to direct the jury that they had to be satisfied beyond reasonable doubt as to the deliberate untruthfulness of the applicant's answers. A jury does not need to be satisfied beyond reasonable doubt of the existence of each and every fact relied upon to prove an element of an offence, as long as they are satisfied that the accused's guilt has been proved beyond reasonable doubt. However, a collateral fact (which is not itself an element of the crime) will need to be proved beyond reasonable doubt if, without it, the prosecution case would fail. The question of whether or not the applicant's answers in the record of interview were deliberate lies was not one of those facts, in the circumstances of this case, which required proof beyond reasonable doubt. The concession made by counsel for the applicant in this regard was correctly made.

55 Undoubtedly, the jury had to be satisfied that the answers relied upon by the Crown as lies, were lies. That said, the judge did not give an express direction in those terms. Instead, the judge referred to the prosecution argument that the relevant answers given by the applicant show that the applicant 'was lying when he said [the complainant] was talking and behaving normally and that she was in her senses'. The judge went on:

You may treat this evidence as evidence that Mr Rana believed, when he was interviewed by the police, that he had committed the offence of rape, that he knew [the complainant] was not consenting. You may only use the evidence in this way if you conclude that he did indeed give those answers in the interview, because that is a matter of fact for you to decide. Also you can only use the evidence in that way if the only reasonable explanation for Mr Rana to have told those lies, is that he knew he had committed the offence of rape.

56 While the judge did not say, in terms, that the jury had to be satisfied that the answers given in the record of interview were deliberate untruths, the judge's charge went on:

Finally, even if you think that the accused believed he had committed rape, and told lies, you must still decide on the basis of the evidence as a whole whether the prosecution has proved the guilt of the accused beyond reasonable doubt. Of course there are all sorts of reasons why a person might tell lies, which make him look guilty. He may have told lies even though he is not guilty of rape. Even if you think he did tell lies, that does not necessarily mean that he is guilty.

57 Implicit in this last passage was a direction that the jury had to be satisfied that the answers relied upon by the Crown were lies. It is notable that, despite other exceptions being taken to the charge, no exception was taken to her Honour's failure to expressly state that the jury had to be satisfied that the answers relied upon by the prosecution were in fact lies.

58 In the prosecutor's final address, the jury was invited to make a finding that the applicant's answers to the relevant questions in the record of interview were deliberate lies. The prosecutor addressed the jury on the basis that she had to establish that the answers were deliberately untrue. Following the prosecutor's address, trial counsel for the applicant addressed the jury telling them that they had to be satisfied that the answers relied upon by the Crown were deliberate lies. No exception was taken to this by the prosecutor or the judge.

59 Undoubtedly it would have been better for the judge to explicitly direct the jury that, before they could use an answer in the record of interview as incriminating conduct, they had to be satisfied that the answer was deliberately untrue. However, it seems plain to me that this was the basis upon which the case was conducted. In my view the jury could not have been in any doubt that, before they could regard the applicant's answers as incriminating conduct, they had to be satisfied that the relevant answer was deliberately untrue. The fact that there was no relevant exception taken by the applicant's trial counsel to the judge's failure to state explicitly that the jury had to be satisfied that a relevant answer was deliberately untrue, while not decisive, again bears upon the likely substance of the proposed ground now raised.

60 In its response to the applicant's revised written case, the Crown contended that if any of the applicant's complaints were made out then there was, in any event, no substantial miscarriage of justice. Having regard to the conclusions I have reached in relation to the applicant's proposed grounds of appeal, it is not necessary for me to determine this issue. However, having viewed the CCTV footage and read the evidence given at trial (and in particular the evidence of the witnesses who assisted the complainant on the night in question and helped her into the applicant's taxi), I must say there is real force in the Crown's contention that there was, in any event, no substantial miscarriage of justice. Had I been required to determine the matter, I would have concluded that convictions in this case were inevitable, in the sense that a verdict of acquittal would not have been open on the evidence. Plainly, the applicant committed the acts of sexual penetration alleged in the three charges, the complainant did not freely agree to any of these acts, and the applicant knew that the complainant was so affected by alcohol or some other drug as to be incapable as freely agreeing. All of these matters were, in my view, proved beyond reasonable doubt.

61 The application for leave to appeal in respect of grounds 2, 3 and 4 should be refused. I would grant leave to appeal with respect to ground 1, but dismiss the appeal.

[1] (1989) 50 A Crim R 327 ('Gionfriddo'), 332-333 (Crockett and O'Brien JJ).

[2] [2005] VSC 292 ('Lam').

[3] [2002] VSCA 219 [109].

[5] [1998] VSCA 137.

[7] The Queen v Smith [2002] VSCA 219 per Phillips JA at para [124]; R v Laz, at 446; R v Gionfriddo & Faure at 332-3; R v Zheng (1995) 83 A Crim R 572 at 576-7.

[8] [2006] VSCA 234 [19] (Vincent JA and King AJA agreeing).

[9] Another formulation, on this occasion by Hansen JA in Le v The Queen [2011] VSCA 42 [53], is 'the lies were ... direct denials of committing the crime'.

[10] [2005] VSCA 264; (2005) 14 VR 125 ('Hartwick').

[12] Although the opinion of Beach JA to the contrary is highly persuasive.

[13] [2013] VSCA 157.

[14] [2012] HCA 59; (2012) 246 CLR 469.

[15] Baini v The Queen [2013] VSCA 157 [10] (emphasis in original).

[16] The expressions 'conduct' and 'incriminating conduct' are defined in s 22 of the Jury Directions Act as follows:

conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused -

(a) of having committed an offence charged or an element of an offence charged; or

[17] Cf Crimes Act 1958 s 36(d).

[18] Cf Zheng v The Queen (1995) 83 A Crim R 572.

[19] See generally R v Clarke & Johnstone [1986] VicRp 64; [1986] VR 643, 661; R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299, 311 [45] and 316 [57]; and El-Waly v The Queen [2012] VSCA 184 [50]-[64].

[21] Not counsel who appeared in this Court.