Asare (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0081

OMAR ASARE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the risk of identifying the alleged victim of a sexual offence, these reasons for judgment have been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, BEACH AND WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2025
DATE OF JUDGMENT:	9 September 2025
DATE OF REASONS:	17 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 222
JUDGMENT APPEALED FROM:	[2024] VCC 300 (Judge Tiwana)

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CRIMINAL LAW – Appeal – Substantial miscarriage of justice – Prosecution’s pre-trial disclosure obligations – Where applicant found guilty of sexual offending against child –Where complainant’s mother gave evidence as witness for the prosecution – Where witness’s credibility a key issue at trial – Prosecution failed to disclose witness’s previous complaints to police regarding the applicant – Material indicated witness previously made false criminal allegations against applicant – Where undisclosed material would have been admissible as credibility evidence – Where applicant denied the opportunity to impugn witness’s credit by reference to undisclosed material – Leave to appeal allowed – Appeal allowed and retrial ordered.

Criminal Procedure Act 2009, s 276(1)(b); Evidence Act 2008, ss 102, 103, 106.

Roberts v The Queen [2020] VSCA 277; Mallard v The Queen [2005] HCA 68; Cannon v Tahche [2002] VSCA 84; Nguyen v The Queen [2020] HCA 23; AJ v The Queen [2011] VSCA 215; Brawn v The King [2025] HCA 20, applied.

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Counsel
Applicant:		Ms C A Boston SC with Mr W Barker
Respondent:		Ms D I Piekusis KC with Ms E Allan
Solicitors
Applicant:	MCD Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
WALKER JA:

On 2 June 2023, following a 10-day jury trial in the County Court, the applicant was found guilty of one charge of sexual penetration of a stepchild,[2] seven charges of sexual assault of a child under the age of 16,[3] and one charge of sexual activity in the presence of a child under the age of 16.[4] The jury was unable to reach a verdict in respect of two further charges of sexual assault of a child under the age of 16. Those charges were later discontinued by the Director of Public Prosecutions.
[2]Contrary to s 50D(1) of the Crimes Act 1958.
[3]Contrary to s 49D of the Crimes Act 1958.
[4]Contrary to s 49F of the Crimes Act 1958.
On 22 March 2024, the applicant was sentenced to a total effective sentence of nine years’ imprisonment with a non-parole period of five years and six months.
The applicant sought leave to appeal against his convictions on five proposed grounds.[5]
[5]For convenience we will refer to the proposed grounds of appeal simply as grounds.
Ground 1:
The convictions are unreasonable or cannot be supported having regard to the evidence.
Ground 2:
A substantial miscarriage of justice has been occasioned by [defence] counsel’s conduct of the trial…
Ground 3:
A substantial miscarriage of justice has resulted from [certain conduct of] the Crown …
Ground 4:
A combination of defects occasioned a substantial miscarriage of justice.
Ground 5:^[[6]]
A substantial miscarriage of justice has occurred due to Victoria Police not disclosing materials prior to the applicant’s trial …
[6]Ground 5 was the subject of an application for leave to amend the notice of appeal. The respondent did not oppose that application.
At the hearing of the appeal, the respondent, quite properly, conceded that ground 5 must succeed; and the applicant abandoned ground 1.
In light of the respondent’s concession and our own consideration of the matters raised by ground 5, we made orders granting leave to appeal and allowing the appeal on the day of the hearing. These are our reasons for making those orders.

The evidence at trial

Background

The complainant was born in March 2010. Her mother was MA. In 2015 MA moved from Ghana to Perth. She left the complainant with family or friends in Ghana.
In February 2016 MA met the applicant at a shopping centre in Perth. At that time the applicant was 18 years old. MA and the applicant were married in September 2016. They moved to Melbourne in around January 2017. In June 2017 MA gave birth to their daughter, SA. In January 2019 MA resumed her work in Perth, on a ‘fly in fly out’ basis. This meant that she was working in Perth for several weeks at a time, during which time the complainant and SA would stay with the applicant in Melbourne.
In April 2019 the complainant (then aged nine) migrated to Australia from Ghana. She moved in with MA, the applicant and SA at their rental home in Tarneit.
On 2 November 2019 MA’s friend BO came to Australia from Ghana. He too moved in with the family in Tarneit. BO helped the applicant care for the girls when MA was working in Perth.
In January 2020 the applicant, MA, the complainant and SA moved to a home in Brookfield which was jointly owned by the applicant and MA. BO also moved into the Brookfield home sometime thereafter.

The complainant’s evidence of the offending

The complainant’s evidence was taken by a video and audio recording of evidence (‘VARE’) recorded on 6 November 2020, and at a special hearing recorded on 24 August 2022.
The complainant gave evidence that the applicant sexually assaulted her regularly. She identified four specific incidents. She said that, at the time of each incident save for incident 4, MA was working in Western Australia. At the time of each incident the complainant was aged nine or 10 and the applicant was aged 21 or 22.
The complainant gave multiple accounts of each incident both in the VARE and in the course of the special hearing. We have set out below a summary of the gist of her evidence for each incident.
Incident 1: the ‘Madagascar movie incident’ (charges 1–5)
Incident 1 was said to have occurred in the Tarneit house, between 1 April 2019 and 16 January 2020. The complainant said that the applicant called the complainant into his bedroom — or perhaps her bedroom[7] — to watch the movie ‘Madagascar’ in bed, together with SA. When SA fell asleep, the applicant turned off the television, and removed his and the complainant’s clothes. He pulled her onto him, placed his hands on her waist, and pushed her backwards and forwards, as his penis touched the outside of her vagina. This was the conduct said to constitute charge 1.
[7]In the VARE the complainant gave two different accounts of which bedroom was involved.
He then rubbed the outside of her vagina, ‘squishing’ it; this was the conduct said to constitute charge 2. He also placed his mouth on her breast and ‘squished’ it; this was the conduct said to constitute charge 3. The complainant said that she wanted to go to the toilet. The applicant followed her to the toilet and waited at the door. He then pushed her back onto the bed. He rubbed the outside of her vagina; this was the conduct said to constitute charge 4.
The complainant said that the applicant then placed her on top of him. His penis went ‘inside’ her vagina ‘a little’. This was the conduct said to constitute charge 5. The applicant contended there is some ambiguity regarding this evidence, which is addressed below.
The jury convicted the applicant on charges 1–5.
Incident 2: the ‘iPad incident’ (charges 6–8)
Incident 2 is also alleged to have occurred in the Tarneit house, on a different occasion. The complainant spoke to friends on her iPad and then showered with her sister. The applicant told her to come and cuddle. He was at one end of his bed, and SA was sleeping at the other end. The applicant took the complainant’s hand and pushed her on top of him. He removed their clothes. He rubbed the outside of her vagina. This was the conduct said to constitute charge 7. At the same time he was rubbing his penis with his other hand; this was the conduct said to constitute charge 6. He then kissed and sucked the complainant’s vagina; this was the conduct said to constitute charge 8.
The complainant said that SA was about to wake up, so the applicant told the complainant to ‘get off’. In one account of this alleged incident, the complainant recounted that she had been starved and neglected after the alleged offending, and that she had reported these matters (including the sexual offending) to MA in anger that day.
The jury convicted the applicant on charges 6–8.
Incident 3: the ‘next morning incident’ (charge 9)
Incident 3 was said to have occurred the morning after incident 2, at the Tarneit house. When the complainant woke up in her own room that day, the applicant was sleeping next to her. They were in the lower bunk bed. She tried to move to the upper bunk, but he woke up and asked to cuddle. He put her on top of him, and removed both of their clothes. He started touching her body, and rubbed the outside of her vagina; this was the conduct said to constitute charge 9. The complainant removed the applicant’s hand; he became angry, put his clothes back on and left the room.
The jury convicted the applicant on charge 9.
Incident 4: the ‘wardrobe incident’ (charges 10 and 11)
Incident 4 was said to have occurred in the Brookfield house. The applicant entered the complainant’s bedroom and took their clothes off. He rubbed her breast, rubbed the outside of her vagina; this was the conduct said to constitute charge 10. He also ‘squished’ her breast with his mouth; this was the conduct said to constitute charge 11.
The complainant said that MA ‘started coming’, so the applicant hid in the wardrobe in the complainant’s bedroom. MA saw her with no top on. The complainant told MA that the applicant was in the wardrobe. MA didn’t say anything because she already knew everything. MA opened the wardrobe, and the applicant said he was hiding from her. He then cooked breakfast for everyone, including BO. The complainant told MA that the applicant came in when she was sleeping and started doing everything again, however MA pretended she didn’t know anything.
MA did not give any evidence about this incident.
The jury was unable to reach a verdict on charges 10 and 11.

Complaint evidence

Two witnesses gave evidence that the complainant told them about the applicant’s conduct towards her: MA and BO.
MA gave evidence that, on a date before November 2019, a few months before the family moved to Brookfield (which occurred in January 2020), she was away in Perth for work and she called the applicant to check on the children. She heard the complainant crying in the background, and asked what was going on. The applicant said that the complainant was being naughty, and that he would sort it out.
MA then called the complainant on the complainant’s phone. The complainant said that she and the applicant were arguing about a television remote, and that the applicant was ‘just up and doing some stuff to her, she’s not happy about it, and she’s sick and tired of it’. The complainant said that whenever they were at home the applicant would ask her to cuddle and watch movies; that he would put SA to bed, undress himself and ask her to undress herself. He would put her on top of him and rub her thing. She told MA that it had happened ‘a lot of times’, in both bedrooms.
MA gave evidence that, after this conversation, she started to call the complainant every day and ask whether he did it again; sometimes the complainant would say ‘yes’, and sometimes ‘no’. MA testified that the applicant ‘will ask [the complainant] to undress herself and he will undress himself and he will put [the complainant] on top of him…he will rub hand on his…genitals. And he will kiss her. And…suck her boobs. And touch her…genitals…Whilst he touch his own sometimes’. These conversations occurred when the family was living in Tarneit and when the family was living in Brookfield.
BO gave evidence that, on an unknown date between 2 November 2019 and January 2020, in the Tarneit house, the complainant told him that the applicant cuddled her and then touched her breasts, and told her not to tell anybody. BO doubted that she was telling the truth. In around January 2020, in the Brookfield house, the complainant told BO that it happened again. She said that, that morning, her father came to her room, touched her breasts, pulled down his pants, and ‘brushed, kind of tried to penetrate her’ with his ‘manhood’.
In March 2020, on one of her return visits to Melbourne, MA ended the relationship with the applicant. She stayed for a week and then moved to Perth with the two children.

Evidence of alleged admissions

Three witnesses gave evidence of alleged admissions by the applicant: CC, NM and MA. The prosecution did not allege that these admissions were in relation to the charged conduct. Rather, they were relied upon to establish a tendency on the part of the applicant to have a sexual interest in the complainant and a willingness to act on that sexual interest.
CC was the applicant’s cousin; she was two decades older than him and they saw each other infrequently, at family gatherings. She gave evidence that, on the day that MA ended her relationship with the applicant, she went to CC’s home. MA told CC that the applicant had sexually abused the complainant. CC then telephoned the applicant and put the conversation on loudspeaker. CC told the applicant that MA had said he had sexually abused the complainant, then asked the applicant, ‘why did you do that?’ She said that the applicant responded by saying that he didn’t know what got into him and he grew up with girls and he has never done such a thing.
In cross-examination, CC agreed that MA had told her that she had ‘incontrovertible evidence’ that the applicant had abused the complainant. It was put to CC that the applicant never said ‘I don’t know what got into me’, and that he had actually said ‘I didn’t do it’; CC said she heard the former, however she also said that she was not sure. The applicant gave evidence in accordance with what his counsel put to CC.
MA also gave evidence about this phone call. She said that she heard the applicant say on loudspeaker that yes, he did it, and that he was sorry. He said he didn’t know what came over him.
NM was the applicant’s romantic partner from April 2020 to December 2020. NM’s evidence was that, in about April 2020, she overheard a telephone conversation between the applicant and MA. MA brought up something about jail. In cross-examination, NM gave evidence that MA said words to the effect of, ‘you’re going to go to jail’. She also said that the applicant and MA ‘were going ‘back and forth about child support … and something to do with their house’. NM denied that, in that phone call, MA had said that the applicant had sexually abused his daughter; immediately afterwards, she said she did not remember MA saying that.
NM said that the day after the phone call she wanted an explanation from the applicant about why he would go to jail, or about what MA meant by he was going to jail. She said that the applicant began to explain that he had sexually assaulted his daughter. NM asked what he meant by sexually assault. He said that he didn’t have sex with her, he just touched her. NM did not remember anything else about that conversation.
The applicant gave evidence that NM wanted to talk about the phone conversation on the day it occurred, but that he’d told her he wasn’t in the mood to talk about anything. He said that there was no conversation the following day.

The report to police

On 21 September 2020, MA reported the complainant’s allegations to police. This was at least nine months after the complainant had told MA about the offending, according to MA’s evidence. She said that she did not report the applicant to the police until October because she ‘wanted a bit more evidence’ and because he ‘lies a lot’. She was not sure that people would believe the complainant.

The defence case

On 4 March 2021, the applicant was arrested and interviewed by police. He denied the offending. His record of interview was played to the jury. As will emerge, the parties intended, and the judge understood, that the version of the record of interview would be an edited version, so as to exclude otherwise inadmissible evidence. As matters transpired, the version played to the jury was unedited.
At trial, the applicant gave evidence. He denied the offending and denied making any admissions.
The defence case theory was that MA had influenced her daughter to make up the allegations because MA was angry that the applicant had cheated on her and because she wanted to assume full ownership of the Brookfield house after the divorce. These matters were put to MA in cross-examination and she denied them.
The applicant had no prior convictions. He also called witnesses to give evidence of his good character.

Ground 5: did the prosecution failure to disclose material lead to a substantial miscarriage of justice?

Ground 5, which alleges that the prosecution failed to disclose relevant evidence before trial, namely various documents held by Victoria Police concerning a report to police by MA of an incident she said occurred on 29 December 2020.

The undisclosed material

After the conclusion of the trial, the applicant’s appellate counsel sought disclosure from the prosecution of ‘all material relating to the investigation where MA was the complainant’. On 5 August 2024, following the making of that request, Victoria Police provided to the applicant the following documents:
(a)a document entitled ‘Statement’, which was a statement signed by MA dated 30 December 2020 (subject to the penalties of perjury) (the ‘MA Statement’), in which she accused the applicant of committing sexual offences against her on 28 December 2020, and throwing rocks at his own car on that same occasion;
(b)a statement signed by First Constable Christy Stevens on 29 December 2020, which revealed that MA had told police on 29 December 2020 that she saw the applicant pick up a rock and throw it at his vehicle whilst she was on the phone to 000, and that he had done so in order to falsely tell police that she had damaged his vehicle;
(c)a Victoria Police document entitled ‘Task - Full Response Report’ dated 21 February 2021 concerning an incident on 28 December 2020; and
(d)a Victoria Police document entitled ‘Task - Full Response Report’ dated 2 March 2021 concerning email correspondence between Victoria Police and MA about the events of 28 December 2020 (the ‘second VicPol report’).
The second VicPol Report recorded that, on 1 March 2021:
(a)police advised MA that:
(i)‘CCTV in street depicts her throwing rocks at [the applicant’s] car, not vice versa as indicated in her statement’;
(ii)she had ‘provided a false version of events in her statement re the damage to [the applicant’s] car’;
(b)MA told police:
(i)that her ‘main concern was that the IVO was in place’;
(ii)that she ‘wasn’t aware that an IVO can be in place without any criminal investigation’;
(iii)that she didn’t want the criminal investigation to proceed; and
(iv)that (unnamed) family members were ‘pressuring her to continue with [the] investigation and stating that if she withdraws [the] matter then it would indicated that the [applicant] is telling the truth and she is lying’.

The parties’ submissions on ground 5

The applicant contended that the undisclosed documents were clearly material to the issues in the trial, because they demonstrated:
(a) animus by the complainant’s mother towards the applicant, around the time she reported the allegations regarding her daughter to the police (by telephone on 21 October 2020, and in a statement on 14 December 2020);
(b) that the complainant’s mother lied to police on 28 December 2020, and committed perjury in a police statement on 30 December 2020, in falsely accusing the applicant of criminal damage and attempting to pervert the course of justice;
(c) that the complainant’s mother wrongly believed both when she reported the allegations regarding her daughter,8 and her own allegations (on 30 December 2020), that there could be no intervention order without a criminal investigation;
(d) that the complainant’s mother made false allegations against the applicant in order to achieve a particular Court outcome (namely an intervention order).

The applicant contended that the undisclosed material ‘would have been of great assistance to the defence at trial, given the defence case theory was that the complainant’s mother had manipulated her daughter into falsely accusing the applicant of the offences the subject of the proposed appeal, and that a motivating force for that manipulation was MA’s aim of having the Federal Circuit and Family Court transfer the Brookfield house into her name only.’
As mentioned earlier, the respondent conceded that ground 5 was made out.

Consideration

We accept that the respondent’s concession was properly made, for the following reasons.
By reason of s 276(1)(b) of the Criminal Procedure Act 2009, this Court must allow an appeal against conviction if the appellant satisfies us that ‘as the result of an error or irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.
It is well-established that a failure by the prosecution to disclose material evidence can amount to a substantial miscarriage of justice. This Court summarised the principles concerning the prosecution duty of disclosure in Roberts v The Queen.[8] The principles relevant to the present case are as follows.
(a)The duty of disclosure ordinarily requires the prosecution to disclose to an accused all material relevant to his or her defence.
(b)In the present case, the obligation arose by reason of the statutory requirements imposed in relation to pre-trial disclosure contained in the Criminal Procedure Act 2009.[9] The statutory obligation gives effect to the common law rule that the prosecution must at common law disclose all relevant evidence to an accused and that a failure to do so may in some circumstances require the quashing of a verdict of guilty.[10]
(c)The rationale for the duty of disclosure derives from the need to give an accused a fair trial in circumstances where the resources of the State and an accused are disproportionate and the State is charged both with the investigation of the offence and the prosecution of the trial for that offence.
(d)The duty is owed to the Court, not the accused. It is an aspect of the prosecutor’s function to assist in the attainment of justice between the Crown and the accused.[11] The duty is ongoing.
(e)The duty is an aspect of the fundamental right to a fair trial and has been described as ‘a golden rule’.[12]
(f)Information material to the defence that was in the possession of investigating police at the time of trial should be regarded as in the possession of the Crown.[13]
(g)The duty of disclosure extends to matters affecting the assessment of the credibility and reliability of Crown witnesses. Fairness requires that material in possession of the prosecution that may cast doubt on the credibility or reliability of prosecution witnesses must be disclosed. The question whether one or more of the prosecution witnesses is credible or reliable is frequently one of the most important issues in the case.[14]
[8][2020] VSCA 277, [127] (T Forrest and Osborn JJA and Taylor AJA) (‘Roberts’).
[9]See pt 3.2 div 2 and pt 5.5 div 2.
[10]See Mallard v The Queen (2005) 224 CLR 125, 133 [17] (Gummow, Hayne, Callinan and Heydon JJ); [2005] HCA 68; citing Grey v The Queen (2001) 75 AJLR 1708; [2001] HCA 65.
[11]See Cannon v Tahche (2002) 5 VR 317, 340–1 [58] (Winneke P, Charles and Chernov JJA); [2002] VSCA 84; Nguyen v The Queen (2020) 269 CLR 299, 315 [37] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ); [2020] HCA 23.
[12]Roberts v The Queen [2020] VSCA 277, [127] (T Forrest and Osborn JJA and Taylor AJA), citing R v H [2004] 2 AC 135, 143 [14] (Lord Bingham).
[13]AJ v The Queen (2010) 32 VR 614, 622 [29] (Weinberg and Bongiorno JJA, Buchanan JA agreeing at [1]); [2011] VSCA 215; Brawn v The King (2025) 99 ALJR 872, 179 [29] (the Court); [2025] HCA 20 (‘Brawn’).
[14]R v Brown (Winston) [1998] AC 367, 377 (Lord Hope); [1997] UKHL 33; cited with approval in Eastman v Director of Public Prosecutions [No 13] [2016] ACTCA 65, [331] (Osborn, Whelan and Priest AJJ).
Finally, the Court in Roberts observed that:
[a] failure to make proper disclosure may give rise to serious unfairness and substantial injustice as the result of the manner in which a trial is conducted. This does not of course mean that every non-disclosure of relevant evidence results in a substantial miscarriage of justice, but we repeat the observation made by Glidewell LJ in R v Ward:
Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.
The difficulty referred to may be particularly acute when the non-disclosure goes to the credibility or reliability of evidence given at trial in ways which were not tested or advanced at trial. Further, where such a difficulty exists it may be a significant matter to deprive an accused of the right to make forensic choices and conduct his or her defence by reference to material which was not disclosed.[15]
[15]Roberts v The Queen [2020] VSCA 277, [132]–[133] (T Forrest and Osborn JJA and Taylor AJA), citing R v Ward [1993] 1 WLR 619, 642 (Lord Glidewell) (Court of Appeal). (Footnotes omitted).
As this Court observed in AJ v The Queen, in order for this Court to conclude that a trial is vitiated by non-disclosure ‘it is not necessary for the appellant to demonstrate that the jury verdict would have been different had the obligation been complied with’.[16] Nonetheless, it will be necessary for the Court to be satisfied that the evidence could have resulted in a different verdict. Were it otherwise, there would be no substantial miscarriage of justice by reason of the failure to disclose the evidence.
[16](2010) 32 VR 614, 620 [22] (Weinberg and Bongiorno JJA, Buchanan JA agreeing at [1]); [2020] VSCA 277 (emphasis added).
This approach to a failure to disclose evidence is consistent with the recent decision of the High Court in Brawn, where the Court said this:
[W]here it has been shown that there was error or irregularity in a criminal trial, such as the breach of the prosecution’s duty of disclosure that occurred in this case, then to establish a miscarriage of justice it must be shown that the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict. The Court of Appeal erred to the extent that it required that it be demonstrated that the appellant’s defence would have been conducted differently but for the error or irregularity…[17]
[17](2025) 99 ALJR 872, 874 [3] (The Court); [2025] HCA 20. (First emphasis added; second emphasis in original.) That case concerned the ‘common form’ criminal appeal provisions used in other States but not in Victoria. But we consider that the analysis is nonetheless relevant to the analysis required under s 276(b).
Turning, then, to the present case, the principal witness was, of course, the complainant. There was no failure to disclose any evidence directly relevant to her evidence or to her credibility or reliability. However, the defence case was that MA had induced the complainant to fabricate her allegations against the applicant. In addition, MA gave an account of the applicant’s admissions (which he disputed). She was called to give evidence at trial, and her credibility was centrally in issue, as the respondent accepted. Indeed, defence counsel’s closing address focused more on MA’s credibility than on the credibility or reliability of the complainant.
Such evidence is credibility evidence as defined in s 101 of the Evidence Act 2008. It is thus not admissible by reason of s 102 of that Act (the ‘credibility rule’). However, s 103 provides an exception to the credibility rule:
(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to—
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; …
Section 106 provides a further exception:
(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if—
(a) in cross-examination of the witness—
(i) the substance of the evidence was put to the witness; and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence; and
(b) the court gives leave to adduce the evidence.
(2) Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness—
(a) is biased or has a motive for being untruthful; or
…
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.
It is apparent that in this case the undisclosed evidence ‘tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth’ and thus falls within the exceptions in s 103 and s 106. The evidence also had the potential to support a motive on MA’s part for being untruthful.
In these circumstances, the applicant was denied the opportunity to seek to impugn MA’s credit by reference to what was established by the CCTV footage to have been a lie to the police about the applicant throwing rocks at her car. Had that material been put to MA, and had she denied lying to police and making a false statement, it would then have been open to the applicant to put into evidence the documents in question and/or to call a police officer to give evidence about the contents of the documents.
There can be no doubt that evidence would have been of real forensic utility to the defence. A central plank of the defence was that MA had caused the complainant to lie. An attack on MA’s credit was mounted — but was ultimately unsuccessful. Had this evidence been available to the defence at trial, there was a significant possibility that the evidence, if believed, would have led the jury, acting reasonably, to have concluded that MA was not a witness of credit. Had they so concluded, this could realistically have affected the reasoning of the jury to its verdict. That is so even assuming that it would have been open on the complainant’s evidence for the jury to convict.
Upon the Court informing the parties that we proposed to grant leave to appeal and allow the appeal, the applicant sought an order that an acquittal be entered. His counsel acknowledged that, ordinarily, an order for a new trial would be appropriate, but contended that the following matters supported an order for an acquittal:
(a)first, that every, or at least many, witnesses — including the complainant — will need to be recalled to give further evidence at any re-trial;
(b)secondly, that the applicant has been in prison for some two years;
(c)thirdly, that a retrial will result in an extended delay, in relation to offending that is alleged to have occurred more than five years ago; and
(d)fourthly, that the applicant made the forensic decision to give evidence at the first trial in circumstances in which he was unaware of the undisclosed material, leading to unfairness that could not be cured.
In relation to the last of these matters, the applicant contended that this means that there exists a recording and transcript of that evidence that will give the prosecution an unfair advantage at any re-trial. That is because, if he elects to give evidence at the re-trial then, even if the recording of his earlier evidence is not played to the jury, the prosecution will be able to cross-examine him on any inconsistencies between his evidence at the first trial and his evidence at the second trial. He also pointed out that he was cross-examined on the alleged events of 29 December 2020 without the benefit of the disclosure concerning those events.
We do not consider that these matters are such as to require that an acquittal be entered, rather than a re-trial ordered. The first and second matters are common consequences of an order for a re-trial following a substantial miscarriage of justice requiring the setting aside of a conviction. As for the third matter, the delay is not so excessive as to require an acquittal be entered.[18] Finally, accepting that the applicant’s decision to give evidence at the first trial was made in the absence of proper disclosure by the Crown, which may give rise to unfairness at the re-trial, such unfairness can be addressed by the trial judge.
[18]Indeed, even in Roberts, which involved a delay of some 20 years, during which Roberts was in custody, and which involved deliberate police misconduct, this Court ordered a re-trial rather than an acquittal.
Furthermore, there is an underlying public interest in the prosecution of the serious offences with which the applicant has been charged. There could be no suggestion that a retrial of the applicant will involve unacceptable injustice or unfairness, or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.

Conclusion

For these reasons, we granted leave to appeal on ground 5, allowed the appeal on that ground, and made an order for a new trial. In light of our conclusion on ground 5 it is unnecessary to consider grounds 2, 3 or 4.

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[2025] VSCA 222

9 September 2025