1 The applicant was found guilty by a County Court jury of three counts of indecent assault and seven counts of rape. After hearing a plea in mitigation of sentence, the applicant was sentenced to a total effective sentence of six years' imprisonment with a non-parole period of four years. He now appeals against his conviction.

Circumstances of the offending and the offender

2 The alleged offences all occurred on the morning of 10 December 2006. At that time, the applicant was 33 years old and the complainant was 24.

3 The applicant and the complainant had met at a nightclub in the preceding September and had been out together on subsequent occasions. They had had consensual sexual intercourse three times before 10 December 2006. The previous occasion on which this had occurred was on the morning of 9 December (the day before the alleged offences). Three of the counts of which the applicant was convicted involved digital or penile penetration of the complainant's anus. The complainant's evidence was that the applicant had previously tried to put his finger and his penis in her anus, but she had moved him away and told him not to do so.

4 On the evening of 9 December 2006, the applicant and complainant met up after having separately gone out with friends.

5 The complainant's evidence was that she had drunk three cans of a vodka energy drink, a Midori and a 'Cowboy shot', which contained 'butternut schnapps and a little bit of Baileys on top'. She then said she 'went downhill pretty quick. I felt very sick and just wanted to lie down and go to sleep.' She said she had told the applicant how she was feeling and they went to his home in a taxi. They returned to the applicant's home at around 4.00 am. She felt very sick and went into the bedroom to lie down. However, she said that she did not feel drunk but was 'a bit tipsy, a bit happy' and not completely drunk.[1]

6 The complainant's evidence was that shortly afterwards, the applicant lay beside her and began to touch her. She said she had pushed his hand away and indicated that she was not interested in sex. Approximately ten minutes later, the applicant pulled up the complainant's dress and removed her underwear. She said she did not say anything to him because, at that stage, she thought he was trying to make her more comfortable.

7 It was not disputed that the following acts then occurred:

• The applicant rubbed the complainant's vaginal area (Count 1, indecent assault);

• The applicant felt the complainant's breasts (Count 2, indecent assault);

• The applicant inserted his fingers into the complainant's vagina (Count 3, rape);

• The applicant licked and kissed the complainant's breasts (Count 6, indecent assault);

• The applicant inserted his penis into the complainant's vagina for a couple of minutes (Count 4, rape);

• The applicant inserted his fingers into the complainant's vagina (Count 5, rape);

• The applicant inserted a finger into the complainant's anus (Count 7, rape);

• The applicant simultaneously inserted one finger into the complainant's vagina and one finger into her anus (Counts 8 and 9, both of rape); and

• The applicant introduced his penis into the complainant's anus (Count 10, rape).

8 The complainant's evidence was that initially she did not do anything to stop the applicant touching her and thought that he would get bored because she did not respond. When the sexual acts continued, she had pretended to be asleep. She did not tell him to stop because she was fearful that he would hurt or threaten her because he had previously made jokes in front of his friends about doing so.

9 During some of the sexual activity, the applicant took photographs with his mobile telephone camera of the sexual acts he was performing on the complainant. The complainant's evidence was that she did not say anything about this because she was 'in shock and pretty much scared stiff'.

10 She said that after the applicant had gone to sleep she went outside and sent a text to her sisterinlaw asking to be picked up. She took the applicant's mobile phone when she left and she and her sisterinlaw went straight to the police station and reported that she had been raped.

11 The complainant identified a number of photographs of the applicant performing sexual acts on her, which were tendered in evidence. The applicant did not deny taking the photographs.

12 In cross-examination, it was put to the complainant that she had previously been a passive participant in sexual activity and there was little difference in her response on the occasion of the alleged sexual assaults. She said she had not done anything to indicate she was consenting but had pretended to be asleep. In the past, she had been awake when they were engaging in sexual activity. She denied that she had accused the applicant of rape because she was embarrassed about the possibility that someone might see the photographs he had taken.

13 The complainant's sisterinlaw, Ms Dixon, gave evidence that she had received a text from the complainant at about 6 am asking to be collected from the applicant's house because the applicant had raped the complainant. When the complainant was picked up, she was very upset and had said that the applicant had raped her while she was pretending to be asleep. Ms Dixon said the complainant did not appear to be drunk. Similar evidence was given by Senior Constable Bourke, who saw the complainant when she went to the police station with her sisterinlaw. He said that she was upset and did not appear to be intoxicated.

14 It is unnecessary to refer to the evidence of other Crown witnesses.

15 The applicant did not give evidence. In his record of interview on 10 December 2006, he told the police that he and the complainant were in a relationship and denied having raped her. He said that she was sexually conservative, had usually been fairly passive during sexual activity, and that he did not consider she had behaved differently on the occasion when the alleged offences occurred. He said that both he and the complainant had been drunk when the alleged sexual offences occurred and he had thought she was aware of what he was doing. Further details of the record of interview are set out below.

16 The defence case was that the complainant had consented to the sexual activity or that the applicant had believed that she had consented.

A substantial miscarriage of justice resulted from the failure of the Applicant's [defence] counsel to adduce evidence of his good character upon the trial.[2]

18 At the trial, Detective Senior Constable Dalton ('Dalton') was called as a prosecution witness, because the main police informant was ill. Dalton had been present during the interview of the applicant. Counsel for the applicant asked Dalton whether he was aware that the applicant had no prior offences. He responded that he could not comment on that and did not know. The applicant's counsel did not take the matter any further.

19 In discussion between the judge and counsel before the jury was charged, the following exchange occurred:

HIS HONOUR: Yes. Just your last question...as to whether there are any prior convictions, which obviously you're wanting to put before the jury good character.

DEFENCE COUNSEL: Indeed, Your Honour, yes.

HIS HONOUR: But the witness wasn't able to say anything about that.

DEFENCE COUNSEL: No, that's unfortunate.

HIS HONOUR: That's the normal sort of thing, but I don't know whether some concession could be made by the Crown on that count. It's probably

PROSECUTOR: Well, I don't know. I don't have any information, Your Honour.

HIS HONOUR: You might like to give some - - -

DEFENCE COUNSEL: And I haven't - I've obviously got information from the doctor, but I haven't anything through the official channels, Your Honour. And there's no further presentment that I'm aware of.

HIS HONOUR: Well, it's the normal thing to do, to ask the informant that, and you - - -

DEFENCE COUNSEL: Yes, well, it's normal to ask the informant.

HIS HONOUR: And go to the jury on good character on that basis, so - - -

DEFENCE COUNSEL: Yes, Your Honour.

HIS HONOUR: But there's no evidence before the jury on that at the moment, is there?

DEFENCE COUNSEL: No, there isn't.

HIS HONOUR: No. All right. Anyway, perhaps that's a matter for you to sort out.

20 Later in the discussion, the prosecutor told the judge that there had been no request to the Crown relating to any good character issue and that he had been unaware that this would be raised until Dalton was asked whether the applicant had prior offences. It is not clear whether defence counsel followed up the question of whether the applicant had prior convictions with the Crown and apparently that information was not volunteered.

21 The trial continued with the matter of prior convictions not clarified and no character evidence being called. In discussion with the trial judge prior to the jury charge, defence counsel said that Dalton's answer to his question had been equivocal and that whether the question 'puts your Honour in a position where you must direct them regarding character evidence, I don't believe so.' His Honour then pointed out that there was no evidence of good character and on that basis, he did not need to give a direction. Defence counsel appears to have agreed with that course of action. As a result, no good character direction was given.

22 In an affidavit dated 16 September 2011, the applicant deposed that he met with his counsel on two occasions before the trial. At the second conference, he was advised that he should not give evidence but there was no discussion of the possibility of calling character witnesses.

23 He deposed that during a morning adjournment on the third day of the trial, his fiancée asked counsel whether the applicant needed character witnesses. He said that:

My Counsel was dismissive; and said my witnesses would be embarrassed by the photographs and advised me that this was something we could do at the conclusion of the trial if I was found guilty and a plea was required. Our conversation was brief and he did not make any enquiries with me regarding my personal and professional background or whom I could call to give character evidence on my behalf.

It was only after the jury went out to consider its verdict that my Counsel asked me to provide him with a personal history.[3]

24 At the hearing of the appeal, the applicant was given leave to file an affidavit from his former counsel who deposed that:

'Save that I do not believe I was "dismissive", I confirm the contents of [Dr Sharma's] affidavit to be true.'[4]

25 At the plea hearing, defence counsel called extensive evidence of the applicant's good character. At the time of offending, the applicant was a medical practitioner in general practice in Bendigo. He was also a Fellow of the Royal Australian College of General Practitioners. He had no prior convictions.

26 Written character references were provided by eight general practitioners or specialists.[5] Other written references were provided by two medical receptionists,[6] a medical practice manager,[7] the Chief Executive Officer of an aged care facility,[8] six of the applicant's patients[9] and his fiancée. Most of the referees said they were aware of the charges against the applicant and that he had fine personal qualities and was a caring doctor.

27 Dr Moore and two of the applicant's patients, Mr Adrian Pilchard and Mrs Lee Pickering, gave evidence at the plea. All of them said that they maintained a high opinion of the applicant despite his conviction.

28 In his sentencing remarks, the learned sentencing judge noted that there was 'powerful evidence' as to the applicant's 'professional standing and reputation' in the Bendigo area.[10]

29 Counsel for the applicant submitted that the applicant had not had a fair trial because of defence counsel's failure to call good character evidence and the trial judge's consequent failure to give a good character direction.

30 Counsel submitted that although a trial judge has a discretion as to whether to give a good character direction,[11] in Victoria, it is almost invariable practice for such a direction to be given if an accused relies on character evidence. If the evidence led at the plea hearing had been called at the applicant's trial, the judge would have directed the jury that they could take the applicant's good character into account in assessing the credibility of his statements in his record of interview[12] and in considering whether they were satisfied beyond reasonable doubt that he was guilty of the offences.

31 Counsel contended that this case was distinguishable from TKWJ v The Queen,[13] where the High Court held that counsel's failure to call evidence of character[14] was not productive of a miscarriage of justice, because it was a rational tactical decision taken in order to avoid a forensic risk.[15] In this case, there was no reason for not calling the evidence and the failure to do so could not have been a considered forensic decision. The applicant had been deprived of a chance of acquittal by the incompetence of his counsel. This case was effectively on all fours with the decision of the New South Wales Court of Appeal in D v the Queen,[16] where counsel's failure to lead character evidence in a trial of a man accused of sexual offences against his daughter was held to have resulted in a miscarriage of justice.

32 The applicant submitted that the appeal should be allowed, despite defence counsel's failure to follow up on the issue of good character or to take exception to the judge's decision not to give a good character direction. It could not be said that the case against the applicant was so strong that the failure to lead good character evidence could not have produced a substantial miscarriage of justice.[17]

33 The Crown submitted that the failure of counsel to call evidence would only result in an unfair trial in exceptional circumstances, of which this case was not an example. The judge had a discretion as to whether to give a good character direction and in this case, his Honour had properly decided not to do so because no evidence had been led as to the applicant's character.

34 The failure to lead such evidence had not resulted in any miscarriage of justice. Although substantial evidence of good character was called at the plea hearing, it related mainly to the applicant's professional life, and had limited relevance or probative value to the issues in dispute at trial.

35 Counsel further submitted that defence counsel may have made a forensic decision not to call character evidence. If the witnesses who gave evidence at the plea hearing had been called by the applicant at the trial, they could have been asked whether they maintained their favourable view of him despite the photographs he had taken of his sexual activities with the complainant. In these circumstances, it would be mere speculation to conclude that the failure to lead good character evidence had deprived the applicant of a chance of acquittal.

36 Counsel for the Crown also relied on the admissions made by the applicant in his record of interview and submitted that the strength of the Crown case was such that the failure to call good character evidence had not lead to any substantial miscarriage of justice.

37 It would have been appropriate for defence counsel to ascertain whether the applicant had prior convictions for similar offences before cross-examining Dalton. Having raised the applicant's character with Dalton and received an unresponsive answer, defence counsel should not have left the matter there. Instead, counsel should have sought information from the Crown as to whether the applicant had any prior convictions or there was any other evidence of bad character. It would have been better if the trial judge had granted a brief adjournment so that this could be done.

38 If these steps had been taken, defence counsel would have been aware that the applicant was otherwise of good character. Character evidence could have been called by the applicant, and defence counsel could have sought a good character direction from the trial judge. Although the judge had a discretion as to whether to direct the jury as to the relevance of the applicant's good character,[18] it is highly likely that such a direction would have been given if it had been sought by counsel. Indeed, his Honour specifically raised the issue with counsel.

39 It is not sufficient to show that defence counsel behaved incompetently by failing to call character evidence which might have assisted the applicant. That failure must have caused a substantial miscarriage of justice. As Gaudron J said in TKWJ v The Queen:[19]

As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice.[20] But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of "flagrant incompetence", "egregious error" or the like.

An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen:

'[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.'[21]

Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that "when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused".[22]

The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, "whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue".[24] That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, "it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence".[25] The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.

In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel's conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice. In R v Birks[26] the New South Wales Court of Criminal Appeal held that counsel's conduct constituted "flagrant incompetence"[27] and had brought about a miscarriage of justice. His conduct included failing to cross-examine the complainant on a material matter in accordance with his instructions and failing to take steps to minimise the damage flowing from that failure. As a result, the Crown cross-examined the accused to suggest that his evidence was inconsistent with his instructions to his counsel.

41 In this case, it is not clear why defence counsel failed to call evidence of character. It may be that he simply did not consider it necessary. Counsel's affidavit did not really clarify this matter, although he did not dissent from the applicant's statement that there may have been some concern about the possible effect on character witnesses of the photographs taken by the applicant.

42 The character evidence relied upon by the applicant in mitigation of sentence was powerful. As counsel for the applicant pointed out, each of the witnesses called to give good character evidence on behalf of the applicant at the plea said that they continued to hold the applicant in high regard, despite their awareness of the offences of which the applicant had been convicted. In these circumstances, they may not have revised their opinion of his character even if they had been asked whether they were aware that he had photographed his sexual acts with the complainant.

43 Under s 276 of the Criminal Procedure Act 2009 (Vic), the question for resolution is therefore whether defence counsel's failure to lead good character evidence resulted in a substantial miscarriage of justice.

44 This case is very close to the line. As was observed in Melbourne v The Queen,[28] the fact that character evidence is admissible to establish the improbability that the accused committed the charged offence, is an anomalous exception to common law principles and 'must be regarded as an indulgence to the accused which continues to be maintained for historical reasons'. [29]

45 Further, as Hayne J said in Melbourne v The Queen:

the use that a jury may make of such evidence as is given about the previous character of the accused will vary greatly according to the circumstances of the case. It will vary according to what is said about the previous character of the accused and what relationship (if any) that has to the case that it is sought to make against the accused.[30]

46 The jury might well have thought that the fact that the applicant was a good and caring doctor had little relevance to the sexual offence charges against him. It is a sad fact that persons convicted of sexual offences are sometimes upright members of the community in other respects.

47 Further, some of the applicant's answers in his record of interview could have been regarded by the jury as admissions that he did not believe that the complainant had consented to some or all of the sexual acts he performed on her. That is particularly the case for counts seven, nine and ten, which related to the digital and penile penetration of the complainant's anus, without her consent. Answers given by the applicant indicated that:

• On some previous occasions when he had put his penis in her anus, she had told him he was 'in the wrong hole' and moved his penis away.

• That on the evening of the alleged offences she had told him that she was really drunk and that he had had to hold her up.

• That she was 'out of it, so was I' when they had sex.

• That 'she was and she wasn't' responsive to him when he was having intercourse with her.

• That he did not think that she would have allowed him to digitally penetrate her anus or penetrate it with his penis if she was sober.

• That he did not think she had registered that they had had anal sex.

• That she had told him she was 'really, really, really drunk', that she was leaning over and he had to hold her and was heavily drunk.

• That she would not normally allow him to photograph her naked or performing sexual acts.

48 In light of these admissions, it is arguable that the applicant's admissions would have outweighed any good character evidence to the point that the jury was satisfied beyond reasonable doubt of all the elements of the offences of which he was convicted.

49 However, the record of interview was a mixed bag. Although many of the answers the applicant gave in his record of interview suggested that he did not believe that the complainant consented to all of the sexual acts he committed, some of his other answers were exculpatory. His record of interview was evidence for and against the applicant as to the truth of its contents.[31]

50 Some of the applicant's answers suggested that he believed that the complainant was consenting to at least some of the acts which he performed. He said that they were both drunk and that what occurred was simply a transition from earlier sexual acts. He also said that when he had said he was going to take a photograph she had mumbled 'do whatever you want'; that he had not thought that she had disagreed to having anal sex and that he had assumed she was aware of what he was doing. While the interview as a whole indicated, at the very least, appalling sexual insensitivity on the part of the applicant, it did not necessarily establish that the applicant intended to engage in sexual acts while knowing that the complainant was not consenting.

51 In our opinion, defence counsel's failure to take steps to remove any negative impression caused by Dalton's unresponsive answer, coupled with the failure to call good character evidence, deprived the applicant of a chance of acquittal.[32] If that evidence had been led, some members of the jury might not have been satisfied beyond reasonable doubt that the applicant did not have an honest (albeit unreasonable) belief that the complainant was consenting.[33] Accordingly, we consider that it resulted in a substantial miscarriage of justice.

A substantial miscarriage of justice resulted from the failure of the trial judge to give any adequate directions to the jury concerning the intoxication of -

(a) the Applicant, and its effect on the formation and existence of the mental element of the offences charged;

(b) the complainant, and the effect her intoxication may have had on -

(i) the reliability of the complainant's evidence;

(ii) the Applicant's awareness concerning consent or non-consent.

53 The applicant argues that the learned trial judge was required to direct the jury that:

• the applicant's intoxication was relevant to whether he was aware that the complainant was not freely agreeing (or might not be freely agreeing) to the sexual activity in question;

• the prosecution bore the onus of removing any reasonable doubt in relation to the applicant's state of mind which had been raised by evidence of his intoxication;

• the prosecution was required to prove beyond reasonable doubt that the applicant's intoxication, and its possible consequences on his thinking and perception, were not such as to deny the existence of the requisite state of mind or intention which might otherwise have been apparent from other evidence; and

• evidence of the applicant's intoxication was relevant to whether he was aware that the complainant was not consenting, or might not be consenting.

54 At the hearing of the appeal, the applicant's counsel further submitted that the judge did not sufficiently relate his directions on the relevance of the applicant's intoxication to the specific intent required for the offence of rape.

55 In his Charge, the learned trial judge directed the jury as follows:

the accused man in his record of interview said that the complainant was quite drunk, he said they were both quite drunk, and perhaps it was because of his state of intoxication that he misunderstood what her state was, and you will recall that the record of interview proceeded ... on the basis that she was quite drunk and various questions were put to the accused man on that basis.

There is quite a bit in the record of interview as to the amount of alcohol [the applicant] had had to drink that night and he says he was quite drunk and, of course, that may have affected his perception of the situation and you do have to look at what his state of mind was from a subjective point of view and so you can take into account that his perception of the state of affairs might have been affected by the alcohol he had to drink.

56 The jury subsequently sought clarification of the relevance of intoxication by asking the following question:

Can we get a statement on whether we take his state of intoxication into account at the time in terms of deciding the accused's state of mind (Item 4 on the checklist).

57 In response to this question, the trial judge responded as follows:

The answer there is yes. It's a subjective test. Yes, it's a subjective not an objective test so you can take into account what you regard as his state of intoxication and the effect of that on his state of mind at the time of offending. All right. At the time of the alleged offending; at the time the acts took place, that's the appropriate way to put it.

58 In relation to the applicant's belief as to the complainant's consent, the trial judge directed the jury as follows:

As I told you consent means free agreement so the prosecution has to prove that at the time of the alleged touching the accused was aware that the complainant... was not freely agreeing to be touched or might not have been freely agreeing to be touched.

I have already directed you about some circumstances that the law deems to be circumstances in which the complainant did not freely agree or consent to being touched. Applying those directions to this fourth element, that element will therefore be satisfied if the prosecution can prove beyond reasonable doubt that the accused man was aware that the complainant was submitting to being touched because of force, or the fear of force, or the accused was aware that the complainant might be submitting for this reason, or that he was aware that she was so affected by alcohol as to be incapable of freely agreeing, or that he was aware that she might be so affected by alcohol as to be incapable of freely agreeing.

As you are aware here, the prosecution alleges that the accused was aware that she was not consenting, or might not have been consenting, whereas the response of the defence is that the accused was unaware that the complainant was not consenting, or might not have been consenting. Again, I will take you to the evidence on that shortly, the parts of the evidence which are relevant on that issue. If the prosecution cannot exclude this possibility beyond reasonable doubt, then this fourth element of indecent assault will not be met. It is for you to determine whether the prosecution has proved that the level of awareness necessary for this element to be satisfied, and in making this determination, you have to consider all of the circumstances.

You must consider whether the prosecution has proved this element by having regard to the evidence that the accused believed at the time of the indecent act that the complainant was consenting to that act. If you cannot exclude it is a reasonable possibility that the accused believed that the complainant was consenting to the act, then the prosecution will have failed to prove that element.

It is not for the accused to prove that he believed that the complainant was consenting. That is important to remember that. Instead, it is for the prosecution to prove beyond reasonable doubt that the accused was aware that the complainant was not consenting, or might not be consenting.

In assessing any evidence as to whether the accused believed the complainant was consenting you must consider whether it would have been reasonable for him to hold that belief in all the circumstances of this case. In considering the reasonableness of the accused's alleged belief the law says, you must have regard as to whether the accused took any steps to find out whether the complainant was consenting, and if so, the nature of those steps.

The law also says that, if you are satisfied that the complainant was not consenting, because you found that she was submitting to be touched because of force or the fear of force or that she was so affected by alcohol as to be incapable of freely agreeing, then in considering whether the belief of the accused was reasonable, you must have regard as to whether he was aware of those circumstances. The law says that you must have regard to the reasonableness of the accused's alleged belief in her consent in the way I have directed you.

However, you must not find this fourth element is proved just because you form the opinion that the accused's belief was unreasonable, instead the reasonableness or unreasonableness of his alleged belief, is no more than a guide to help you decide whether or not the accused had that belief. Look at all the circumstances in deciding this issue, don't just focus on one factor and ignore the rest. You have to look at all the circumstances and you have to consider all the evidence including anything that is said or done in the circumstances. That's the fourth element which is a fairly complex one as you would appreciate from just what I have said to you. That is the fourth element.[34]

59 In our opinion, his Honour adequately directed the jury that the prosecution bore the onus of proving beyond reasonable doubt that the applicant did not know that the complainant was not consenting to the sexual acts. He also reminded the jury that in his police interview, the applicant had said he was drunk and that it was the applicant's subjective state of mind which was relevant. This was further reinforced in the judge's answer to the jury question when he said that:

Yes, it's a subjective not an objective test so you can take into account what you regard as his state of intoxication and the effect of that on his state of mind at the time of offending.

60 Further, no exception was taken to the judge's answer to the jury question. Even if his Honour's answer had not emphasised the relevance of the applicant's intoxication in determining whether the prosecution had proved that he did not believe that the complainant was consenting, defence counsel's failure to take exception indicated that, in the particular context of the trial, he saw no unfairness in the judge's charge.[35] In these circumstances, this ground fails.

61 For the above reasons, we would grant the application for leave to appeal against conviction, allow the appeal and remit the matter for retrial.

[1] DPP v Sharma (Unreported, County Court of Victoria, Judge Shelton, 17 November 2010) ('Reasons') [7].

[2] Different counsel appeared for the applicant in his application for leave to appeal against his conviction.

[3] Affidavit of Arvind Krishan Sharma, 16 September 2011, [8].

[4] Affidavit of Rodney Willcox, 18 October 2011, Appeal Exhibit 1, [5].

[5] Dr Ray Moore, Dr Richard Hadkins, Dr Una Kennedy (all of whom worked as general practitioners); Dr Adrian Elderhurst, Dr Havea, Dr A Leslie Fisher, Dr Keith McCullough and Mr Wayne Hon (all of whom worked as medical specialists).

[9] Ms Lee Pickering, Mr Tony Martin, Ms Sharon Rowell, Ms Eileen Treloar, Mrs Michelle Rankin and Ms Jennifer McKenzie.

[11] Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, following Simic v the Queen [1980] HCA 25; (1980) 144 CLR 319.

[12] Counsel relied on the reasons of Callinan J in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, 69 [199] in support of the use of evidence of good character to support the credibility of statements made out of court.

[13] [2002] HCA 46; (2002) 212 CLR 124.

[14] The alleged incompetence was actually the failure to seek an advance ruling as to whether the judge would hold other evidence admissible if the evidence of good character were called.

[15] The risk was that the another witness would be called to give evidence relating to outstanding sexual offence charges against the accused.

[16] (1996) 86 A Crim R 41.

[17] Compare Nudd v R [2006] HCA 9; (2006) 225 ALR 161, 200, [159]−[162]. The incompetence of counsel in that case related to his misunderstanding of the elements of the offence and his conduct of the case on that basis.

[18] Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1.

[19] [2002] HCA 46; (2002) 212 CLR 124, 134−5 [31]−[33].

[20] The reference to a miscarriage of justice (rather than a substantial miscarriage of justice) was made prior to the enactment of s 276 of the Criminal Procedure Act 2009 (Vic) and also the decision of the High Court about the operation of the proviso in s 568 of the Crimes Act 1958 (Vic) in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[21] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517.

[22] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ). See also 273 (Mason CJ); 275 (Brennan J).

[23] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 149−50 [79]−[80].

[24] R v Scott (1996) 131 FLR 137, 152−3.

[25] R v Birks (1990) 19 NSWLR 677, 685.

[26] (1990) 19 NSWLR 677.

[28] [1999] HCA 32; (1999) 198 CLR 1.

[29] Ibid 20 [47] (Mc Hugh J). See also 33−5 [90]; 42−3 (Kirby J, who dissented on the issue of whether a good character direction should have been given).

[30] [1999] HCA 32; (1999) 198 CLR 1, 55.

[31] R v Berry; R v Wenitong [2007] VSCA 202; (2007) 17 VR 153.

[32] Cf, Teeluck v State of Trinidad and Tobago; John v Same [2005] UKPC 14; [2005] 1 WLR 2421, 2432−33.

[33] In Worsnop v The Queen (2010) 204 A Crim R 38, this Court held that if a jury accepted that the accused believed that the complainant consented to the sexual act, the accused could not be convicted of rape, even in circumstances where the accused was aware that the complainant might not be consenting.

[34] It was not a ground of appeal that the judge made the same error which was found in Worsnop v the Queen (2010) 204 A Crim R 38.

[35] See, eg, R v Burrows [2003] VSCA 130; (2003) 140 A Crim R 533.