SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0182

HOWARD NICHOLS (a pseudonym)	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGES:	BEACH, KAYE JJA and MACAULAY AJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	27 September 2021	
DATE OF JUDGMENT:	1 October 2021	
MEDIUM NEUTRAL CITATION:	[2021] VSCA 273	
JUDGMENT APPEALED FROM:	DPP v [Nichols] (Unreported, County Court of Victoria, 28 November 2019)	

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CRIMINAL LAW – Conviction – Appeal – Applicant convicted of rape – Applicant’s evidence difficult to understand by reason of language difficulties – No interpreter engaged – Whether difficulty in understanding applicant’s evidence occasioned substantial miscarriage of justice – Criminal Procedure Act 2009, s 335 – Language difficulties not occasioning any miscarriage of justice.

CRIMINAL LAW – Conviction – Appeal – Applicant lied to police in record of interview – In evidence, applicant sought to explain reason for lying to police – Applicant sought to call evidence of telling the truth to other witnesses shortly after lying to police – Applicant’s prior representations admissible under ss 66 and 108 of the Evidence Act 2008 – Evidence of prior representations not led due to counsel misunderstanding trial judge’s ruling permitting evidence to be adduced only from applicant pursuant to s 108 of the Evidence Act – Misunderstandings between judge and counsel leading to relevant and significant evidence not being adduced – Substantial miscarriage of justice occasioned by reason of relevant and significant evidence not being adduced at trial – Evidence Act 2008, ss 66 and 108 – Application for leave to appeal granted – Appeal allowed – Retrial ordered.

CRIMINAL LAW – Conviction – Appeal – Allegation by prosecutor in final address of extreme collusion between applicant and defence witness – Prosecutor not aware of any basis to put allegation until after applicant had completed his evidence – Prosecutor should have sought to recall applicant if allegation of collusion was to be made – Allegation of collusion should not have been made without applying to recall applicant – No objection taken by trial counsel – No miscarriage of justice occasioned by prosecutor’s address.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	Mr D A Dann QC	Stary Norton Halphen	
			
For the Respondent	Mr R L Gibson QC	Ms A Hogan, Solicitor for Public Prosecutions	

BEACH JA
KAYE JA
MACAULAY AJA:
1	On 28 November 2019, following a seven day trial in the County Court, the applicant was found guilty of one charge of rape contrary to s 38(1) of the Crimes Act 1958.  On 24 April 2020, following a plea hearing on 27 March 2020, he was sentenced to a term of imprisonment of 6 years, with a non-parole period of 3 years and 9 months.
2	The applicant now seeks leave to appeal against his conviction.  His proposed grounds of appeal are as follows:
1.	A substantial miscarriage of justice has occurred in circumstances where on account of the applicant’s language difficulties — there is an unacceptable risk that the jury were not able to adequately understand the evidence that the applicant gave in the trial. 
2.	A substantial miscarriage of justice has occurred in circumstances where: 
(a)	the jury did not get to hear of a prior consistent (with the applicant’s evidence before the jury) version from the applicant;  and 
(b)	the prosecution case was characterised by the judge as involving the submission that the applicant had developed the version of events given in the witness box — after becoming aware his ‘DNA was found in her (the complainant’s) vagina’. 
3.	A substantial miscarriage of justice has occurred in circumstances where the applicant was accused of engaging in extreme collusion with another defence witness in circumstances where there was not a proper basis for such an accusation to be made. 
4.	As a result of an aggregate of errors a substantial miscarriage of justice has occurred.
The Crown case
3	In January 2016 the complainant, Mikaelya Esson, was 18 years of age and was living in shared accommodation in Dandenong North.  The Crown case was that on 25 January 2016 at approximately 8.00 pm, she was picked up from her home by her boyfriend, Michael, together with the applicant, and another male whose name she did not know.  They drove to an address in Footscray for the purpose of drinking with others who were also present at, or attending, that address.  At about 10.00 pm, they left the Footscray premises to purchase alcohol, before again returning and resuming drinking.
4	At some stage during the night, the complainant, the applicant, Michael and the unknown friend left the Footscray premises, travelling to the applicant’s apartment in Maidstone.  At the applicant’s apartment, they drank alcohol in the lounge room until about 8.00 am the next morning.  The Crown case was that after he had been drinking for some hours, Michael left the lounge room and went to sleep in the applicant’s bedroom.  The complainant fell asleep on a mattress on the floor of the lounge room.  The applicant was on the couch, and the unknown male was on the mattress on the floor, lying beside the complainant.
5	The next thing the complainant knew was that she felt someone touching her on the vagina.  We interpolate that this was not an act with which the applicant was charged.  As the judge put it, when sentencing the applicant, this evidence was led as context evidence.  The complainant’s evidence at trial was that she jumped up straight away and asked who had been touching her.  She said that the applicant told her that she should move to the bedroom.  She went to the bedroom and laid down on the bed, next to Michael, and fell asleep.
6	The Crown case was that some time later, the complainant woke up.  She was on her stomach, with a sheet pulled over her head.  Her pants were down to her ankles, and the applicant’s penis was in her vagina.  The complainant jumped up, pulling her pants up and grabbed the applicant by the ear and started screaming and punching him — causing bruising to her hands.  Michael woke up and broke up the fight.  About 10 or 20 minutes later, Michael drove the complainant home.
7	The complainant reported what happened to her father (Daniel Esson), and her grandmother (Matilda Esson), and the police were called (the complainant made a call to 000 on the afternoon of 26 January 2016, in which she said that she had been raped at about 12.00 pm that day).
8	Subsequently, the complainant underwent a medical examination.  Later, a forensic examination detected the presence of sperm in swabs taken from the complainant’s high vaginal and perianal areas.  DNA testing confirmed the presence of the applicant’s sperm in these swabs.
9	On 14 June 2016, the applicant was arrested and interviewed by police.  In his record of interview, the applicant said that he did not know the complainant’s name and did not recognise a photograph of her.  He said he did not know anything about any sexual assault.  He said that he had not seen Michael in 2016 apart from ‘in Footscray the other day while he was playing pool’.  He also said that he had not seen Michael’s girlfriend and that he had no idea who she was.  The Crown case was that the applicant’s denials in his record of interview were false.  The applicant’s lies to police were relied upon by the Crown as incriminating conduct within the meaning of s 18 of the Jury Directions Act 2015.
The trial
Prosecution witnesses and evidence
10	The principal witness for the prosecution at trial was the complainant.  She gave evidence in conformity with the Crown case.  She described what happened after she laid down on the bed next to Michael as follows:
I was on my side.  Um, I think I was cuddling him before I started to fall asleep. … I had had a lot of alcohol.  Um, I mean I’d been drinking basically all night, and it was about eight o’clock in the morning by the time that we jumped into bed, so we were all pretty ready to pass out … .

The next thing I recall is, um, waking up on my stomach, and, ah, I tried to look, um, to see what was going on, and a sheet was pushed over my head.  And when I’d finally properly woken up and realised what was going on, I jumped up.
Well, what did you realise was going on?---That I was being sexually assaulted.
And when you say ‘sexually assaulted’, how were you being sexually assaulted?---He had his penis in me.
And I’m sorry to be so specific, but when you say, ‘in me’, what do you mean by ‘in me’?---It was in my vagina.
So what did you do then?---I, um — I got up, um, pretty confused and angry, and he jumped off me.  And I grabbed him by the ear, and I started punching him.
Well, when you say ‘he’, did you recognise the person who you grabbed by the ear?---Yeah, definitely.
And who was that person?---[The applicant].
11	In cross-examination, the complainant agreed that she had met the applicant on two previous occasions.  However, she denied suggestions that she had been ‘flirtatious’ with him, or that they had exchanged phone numbers.
12	As to what occurred after the applicant, the complainant, Michael and the unknown male returned to the applicant’s apartment, counsel for the applicant suggested that, following further drinking, the applicant eventually fell asleep and went to bed after being told to do so.  The complainant denied this.  It was then suggested that the complainant went to the applicant’s room, climbed into bed with him and, at her suggestion, the two of them had sex.  She denied each of these suggestions, saying ‘most definitely not’ to the last suggestion.  The complainant was then asked and answered the following questions:
[The applicant] said to you that he didn't want to have sex without protection and he had no protection?---No. 
So you left the room and went to fetch your bag - - -?---No. 
- - - from that common area where all of you had been drinking?---No. 
You returned with your bag and you had a condom in the bag?---No. 
The two of you commenced having sex and eventually stopped because it was quite painful?---No. 
You then fell asleep?---No. 
You got up at about 11 am, a bit before lunchtime?---I woke up at around 12 I think. 
And you commenced drinking again?---No, I didn't. 
[Michael] was present and he was drinking?---No. 
And you invited [the applicant] to have a drink as well?---No. 
… 
Some time later, after you'd been drinking for a little period with [Michael], you asked [the applicant] for some money to go home in a taxi?---No. 
You asked him for about a hundred dollars?---No.
He told you that he had no money and that he'd spent most of his money the evening buying alcohol and other things?---No. 
… You then said to [the applicant] that if he didn't give you some money you'd report him to police?---No. 
… There was a brief pushing and shoving between the two of you?---No. 
And [Michael] your boyfriend and Joseph the flat mate came and broke it up?---No.  
And it was at that time [Michael] then drove you home?---[Michael] did drive me home, yes.
13	The complainant’s father, Daniel Esson, gave evidence that the complainant rang him after lunch on 26 January 2016.  She was hysterical.  She said she had stayed in Melbourne overnight and, in the middle of the night, she had been raped.  Mr Esson said the complainant gave him details, ‘but she was, you know, she was hysterical and it was hard to understand what she was saying’.  When pressed for further detail, Mr Esson said that his daughter told him that she had been asleep and woke up ‘and this fellow was on top of her and raping her and she tried to fight him off’.  Mr Esson told his daughter to ring his mother (her grandmother) and tell her what happened.  He also told her to ring the police. 
14	The complainant’s grandmother, Matilda Esson, gave evidence that on 26 January 2016 she received a phone call from her son, Daniel, who was at a conference meeting in Ballarat, asking her to ring the complainant straight away.  Ms Esson rang the complainant, who told her that she had been raped.  When asked to recall to the best of her ability what the complainant was saying to her, Ms Esson said:
I was asleep, and a bastard was on me.  He woke me up.  … I belted him.  I hate him.
15	Ms Esson said that the complainant was ‘repetitive, over and over’.  She told the complainant that she needed to go to a police station.  At some point in the conversation when Ms Esson became emotional, she handed the phone to her partner, WM.
16	WM gave evidence that he was present on 26 January 2016 when Ms Esson was speaking to the complainant on the phone.  He noticed that his partner was getting very stressed and very agitated.  He spoke to the complainant when Ms Esson offered him the phone and asked him to talk to the complainant.  WM’s evidence was that the complainant was ‘fairly hysterical’.  He said that she seemed ‘a bit confused as to where she was, and she was very, very upset’.
17	WM gave evidence that when he finally calmed the complainant down, he told her to go to the nearest street corner, ring the police on 000 and tell them what had happened, and wait until they turned up.  He said the complainant listened to what he was saying, and that was the end of the conversation.
18	Doctor Andrea Ryan gave evidence that she is a qualified medical practitioner who was a clinical forensic medical registrar employed by the Victorian Institute of Forensic Medicine in January 2016.  On 26 January 2016, she conducted a physical examination of the complainant.  The complainant gave her a history that she was sleeping at the home of a male acquaintance.  She was lying down on her stomach.  He had sex with her, which Dr Ryan said she clarified with the complainant as meaning ‘penile vaginal penetration and that this happened from behind’.
19	Dr Ryan gave evidence of bruising she found on the complainant’s neck, abdomen, lower back, right hand, right wrist, right upper arm, left arm, right leg and left leg.  Dr Ryan gave evidence that the bruising on the complainant’s hands was consistent with a punch and that that bruising was consistent with punching having occurred at around midday on the day of her examination.  Dr Ryan gave evidence that she took a number of samples for forensic examination, including a higher vaginal swab and a perianal swab.
20	Alexandra Salerno gave evidence that she is a forensic officer with the Biological Services Group of the Forensic Services Department at the Victoria Police Forensic Services Centre.  Her evidence concerned DNA testing of the samples taken by Dr Ryan.  Sperm was detected on the slides labelled ‘high vaginal’ and ‘perianal’.  The sperm fractions of these samples were tested to determine whether the applicant could be excluded or not excluded as a contributor to the DNA result.  Ms Salerno was asked what result she found.  She said:
A statistical calculation was conducted along this comparison and to do this we look at two explanations of the evidence, either [the applicant] is a contributor or [the applicant] is not a contributor to the DNA detected.  The statistical rating of this result is that the DNA evidence is 100 billion times more likely if [the applicant] is a contributor to the DNA detected.
21	Detective Sergeant Hastings and Detective Senior Constable Owen, who investigated the complainant’s allegations, gave evidence of their investigations.  During the course of DSC Owen’s evidence, the applicant’s record of interview (conducted on 14 June 2016) was played to the jury.  DSC Owen gave evidence that she spoke to Michael, but that he did not wish to co-operate with the police investigation.  In cross-examination, DSC Owen agreed that the applicant did not have any criminal convictions or any matters outstanding.
Defence witnesses and evidence
22	The applicant gave evidence at trial and called five witnesses:  AJ, a person he shared his apartment with during January 2016, and who was at the apartment on 26 January 2016;  and four character witnesses, BW, CW, NN and JB.
23	The applicant gave evidence that he was born in Zaire and came to Australia in 2003 as a 14 year old.  He did not speak English before he came to Australia.  When the applicant first arrived in Australia, he enrolled in an English language school.  He then went to High School.  He won a scholarship to a secondary school.  After completing his secondary schooling he went to Victoria University, where he qualified to become a youth worker.  However, at the time of trial, the applicant was working in a timber yard where he had worked for a number of years.
24	The applicant’s evidence was that on 25 January 2016, he started drinking at about 7.00 or 8.00 pm.  He said that as at January 2016 he had known Michael for ‘three years or something like that [or] more’.  He was asked what he told the police during his interview about Michael.  He said:
On the night of the Michael I did lie — I didn’t intention to lie to the police but I was really scared and shock and I know where in my old country when he just arrest with something like that the police will not let you home.  You’re straight to the gaol and then they can maybe kill and this thing has come to my mind on the day I thought that I wish they way to get away to the police to get away on the (indistinct) thing to tell my people who know me.  So then I just didn’t have good interview with them, so I just wait to get away from the police from the police station and then to tell the truth what is the truth.  Yep.
25	This answer, like all of the applicant’s evidence at trial, was given without the assistance of an interpreter.  We will return to that issue when dealing with proposed ground 1.
26	The applicant’s evidence was that he had met the complainant on two occasions before 25 January 2016.  They had exchanged phone numbers.
27	The applicant recounted the events of the evening of 25 January 2016, culminating in the applicant, the complainant and Michael returning to the applicant’s apartment at about 11.30 pm or midnight.  They had purchased alcohol and continued drinking in the sitting room of the applicant’s apartment, together with the applicant’s housemate, AJ.  The applicant described feeling tired and wanting to sleep, and going to his bedroom.  He said that about 30 minutes later, the complainant came in to share his bed.  He said he was in bed, and the complainant started touching him.  He said he told the complainant:
No, I can’t do it.  I don’t have any — no condom.
28	The applicant gave evidence that the complainant went back to the sitting room to get her bag.  She returned and said, ‘we have to have sex’.  The applicant’s evidence was he again said no as they did not have a condom.  The applicant then described the complainant grabbing her bag and giving him a condom.  He said they had sex.  The applicant said that the complainant said to him, ‘You too good.  You too big, and (indistinct) a bit slow’.  The applicant said that he then went to the toilet.  From his evidence-in-chief, it appears there was some problem with the condom.  The applicant said that the complainant said, ‘You didn’t do properly’.
29	After removing the condom, the applicant said that he returned to bed and they went to sleep.  Some hours later, he woke up to find that the complainant had left his bedroom and was again in the sitting room.  It was about 11.00 am.  They started drinking again.
30	The applicant’s evidence was that at about 1.00 or 2.00 pm on 26 January 2016, Michael wanted to leave, and the complainant was going to leave as well.  She called him into the hallway and said she wanted money.  She asked for $100 and said ‘You’ve got to give me money’.  The applicant refused, and the complainant became angry.  She threatened to call the police to report him.  His evidence was he replied by saying, ‘Okay, call the police now’.  The applicant gave evidence that the complainant grabbed him on his clothes.  He was asked about what happened then.  His answer was:
Well, the boy came.  Ah, and Michael came and AJ came and said, ‘what happened’ because they knew that — that, ah, no, I — I raised my boy up better.  No money.  I don’t have no money.  So, and also, they hear she’s afraid.  She is saying that and then I — I — I said that the girls me, like, I said I will give money.  And they — last night, but I didn’t agree something to — about money on (indistinct), or to have (indistinct) with money, or whatever, like that, what for?  Like, I didn’t agree with her like that.  Didn’t — that’s why she’s not happy.  She told me I’m a — the (indistinct).
31	The applicant was asked again about his interview with police.  He said:
On interview it was I didn’t intend to — really didn’t intend to be lie to the but I was scared on the — on the — on that day really because where I came from when is something really like back and then they don’t let you back home again.  They just when the police like that they arrest you and then they just want you — to put you into gaol and they kill you some time.  That’s was in come to my mind.  I was really scared and I was scared and I tried a way to get away from the police the way I (indistinct) and go to tell other people but I — after I lie to the police I tell to other people, so the truth — so but I didn’t tell them what was happening.
32	In cross-examination, the applicant agreed that, before he was interviewed by police, he was given the opportunity to talk to a lawyer.  He said he spoke to a lawyer for about five minutes.  He knew he could say ‘no comment’ but he ‘messed everything up’ and told lies to the police during the interview because he was afraid that they would lock him up.  
33	In cross-examination, the prosecutor put to the applicant the complainant’s version of what occurred at the applicant’s apartment on the morning of 26 January 2016.  The applicant denied the complainant’s allegations, maintaining that the sexual intercourse between them was consensual.
34	Having regard to the forensic evidence that the applicant’s sperm was found on swabs taken from the complainant, the applicant was cross-examined about whether he was wearing the condom when he had sex with her.  He agreed that the condom was on his penis, and that he had carefully put the condom on ‘to make sure that it was fitting properly’.  The applicant was asked and answered the following questions:
Now, you’ve said in your evidence that you went from the bedroom — was it to the bathroom to take the condom off?---Yeah.
As I took a note of what you said in your evidence that the condom, you took it off and that it didn’t do it properly?---Yeah, I think I didn’t do it (indistinct) when I went to the toilet, it really hanging — very much, not like before.  Even I was worried for that as well.  It was hanging a little bit like — a little bit like that.  I don’t know it’s like really like this.  But it’s still on.  
It’s still on and not broken?---No, I’m not really sure.  Not sure about that.  
Not sure of that?---If it was broken, why it’s like that.  I’m not really sure.
You heard the evidence of the forensic expert yesterday who gave evidence about your DNA from your semen being found in [the complainant’s] vagina?---Yeah.  But I tell truth what I was on and I’m really not sure whether it broke or whether they already there.  I’m not really sure.  But the (indistinct) I got it, I thought I pulled it but I didn’t go and check it just (indistinct words).
35	The applicant was cross-examined about the difference between him being comfortable to threaten the applicant to call the police on the morning of 26 January, but then being afraid of the police when he went to the police station to be interviewed.  He said he was comfortable about calling the police to his apartment because there were witnesses who could tell the police what happened;  whereas he was afraid at the police station because it was not in public and he was on his own.  
36	The applicant was cross-examined about Facebook messages in which the complainant asserted to the applicant that he had raped her.  He agreed that he had received such messages, and that he had responded to the complainant with statements like:
Please respect.  I don’t think you know me.  
…
Don’t call me again otherwise I’ll report you to the police.  
37	It was put to the applicant in cross-examination that nowhere in his Facebook responses to the complainant did he say that the complainant’s allegations were false.  The applicant explained this in his evidence as follows:
I was — that’s what I say I was with wife next to me and — because I don’t want something which is my wife doesn’t know it, to be honest.  I don’t want to — her to make big argument.  If the messages, they would be come and they would be making a mess to me, to be honest.  That’s what I — I was next to my wife, was next to me, that’s what I said.
38	
AJ gave evidence that he and the applicant shared a flat.  He said that the applicant was ‘a very gentle man’, ‘a man of integrity’.  He was asked about the night of 25/26 January 2016.  He gave evidence that the applicant, the complainant, Michael and the fourth person who returned to the apartment were drinking.  The applicant and the complainant were sitting next to each other.  The applicant looked tired, so AJ told him to go to bed.  AJ said that after a while, the complainant decided to go to the applicant’s room.  They stayed there for about five or 10 minutes, before she came back to pick up her bag and then go back to the applicant’s room.  AJ then went to bed.
39	AJ gave evidence that the next morning he got up and came into the sitting room.  The complainant and the applicant were still in the applicant’s room.  Later they came out and started drinking again.  AJ said they were ‘actually socialising and they were doing things’.  After some time, the applicant and the complainant went into the hallway.  AJ overheard the applicant say that he had no money to give the complainant.  He said the complainant raised her voice.  The argument increased, and he overheard the complainant say, ‘You raped me’.  AJ’s evidence was that he also heard the applicant say, ‘If I did, why didn’t you call the police’.  He said they then started to fight.  AJ’s evidence was then:
And then we separate them.  I say, ‘no, that is not the way.  What happened?’ and then I tell [the applicant], ‘what money, the woman say?’  And then [the applicant] say, ‘she said she need the money for transport.  And I say we use all the money, I don’t have any.  So now she said I raped her.’  And then I say, ‘Okay, this is not a good argument.’  Then I go, ‘Okay, if [the applicant] raped you why didn’t you raise it last night at the time that he raped you?’
40	In cross-examination, AJ said that he was still living with the applicant — they had been friends for a long time, having shared many experiences together in Africa and Australia.  It was put to AJ that, in fact, he and the applicant were cousins.  AJ agreed saying, ‘Yeah, that’s right’.
41	AJ was asked how many times he had spoken to the applicant about what had occurred on 26 January 2016.  He said they had never discussed it.  It was suggested to him in cross-examination that he had never witnessed anything happen between the applicant and the complainant and had never seen or heard any fight.  He rejected those suggestions, saying he was inside the apartment.  The relatively short cross-examination of AJ concluded with the following questions and answers:
What you’ve told the Court today is all untrue?---How?
Because you have told the Court just what [the applicant] asked you to tell the Court, haven’t you?---No.  I was  — I was in the flat at the same day.
42	BW gave evidence that she first met the applicant about nine years ago at a hardware shop where the applicant was working.  Her husband subsequently invited the applicant to their home for a meal, and they had had a lot of contact with him since.  She described the applicant as an honest person with a shy personality.  She also said that he was ‘amazingly resilient and brave, given his life story’.  She thought he was brave and resilient because of his journey to Australia and his background as a refugee.  She described the applicant as ‘a gentle person, non-aggressive’.  She said he was ‘respectful’ and ‘appreciative’ of her family’s support of him.  In cross-examination, she said she had never been present with the applicant during a time when he had been ‘in an all-night drinking session’.
43	CW gave evidence that he first met the applicant in a hardware store about 10 years ago.  CW was moved by the applicant’s ‘back story’.  CW described his family as having supported the applicant through difficult times, particularly as a refugee struggling to make his way in Australia.  He described the applicant as a very treasured member of their family who had worked hard after arriving in Australia.  CW described the applicant as ‘always a gentleman’, ‘incredibly positive and polite’ and ‘caring’.
44	CW was asked about the applicant’s ability to communicate with him in English over the time they had known each other.  He replied:
Challenging, to say the least.  Ah, [the applicant’s] first language is, I believe, Didinga.  His second language is English.  He learned English in a refugee camp from the age of 10 to about 14.  So, it wasn’t perfect English.  When he came to Australia I think he struggled with it.  He has got a very strong accent and we have known him for, well, 10 years and even now we struggle at times in conversation to understand him.  And the consequence of that with Peter is that when he’s concerned and emotional about something, wants to get a point across, he will become less intelligible and harder to understand and has to be pressed.  Eventually we get there, but it’s not an easy journey and we’ve known him for 10 years.
45	NN gave evidence that he had known the applicant since 2004.  He ran a mentoring program for young refugees and met the applicant shortly after the applicant arrived in Australia.  NN said he was the applicant’s mentor.  He described the applicant’s tenacity in arriving in Australia at the age of 13 with no family, no money, no English, no education and yet being able to get himself a degree.  He described the applicant as being well liked and happy.  He also said that the applicant was a gentleman.  He had never seen the applicant being aggressive or angry or wishing to harm or hurt anyone in any way.  
46	JB gave evidence that he was the managing director of a timber and building supplies chain of stores.  In 2006, the applicant obtained casual employment in one of his company’s stores, and JB has known the applicant ever since.  JB described the applicant as ‘infectious and reliable, honest and he’s had a great effect on the other employees around the branches as well’.  JB had never heard anything negative about the applicant.  He described the applicant as ‘very respectful’.
Proposed ground 1:  the applicant’s language difficulties
47	Proposed ground 1 concerns the question of whether there was a substantial miscarriage of justice because there is an unacceptable risk that the jury were not able to adequately understand the applicant’s evidence at trial on account of what the applicant describes as his ‘language difficulties’.  
	Parties’ contentions
48	The applicant submitted that his defence hinged on the jury being able to understand and fairly consider his evidence on the following key points:
•	his knowledge of the status and any relationship between the complainant and Michael;
•	the circumstances in which he went to bed on returning to his apartment;
•	his explanation and description of the consensual sexual activity he said occurred between him and the complainant;
•	his description and explanation of the wearing and removal of a condom (in circumstances where evidence had been given that a lot of his sperm was located in the complainant’s vagina);
•	his explanation as to why he did not give his version of events, as to the consensual sex that occurred, in his record of interview;
•	his explanation about why he lied to police in his record of interview;
•	his explanation about why he did not respond to the complainant denying her allegations of rape in the Facebook messages that she sent to him;  and
•	his description of the verbal and physical exchanges he had with the complainant on 26 January 2016.
49	The applicant contended that the transcript is redolent with examples where the applicant’s evidence was at best difficult to follow and, at worst, unintelligible.  The applicant identified multiple occasions where (notwithstanding repeated attempts) the transcript writers could not transcribe the words the applicant had used in his evidence before the jury.
50	The applicant acknowledged that the absence of an interpreter at his trial was a forensic choice made by his trial counsel.  He submitted, however, that where the forensic choice related to whether it could ultimately be said that the jury were in a position to adequately understand what the applicant was saying, the fact that a forensic choice had been made, to proceed without an interpreter, could not be the end of the inquiry.  In support of that proposition, the applicant relied upon statements made in the judgment of Kirby J in Re East;  ex parte Nguyen.
51	The applicant noted that at numerous points during the applicant’s evidence, either his trial counsel or the prosecutor or the judge referred to difficulties understanding the applicant’s evidence and/or difficulties the transcript writers were having in transcribing that evidence.  Relying again on Kirby J’s judgment in East, the applicant submitted that what was ‘called for’ was ‘a different type of intervention from the judge’.
52	The applicant submitted that what was of most concern was the fact that the jury, during the course of the applicant’s evidence, said that they were having difficulty in hearing and understanding the applicant.  While headsets were then provided for the jury, the applicant noted that the real issue concerned the applicant’s accent and language difficulties, rather than the volume of his evidence.  Moreover, the headsets were only provided when the applicant was two-thirds of the way through his evidence.
53	The respondent submitted that the applicant’s trial counsel made a ‘soundly based’ forensic choice not to rely on the assistance of an interpreter.  It submitted that, objectively speaking, the decision of the applicant’s trial counsel did not result in any miscarriage of justice.
54	The respondent contended that, given the applicant’s background (having arrived in Australia in 2003 at the age of 13;  having completed English studies at an English language school and then being educated at two secondary colleges and a university;  having worked in a hardware store since the age of 15;  and having been able to speak to the complainant and others on the night of the incident in English without any apparent difficulty), ‘it would have appeared decidedly odd to the jury if the applicant had used an interpreter when he had been interviewed [by police] without one’.  The respondent noted that permitting the use of an interpreter does not mean that no scrutiny of that use (or abuse) could have been made at trial.
55	Next, the respondent submitted that, given the applicant’s language problems seemed to be associated with stress and the pressure of giving evidence (having to account for his numerous lies) and facing cross-examination on his story, it is by no means clear that an interpreter would have made the applicant’s evidence more intelligible.  The respondent observed that the character witness CW gave evidence that when the applicant is ‘concerned and emotional and wants to get his point across he becomes less intelligible and harder to understand’.
56	Finally, the respondent contended that this was not a difficult case to comprehend from either the prosecution or the defence perspective.  Much of the factual matrix was agreed.  The applicant’s version was clearly put to the complainant in cross-examination, and that was the setting in which the applicant gave evidence.  Neither side had any difficulty at trial in describing the other side’s case or evidence.  Given that the ultimate fact in issue (consent) was a simple one (and on one charge only), it could not be said that the jury were unable to understand the applicant to such an extent that his trial was unfair.  Accordingly, the respondent submitted that there is no merit in the applicant’s proposed ground of appeal.
	Consideration
57	The transcript of the trial reveals the significant difficulty the judge, counsel and the jury had in understanding some of the applicant’s evidence.  We have listened to a recording of parts of the applicant’s evidence.  While the recording discloses that he has a fairly thick accent, and is not fully fluent in all of his speech, he is able to be understood if one listens carefully.
58	Having regard to the applicant’s history, and his ability to answer questions in the record of interview without an interpreter, we accept the respondent’s submissions that there were good forensic reasons why the applicant’s counsel chose to have the applicant give his evidence at trial without the assistance of an interpreter.  Objectively, it was a rational forensic decision for the applicant’s trial counsel to make, that the downside of any difficulty there might be in the jury understanding individual answers given by the applicant in his evidence was outweighed by any impression the jury might have gained that, by using an interpreter, the applicant was giving himself more time to answer difficult questions and ‘hiding behind the interpreter’, or attempting to gain some tactical advantage.  In our view, this was not a case where the lack of an interpreter resulted in the applicant’s trial being unfair.
59	That said, the difficulties that the participants in the trial had in understanding parts of the applicant’s evidence were less than ideal.  It might have been preferable if the judge had considered invoking the power under s 335 of the Criminal Procedure Act 2009 and required the provision of a competent interpreter for use during the course of the applicant’s evidence.  We do not, however, conclude that her Honour erred in not so doing:  first, s 335 of the Criminal Procedure Act was not the subject of any submission made to the judge at trial;  and secondly, her Honour, having raised the issue with counsel for the applicant was, in the circumstances of this case, entitled to rely upon the applicant’s trial counsel’s statements made on more than one occasion that it was a forensic decision not to use an interpreter at trial.  In our view, the applicant was able at trial to give an effective account of the facts vital to his defence.
60	Notwithstanding the applicant’s less than ideal ability to communicate clearly and with precision at trial, in our view the lack of an interpreter at trial did not occasion any miscarriage of justice.  The efforts of the judge and trial counsel ensured that, notwithstanding the applicant’s language difficulties, his version of events, and necessary explanations which he gave for his conduct, were ultimately conveyed to the jury.
61	While we will not uphold proposed ground 1, the ground is, however, sufficiently arguable to justify a grant of leave in respect of it.  Further, the issues raised in ground 1 in relation to the applicant’s language difficulties are not entirely discrete from the issues raised under proposed ground 2.  We will also say more about the issues raised by ground 1 when we consider proposed ground 4, in which it is contended that there was an aggregation of errors.
Proposed ground 2:  the applicant’s prior consistent statements
62	Proposed ground 2 arises in part out of a suggestion made at trial that the applicant had changed his account of events when he found out that DNA testing had revealed the presence of his sperm in the complainant’s vagina.  The issue about whether the applicant had changed his version surfaced when the prosecutor, in cross-examination, raised with the applicant the DNA evidence that had been given the previous day.  As we have already noted, the applicant responded by saying that he was telling the truth and that he was really not sure whether the condom had been properly applied or whether it broke.  The prosecutor then said:
What you’re telling the Court is that you’re not giving this evidence because of what you heard yesterday by the forensic officer?
This question was objected to on the basis that that was not what the applicant said.  The judge agreed, and the prosecutor did not take the issue any further at that stage.  
63	However, the issue developed from that point and, during the course of the judge’s charge to the jury, the judge characterised part of the prosecution case in the following terms:
[The applicant] has been shown to lie to police [the prosecutor] said, indeed he admits lying to police.  Given that his DNA was found in her vagina, he then moved his answers from the fact that he did not [know the complainant], did not recognise her, never had sex with her, to his admissions in evidence to sex.
64	During the course of the trial, the applicant’s trial counsel made various submissions to the judge that he be permitted to lead evidence from the applicant and BW and CW about statements the applicant made to them, shortly after the record of interview, which were consistent with the evidence given by the applicant at trial.  During parts of the discussion between the applicant’s counsel and the judge, counsel relied upon s 66 of the Evidence Act 2008 as a basis for admissibility.  During other parts of the discussion, he relied upon s 108 of the Evidence Act as the basis for admissibility.
65	Ultimately, the judge granted the applicant’s application under s 108 of the Evidence Act confined, at that stage, to the evidence from the applicant.  Having regard to the evidence tendered in this Court (which we will come to shortly) and the submissions of the parties, it is necessary to set out the judge’s ruling (‘the Ruling’) in full as follows:
Application has been made under s 108, effectively on an anticipatory basis as we are now in the course of cross-examination of the accused, for counsel for the accused to be permitted to re-examine the accused in relation to a purported prior consistent statement made at the midway point in the chronology between date of alleged offending in January 2016, date of police interview containing prior inconsistent statements which are further relied upon by the prosecution as incriminating conduct which use, as I understand it, is conceded by the accused.  Followed in fairly close proximity to what is relied upon as a prior consistent statement, i.e. that the accused after falsely claiming that he did not know the complainant and that he did not sexually penetrate the complainant was then followed by a revelation of ‘the truth’ to two close associates who are expected to be relied upon to give character evidence in the accused case. 
I have heard argument and I am assisted by the position taken by each party.  The accused relies on s 108 of the Evidence Act.  Specifically, the indication that the credibility rule does not apply to evidence adduced in re-examination of a witness where, in the specific circumstances of this case, s 108(3)(a), a prior inconsistent statement of the witness has been admitted and counsel wishes to rely upon a prior consistent statement of a witness.  My leave is required in order to do so. 
Counsel for the prosecution has submitted that I should carefully evaluate whether there is a so-called prior consistent statement and, in particular, I ought not to grant leave under s 192 of the Evidence Act, having regard to the fact that the so-called prior consistent statement occurred at a time when the accused was fully appraised of the prosecution case and in circumstances in which the accused now admits that he had falsely told police an inconsistent account with both the consistent statement and his oral evidence.  
It is submitted at its heart by the prosecution under 192(2)(b), for instance, that it would be unfair to the prosecution to allow that prior consistent statement to be adduced, given the dubious nature of it occurring at a midway/late stage of the process.  My attention was drawn in the course of oral argument to the limits on re-examination indicated by s 39.  
In all of the circumstances of the case and having read and considered the case of Constantinou v R [2015] VSCA 177, I understand that 108 does apply given that we have the accused giving evidence on his own behalf.  In all of the circumstances, I am prepared to conclude that evidence of a prior inconsistent statement of the witness has been admitted as part of the prosecution case, but it has also been clearly identified and is likely to be the subject of forensic use by both the defence and the prosecution, given that the accused has already given a narrative in his evidence-in-chief and has been asked some questions in cross-examination about these prior inconsistent statements. 
In all of the circumstances of the case, and particularly in order to allow the defence to rely upon a consistent statement made, though late, prior to giving his evidence in court, I am going to grant leave to allow, under 108, evidence to be adduced in re-examination of what he had told the Wards immediately following the police station.  
I note, and this does not form my reasons for decision, that an account has been given by the accused in voir dire yesterday under oath of what was said to [BW and CW] and there may be questions, further questions which might need to be asked if there was an application to reopen cross-examination.  I make no pre-judgment in relation to whether such an application would be permitted.  We will see how the evidence falls, and I rule.  
66	In the event, trial counsel for the applicant did not adduce any evidence of prior consistent statements made by the applicant, either in re-examination of the applicant, or from BW or CW.  However, from evidence tendered in this Court on this application, it is plain that the applicant’s trial counsel could have led such evidence.  
	Evidence tendered in this Court
67	In this Court, the applicant relied upon an affidavit sworn by BW on 4 September 2020;  an affidavit sworn by CW on 4 September 2020;  and an affidavit affirmed by his trial counsel on 19 August 2020.  
68	BW deposed that she is a retired senior legal officer.  After completing an LLB, she completed a post-graduate diploma in criminology, and later an LLM.  She was admitted to practice as a lawyer in 1981 and held various positions as a legal officer, including a position at the Office of Public Prosecutions.  Prior to retiring, she worked for 20 years at the Department of Justice as a senior legal officer.  
69	BW deposed to speaking to the applicant within a few days after he was interviewed by police.  The applicant attended her home, following a conversation between CW and the applicant.  BW told the applicant that it was very important that he write down his version of events.  Some days later, the applicant came back to their home and BW sat down with him to take a note of his version of events.  While taking down the applicant’s statement (which BW exhibited to her affidavit), the applicant told her that ‘he had sex with a young woman however had told the police that he did not know her’.  In her affidavit, BW said that, at that stage, the applicant had not been charged or had his DNA taken.  
70	CW is a retired teacher.  In his affidavit, CW deposed that the applicant rang him and told him that he had been at a party a while ago, and there had been sexual contact with a woman.  The applicant told him that this had been consensual, but that the woman had contacted police and he had been interviewed.  
71	CW deposed to the applicant visiting his home.  In his affidavit, CW said:
He told us there had been a group of them who had been to Fitzroy.  They had travelled to get some alcohol, and the woman in question was sitting in the back seat of the car.  He told us he had met this woman a couple of times before and she had been very warm towards him.
[The applicant] told us that the group went back to his flat and continued to drink before [he] excused himself and went to bed.  He stated that the woman came into his room and wanted to have sex.  He stated he was open to that and I think he said she got protection for them to use.
[The applicant] said that they had sexual intercourse and that she stayed in the bed until the morning.  When they got up in the morning, they had breakfast and [AJ] was there also.  [The applicant] said that she asked him for some money and she claimed that he had promised her some money last night for a taxi.  [The applicant] disputed this with her and said he didn’t have any money on him.  I believe [the applicant] said there was a physical interaction where she hit him and accused him of taking advantage of her.
72	The applicant’s trial counsel provided a four paragraph affidavit which it is necessary to set out in full as follows:
I have read the written case for [the applicant’s] appeal and take no issue with its contents.  
In respect of the second ground of appeal I would agree — for my part — with the description of process as confused or disconnected.  
In particular as it related to the application and ruling in respect of s 108 of the Evidence Act 2008.  At the time of the trial I misunderstood the judge’s ruling and approach to this issue.  I genuinely believed that the judge had confined her ruling pursuant to s 108 strictly to matters of cross-examination.  That is, I could only re-examine [the applicant] on what he had told others if the prosecutor put to him that he had recently invented his story.  
I cannot provide sufficient explanation as to why I did not pursue further the matter to clarify it.  The fault lies with me.  I apologise for the error.
	Parties’ contentions
73	In his written case in this Court, the applicant set out in some detail the development of the application made at trial to lead evidence from the applicant, BW and CW about what the applicant told BW and CW in the days following his record of interview.  The applicant submitted that as the issue developed and ‘ultimately miscarried’ there was ‘significant confusion and disconnection’ between the applicant’s trial counsel and the judge.  The applicant contended that there was confusion about the need for a voir dire, and what that voir dire might entail, to see whether s 66 of the Evidence Act was enlivened.  
74	As the issue progressed, s 108 of the Evidence Act was raised.  Later, as the applicant put it, ‘the s 66 issue resurfaced’.  Still later, the judge (according to the applicant) ‘appeared to steer the applicant’s counsel towards the s 108 pathway’.  The applicant submitted that there was then ‘another disconnection as between the applicant’s counsel and the judge’ in relation to what ‘the s 108 pathway would involve’.
75	Having identified what he described as a significant number of disconnections, the applicant submitted that, ‘in perhaps the most significant disconnection of all’, the applicant’s counsel did not engage in the re-examination that the judge had ruled could be conducted.  In those circumstances, the issue of the admissibility of the evidence of BW and CW as to the applicant’s prior representations fell away.
76	The applicant submitted that the result of his trial counsel not leading the evidence of what the applicant told BW and CW shortly after his record of interview was that the jury would have understood from the judge’s charge that the prosecution contended that the applicant only came up with his version about consensual sex after he became aware of the DNA evidence.  That very significant assertion would have been, but was not, rebutted by the applicant, BW and CW giving evidence of the conversations referred to in the affidavits of BW and CW.  
77	The applicant contended that as a result of ‘this confusion and series of disconnections, the applicant was left in a very unfair position’.  The applicant submitted that, in all of the circumstances, a miscarriage of justice had occurred, ‘with the applicant’s trial ultimately being conducted on an unfair and potentially false basis’.
78	In answer to the applicant’s submissions, the respondent submitted that the ‘prior consistent version was not before the jury because counsel chose not to lead it’.  The respondent submitted there was nothing in the judge’s ruling which suggested that the leave granted by her Honour was based on recent invention being put to the applicant, ‘so it is difficult to see how counsel could have been left with this impression’.  The affidavit of the applicant’s trial counsel was submitted to be brief and one which ‘cannot provide a satisfactory explanation why [the applicant’s counsel] did not as foreshadowed, under s 66 of the Evidence Act, seek to ask questions on the topic from [BW and CW]’.
79	The respondent contended that there was a rational forensic reason for the applicant’s trial counsel not to lead evidence of the applicant’s prior consistent statements.  In making that submission, the respondent identified five relevant matters:
(1)	There were dangers that the jury might have thought that the account of BW and CW ‘was fabricated after learning from the police details of the complainant’s allegations plus the fact that they had requested [the applicant’s] DNA — which he declined to give’.
(2)	Having ‘reflected on his numerous lies to police, that the applicant must have realised the police could easily disprove’, the applicant ‘hoped to salvage something of a defence’ to the complainant’s allegations.
(3)	The applicant’s counsel may have felt that the applicant ‘had not equipped himself well as a witness in cross-examination and decided to minimise any damage’.
(4)	If the jury had taken a negative view of the applicant’s credit (which was open to them), to have told trusted friends a similar false story might have ‘compounded an impression that he was a persistent liar’.  
(5)	Given that the applicant was relying on good character, he may have wanted to quarantine the character witnesses (BW and CW) from the issues in the trial, ‘thus presenting them as unbiased except as to the testimony about his good reputation’.
80	The respondent contended that there was a further potential hazard for the applicant in any inconsistency that might be identified between what the applicant said he told BW and CW, and what each of those two witnesses might say in evidence.
81	The respondent contended that even if the prior statements had been led in evidence, they would not have overcome the suggestion of recent invention.  As to the assertion that the prior statements would have rehabilitated the applicant’s credit, the respondent submitted to the contrary — noting the existence of the complainant’s Facebook message which said, ‘… lie all you want the police have your DNA dumbass they swab tested me that day you decided to put your disgusting dick in me when I was passed out drunk asleep’.
82	The respondent submitted that, as there were rational forensic reasons why the ‘prior consistent statements’ were not led, leave to appeal on this ground should be refused.
83	In order to give context to the parties’ submissions under this proposed ground of appeal, it is necessary to describe further the circumstances in which the issue of the admissibility of the applicant’s prior statements arose at trial.
The issue of the applicant’s prior statements as it arose at trial
84	The issue of the admissibility of prior statements made by the applicant was first raised specifically during the evidence of the last prosecution witness (DSC Owen).  During a break in DSC Owen’s evidence, the applicant’s trial counsel foreshadowed making an application in relation to s 66 of the Evidence Act.  Counsel said that, pursuant to s 66, he wished to lead evidence from witnesses ‘as to representations made by [the applicant]’.  Section 66 of the Evidence Act relevantly provided:
66	Exception—criminal proceedings if maker available
(1)	This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)	The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if—
(a)	the person who made the representation has been or is to be called to give evidence;  and
(b)	either—
(i)	when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation;  or
(ii)	…
(2A)	In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a)	the nature of the event concerned;  and
(b)	the age and health of the person;  and
(c)	the period of time between the occurrence of the asserted fact and the making of the representation. 
85	The judge expressed the view that there was no reason in principle why the applicant could not rely on s 66, provided that the representations made by the applicant were made when the asserted facts were fresh in his memory.  Counsel for the applicant then told the judge that the prosecutor sought to have a voir dire conducted in relation to each witness relevant to the issue, so as to determine whether s 66 was enlivened.  The judge said that she thought that this was probably ‘the most conservative and prudent way to go’.
86	After the close of the prosecution case, there was further discussion between counsel and the judge about s 66.  There was discussion about what evidence was required to be led on any voir dire as to the admissibility of the applicant’s prior statements.  Counsel for the applicant submitted to her Honour that evidence needed to be led about the issue of whether the asserted facts were fresh in the applicant’s memory.
87	Following this discussion, a voir dire was held in relation to the applicant’s evidence.  During the course of the voir dire, counsel for the applicant did not adduce the content of the representations that it was sought to admit under s 66 of the Evidence Act.  While the applicant described a general account of the events of 25/26 June 2016 which he said that he gave to BW and CW, that account did not include any reference to sexual activity between the applicant and the complainant.
88	After the voir dire, the judge expressed the view that, contrary to submissions that had been made by the applicant, there should be evidence of the content of the representations sought to be admitted.  At that stage, the applicant’s trial counsel indicated that he would withdraw his application under s 66.  The applicant’s counsel, however, reserved his position with respect to s 108 of the Evidence Act.  That section relevantly provided:
108	Exception—re-establishing credibility
(1)	The credibility rule does not apply to evidence adduced in re-examination of a witness.
(3)	The credibility rule does not apply to evidence of a prior consistent statement of a witness if—
(a)	evidence of a prior inconsistent statement of the witness has been admitted;  or
(b)	it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion—
and the court gives leave to adduce the evidence of the prior consistent statement.
89	After the withdrawal of the s 66 application, the applicant commenced to give his evidence before the jury.  In the course of his evidence-in-chief, the applicant admitted that he lied to police in his record of interview.  He said, however, that after he left the police station, he told the truth to other people.  During a break in the applicant’s evidence-in-chief, his counsel sought to raise the previously abandoned s 66 application.
90	It is not necessary to summarise all of the debate that then followed, other than to say that the judge appeared to be resistant to the application of s 66 given that there was no evidence of the content of the prior representations made by the applicant.  The judge said that she did not ‘have an evidentiary basis for s 66’.  She said, however, that s 108 would be enlivened if an allegation of recent invention was made.  The judge said that, in those circumstances, the applicant could ‘go down the 108 path in re-examination’.  The applicant’s counsel said that he would take that course, and the judge responded by saying ‘But you’re not shut out’.  
91	There was then further discussion about s 108 of the Evidence Act and its application.  During the course of this discussion, the judge appeared to make it clear that if s 108 was engaged then the evidence to be adduced would be evidence from the applicant in re-examination.  The judge specifically said that there would not be evidence from BW or CW ‘on this application’.  Later, her Honour clarified this by saying that, while the applicant might be permitted to give evidence in re-examination about what he told BW and CW, the applicant would not be permitted (as matters stood) to lead that evidence from BW and CW.
92	Counsel for the applicant told the judge that he might not take advantage of a ruling permitting him to call the evidence only from the applicant, if he was not also permitted to adduce the evidence from BW and CW.  A little later in the argument, the judge referred to the s 108 application as the only application she had heard, the applicant’s trial counsel having withdrawn the s 66 application.  The judge then said:
[The accused’s counsel is] keeping his powder dry in relation to that after I gave an indication that I’m not sure that I can see a clean legislative path to so-called re-examining [BW and CW] in relation to a matter not raised in examination in chief or apparently allowed to be raised.
A little later, her Honour then said:
At this point I have experienced difficulty in the procedure, the facts and the law in relation to this.  Even though there's a fragmentation, I’ve expected a full contest under s 66 yesterday and it was not to be because of the evidence that we heard.  Now, I have an application under 108 and I understand the point that you make.  But in my view, I’d be luring myself into appealable error by shutting out an available mechanism for trying to pull together the tatters of credibility after admitted lies to police.  That’s not good for an accused defence.  But the problem is [BW and CW].  Now, let's say, for instance, that even after yesterday, which was supposedly a fulsome account, the accused gives evidence in re-examination, I told [BW and CW] this, I told [BW and CW] that;  sexual penetration, ejaculation, blah, blah, blah, blah, blah.  Now, this is the first that we've heard of that.
…
That puts us in a very difficult predicament under s 66.  The transcript is replete to [the accused’s counsel’s] references to this not being a tactical course.  We’ll let the circumstances speak for themselves.  I haven’t heard that application yet, so I can’t prejudge it.  The problem is I think we might be back in s 66 territory after that.  
93	Shortly thereafter, the judge delivered the Ruling, permitting the applicant to adduce evidence of the applicant’s prior representations in re-examination.  As we have already noted, however, the applicant’s trial counsel did not avail himself of that opportunity.
	Consideration
94	The applicant must succeed on proposed ground 2.  While the prosecutor may not have explicitly contended at trial that the applicant changed his evidence once he found out that forensic testing had discovered the presence of his sperm in the complainant’s vagina, every participant in the trial would have understood that that contention was a live issue so far as the prosecution case was concerned.  Thus, as we have already noted, the judge directed the jury that an aspect of the prosecution case was that the discovery of the applicant’s DNA in the complainant’s vagina ‘move[d] his answers from the fact that he did not [know the complainant], did not recognise her, never had sex with her, to his admissions in evidence [of having sex with her]’.
95	The applicant’s evidence of what he told BW and CW shortly after the record of interview, and before he knew of the results of any DNA testing, was capable of answering this aspect of the prosecution case.  There could be no doubt that when the applicant spoke to BW and CW, what he said to police in the record of interview was ‘fresh in [his] memory’.  Having regard to the circumstances of what occurred on 25 and 26 January 2016, we think that similarly there could be little doubt that, insofar as the applicant was recounting what occurred at that time, when he spoke to BW and CW, those events were also fresh in his memory.  The interaction between the applicant and the complainant on 26 January 2016 could hardly be described as ‘mundane’, or of such a nature that by reason of the elapse of time the occurrence of that interaction was not fresh in the applicant’s memory.
96	The evidence which the applicant’s trial counsel sought to adduce from his client and BW and CW, as to what the applicant told BW and CW shortly after the record of interview, was admissible under both s 66 and s 108 of the Evidence Act.  Moreover, while a voir dire is sometimes useful to determine the scope of the evidence to be led and its admissibility, we do not think that, in the circumstances of this case, any voir dire was necessary in respect of either s 66 or s 108.
97	In relation to s 66, the only issue that might have been explored on a voir dire was the freshness of the applicant’s memory.  However, as we have already said, there could be little doubt that the applicant’s memory of the relevant events was fresh within the meaning of s 66.  
98	In relation to s 108, the applicant’s evidence in cross-examination, which gave rise to the issue of whether he had changed his account to fit with the DNA evidence, was sufficient to engage s 108 without the need for the applicant to give evidence on a voir dire of the precise statements he made to BW and CW.  
99	Additionally, to the extent that it was suggested at trial that the evidence of the applicant’s prior representations to BW and CW (either given by the applicant, on the one hand, or by BW or CW on the other hand) had to be given in the re-examination of the relevant witness, that suggestion was incorrect.  The applicant was entitled to give the evidence of his prior statements pursuant to s 66 of the Evidence Act in his evidence-in-chief.  Similarly, the evidence of BW and CW in relation to these matters was admissible in each of their evidence-in-chief.
100	Evidence which was potentially very relevant to the suggestion that the applicant changed his account after he became aware of the DNA evidence (and which also had the potential to counteract the effect of the lies the applicant told police, and which were inconsistent with his evidence) was not led by the applicant’s trial counsel because he misunderstood the trial judge’s ruling that permitted him to lead that evidence in the re-examination of the applicant.  The difficulty for the applicant’s trial counsel was, however, that the judge never ruled that he could also lead the relevant evidence from BW and CW.  To that extent, it is understandable why the applicant’s trial counsel might not have led the relevant evidence from the applicant in re-examination, if he could not be assured that he would be allowed to also lead it from BW and/or CW.  At the very least, if the evidence was only led from the applicant then it would have been unlikely to have assisted him.  At worst, if the evidence was led from the applicant and not also led from BW and/or CW, the jury might have formed the view that it was not led from them because it was untrue.
101	In the end, we accept the submission made by senior counsel for the applicant in this Court, that what occurred at trial involved a series of misunderstandings and disconnections between the judge and the applicant’s trial counsel, and that these misunderstandings and disconnections led to relevant (and potentially highly significant) evidence not being adduced in the course of the defence case as it should have been.  
102	Moreover, contrary to the respondent’s submissions in this Court, we are not persuaded that there was any rational forensic basis upon which the applicant’s trial counsel could have decided not to adduce the evidence to which we have referred.  Even if one accepted that there were risks associated with leading that evidence, those risks were insignificant compared to the risk of leaving almost wholly unanswered the suggestion that the applicant had, in addition to lying to police, lied to the jury, and changed his evidence so as to explain the DNA findings led as part of the Crown case.
103	It follows from what we have said above that leave to appeal must be granted, and the appeal allowed, on ground 2.
Proposed ground 3:  the allegation of ‘extreme collusion’ between the applicant and AJ
104	Proposed ground 3 concerns an aspect of the prosecutor’s final address.  In his final address, the prosecutor suggested that there had been collusion between the applicant and AJ in the giving of their evidence.  The prosecutor said:
Turning to [AJ], you've heard that he's a friend of the accused.  You’ve heard that he's related to him, that he went through many of the same trials and tribulations as the accused in getting out of Africa and coming to Australia, that he's been the flatmate of the accused for a couple of years before the offending, and since, right up until he gave his evidence.  The way he gave his evidence, I’d submit, and their relationship, is one where this gentleman was so closely enmeshed with the accused that his evidence has to be looked at very, very carefully before you would accept any part of it.
And in my submission to you, when you do so, you would quite comfortably, I would submit, come to the conclusion that you couldn't rely on the evidence that he has given to you.  And indeed, if we are in another place, then the evidence that he gave to you would probably carry the term ‘plagiarism’, because in your experience, and truly this is the reason why you’re here, the 12 of you, in your experience have you ever come across a situation where two people would tell exactly the same version of events almost line for line about something that occurred almost four years ago?
Bearing in mind, remarkably you might think, remarkably, that [AJ] says that he has been living most — apart from some short periods of time away, with the accused from 26 January 2016 right up until the morning of when he gave his evidence to you.  And at no time, at no time on his evidence to you, did he say that they had discussed what happened on 26 January between them.  And you might think that that is just against human nature, against human experience.
Remember that [AJ] was aware, he was aware that the accused was facing a very, very serious charge of rape, because you remember in his evidence he said that he was in the flat when the police came around, after they had interviewed the accused, and he overheard what they were saying.  So he was aware from that date, at the very least, if he wasn't aware beforehand, that his relative, his friend, his flatmate, was facing this most serious charge.
And would you not expect it would be human nature for him, at the very least, to speak with the accused about it?  But no.  And indeed, there was an opportunity for him to put up his hand, to assist police, but that didn’t happen either.  
In my submission, it's just not possible for him to have carried on in the way that he said he did, in other words completely divorced from the person that he has such a relationship with that the very first time that he has mentioned, in the presence of the accused, what he saw and what he heard, was when he gave his evidence in the witness box before you.  Does that smack of reality?
And when you put that with the fact that what he said before you was almost word for word what the accused had said just the day previously, then ladies and gentlemen, you might well think that there was extreme collusion between these two, to make sure that they had their version straight as to what happened.
The handbag is a good example of that.  How do you think someone who was in a room four years ago;  had a clear recollection of a woman going into a bedroom then coming out and collecting a handbag, something that was very important to the accused, of course, because that’s where the condoms were, but truly, is that something you'd expect a person who really hadn't turned their mind to it, hadn’t had any discussion with the accused, would just bring out unless they were actually colluding with one another in relation to what evidence they would provide?
Parties’ contentions
105	The applicant contended that there was no proper foundation for the prosecutor’s ‘serious accusation’ of collusion.  In support of that contention, the applicant made the following overlapping submissions:
(1)	The accusation of collusion was never put to the applicant in cross-examination.  The applicant submitted that this was a fundamental impediment to the prosecutor making his accusation of collusion.  In support of that submission, the applicant relied upon this Court’s decision in Rees v Bailey Aluminium Products Pty Ltd.
(2)	The one question that was directly put to AJ about the issue of collusion was denied by him, ‘[t]he result being that there was no direct evidence of “extreme collusion” or indeed any collusion’.
(3)	The evidence of a very close association between the applicant and AJ, the fact that their respective versions of events were the same, and the fact that their evidence was in conflict with the complainant’s evidence, could not provide the necessary foundation for an allegation of collusion without the prosecutor giving the applicant the opportunity to respond to that allegation.
106	The respondent contended that the passage sought to be impugned in the prosecutor’s address was not productive of any miscarriage of justice.  In support of that contention, the respondent observed that the applicant’s trial counsel took no exception to what the prosecutor said.  Nor did he seek any directions from the judge about the matter.
107	The respondent also contended that the prosecutor was entitled to make the submission he made.  The necessary groundwork had been laid in the cross-examination of AJ.  It was contended that the prosecutor made proper submissions to the jury about, and having regard to, the level of detail in AJ’s evidence, given some four years after the event.  Further, the prosecutor put the allegation of collusion to AJ.  It was submitted that the prosecutor could not have put this allegation to the applicant as the prosecutor had no warning that AJ would give evidence (the applicant’s trial counsel not having opened that AJ would be called as part of the defence case).
Consideration
108	In view of our conclusion in respect of ground 2, we can express our views on proposed ground 3 briefly.  In our view, the assertion of ‘extreme collusion’ made by the prosecutor in his final address should not have been made without the prosecutor at least seeking to have the applicant recalled in order that that suggestion could be made to him in further cross-examination.  Additionally, we would observe that the allegation of collusion put to AJ in cross-examination by the prosecutor was not put with the sort of strength that might have justified the force with which the assertion was put in final address.  
109	That said, no objection was taken at trial by the applicant’s counsel and, in the circumstances, we would not grant the applicant leave to appeal on this ground.
Proposed ground 4:  an aggregation of errors
110	In proposed ground 4, the applicant asserts that as a result of the errors identified in his earlier grounds of appeal, a substantial miscarriage of justice occurred.  We have concluded that ground 2 has been made out, but that grounds 1 and 3 have not been made out.  It is not necessary to say anything further about proposed ground 4, other than that the difficulties associated with understanding the applicant’s evidence (referred to in our discussion of ground 1) fortify us in our conclusion that there was a substantial miscarriage of justice when, for whatever reasons, the evidence of the applicant’s statements to BW and CW was not led from the applicant, BW and CW.
Conclusion
111	Leave to appeal will be granted on grounds 1 and 2.  The appeal will be allowed on ground 2.  We will order a retrial.
112	For completeness, we should say that, having regard to what we have said in relation to ground 1, at the retrial of the applicant, we would expect that serious consideration would be given to the use of an interpreter to assist the applicant in giving his evidence, should the applicant’s evidence (for whatever reason) become difficult to understand.

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