Baker (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0222

PERRY BAKER (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, ORR and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2025
DATE OF JUDGMENT:	24 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 139
JUDGMENT APPEALED FROM:	[2024] VCC 1720 (Judge Wilmoth)

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CRIMINAL LAW – Appeal – Conviction – Sexual offences against child under 16 – Victim applicant’s stepdaughter – Evidence of good character – Whether failure by defence counsel to adduce evidence of applicant’s lack of prior and subsequent sexual offending capable of explanation as rational forensic decision – Leave to appeal refused.

Evidence Act 2008, s 110.

Baker (a pseudonym) v The King [2024] VSCA 87; Parsons (a pseudonym) v The Queen [2016] VSCA 17; Schmidt v The King [2024] VSCA 256.

CRIMINAL LAW – Appeal – Conviction – Evidence of incriminating conduct – Whether prosecutor impermissibly relied on evidence of incriminating conduct – Leave to appeal granted – Appeal allowed.

Jury Directions Act 2015, ss 18, 19, 20, 21, 22.

Hussain v The King [2024] VSCA 288; Director of Public Prosecutions v Lynn [2024] VSCA 62; Pompei v The King [2023] VSCA 71.

CRIMINAL LAW – Appeal – Conviction – Proof beyond reasonable doubt – Direction that reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility – Whether direction inconsistent with Criminal Code (Cth) and Constitution – Farshchi v The King [2024] VSCA 235 applied – Leave to appeal refused.

Jury Directions Act 2015, s 64; Criminal Code (Cth), s 13.2; Constitution, s 80.

Farshchi v The King [2024] VSCA 235.

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Counsel
Applicant:		Mr DD Gurvich KC with Mr C Tom
Respondent:		Mr J Dickie
Solicitors
Applicant:	Stephen Peterson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
ORR JA
KIDD JA:

In this application for leave to appeal against conviction,[1] the applicant contends that errors were made at his trial in the County Court by each of: his counsel; the prosecutor; and the trial judge, resulting in a substantial miscarriage of justice. He contends that his counsel erred by failing to adduce evidence of his good character and to request a direction from the trial judge in relation to his good character (proposed ground one). He contends that the prosecutor erred by relying on incriminating conduct reasoning in his closing address without filing a notice of intention to rely on evidence of incriminating conduct and without the jury receiving any direction about incriminating conduct reasoning (proposed ground two). And he contends that the trial judge erred by misdirecting the jury on the standard of proof (proposed ground three).[2]
[1]The application was filed out of time. An order granting the applicant an extension of time was made on 18 March 2025.
[2]We granted the applicant leave to amend his application for leave to appeal to add proposed ground three at the hearing. The respondent did not oppose the grant of leave.
For the reasons that follow, we reject the applicant’s contention that the conduct of his counsel or the conduct of the trial judge resulted in a substantial miscarriage of justice. However, we have concluded that the conduct of the prosecutor did result in a substantial miscarriage of justice in relation to charges 1, 2, 7 and 8. We would therefore grant leave to appeal on proposed ground two and allow the appeal against conviction in respect of those charges.
At the hearing of the application for leave to appeal on 26 May 2025, the applicant made an application for bail. The Court refused that application. Our reasons for doing so are set out below.[3]
[3]See [120]–[126] below.

Overview of course of trial

The applicant was tried before a jury in June 2024. He pleaded not guilty to eight charges alleging six incidents of sexual offending against his partner’s daughter between 2017 and 2020, when she was aged between 12 and 15. The charges were: one charge of an indecent act with a child under the age of 16 (charge 1);[4] two charges of using a carriage service to transmit indecent communication to a child under the age of 16 (charges 2 and 6);[5] two charges of sexual assault of a child under the age of 16 (charges 3 and 4)[6]; one charge of sexual penetration of a child under the age of 16 (charge 5);[7] and two charges of sexual activity in the presence of a child under the age of 16 (charges 7 and 8).[8]
[4]Contrary to s 47(1) of the Crimes Act 1958, as at January 2017.
[5]Contrary to s 474.27A of the Criminal Code (Cth).
[6]Contrary to s 49D(1) of the Crimes Act 1958.
[7]Contrary to s 49B(1) of the Crimes Act 1958.
[8]Contrary to s 49F(1) of the Crimes Act 1958.
The prosecution called evidence from the complainant; the complainant’s mother; two of the complainant’s friends; and the informant. The complainant’s evidence was given in two VAREs[9] and in a special hearing conducted prior to the trial. The applicant did not give evidence. He participated in two police interviews, in which he denied the offending.
[9]Video and Audio Recorded Evidence.
The jury convicted the applicant of five of the eight charges. The three charges on which the applicant was acquitted were the two charges of sexual assault of a child under the age of 16 (charges 3 and 4) and the charge of sexual penetration of a child under the age of 16 (charge 5).
On 29 October 2024, the applicant was sentenced to a total effective sentence of 9 months’ imprisonment on charges 1, 7 and 8. On charges 2 and 6, he was sentenced to a community correction order of 2 years’ duration with work and other conditions, to commence upon completion of his term of imprisonment.[10]
[10]The conditions required the applicant to undertake 80 hours of unpaid community work, together with treatment, rehabilitation and supervision.

Overview of prosecution and defence positions at trial

Charge 1 (indecent act with a child under the age of 16)

The prosecution alleged that in January 2017, the applicant and the complainant, who was then 12 years old, were playfighting in the unit in Newborough in which the complainant and her mother lived. The applicant was 49 years old at this time, and was living in a caravan parked outside the unit. He had commenced a relationship with the complainant’s mother in August/September 2016.
The prosecution alleged that in the course of playfighting, the complainant fell backwards onto the couch and the applicant fell on top on her. The applicant then bit the complainant’s neck in a sensual or sexual way (charge 1 — indecent act with a child under 16).
In his first interview with police, the applicant admitted to playfighting with the complainant, but claimed that she had bitten him on the neck first and that he had bitten her back. He denied that there was anything sexual about the conduct.
The applicant was convicted of this charge.

Charge 2 (using carriage service to transmit indecent communication to child under the age of 16)

The prosecution alleged that sometime after the applicant, the complainant and the complainant’s mother moved to a house in Moe in early June 2017, the applicant walked into the bathroom while the complainant was having a shower. Following this event,[11] the applicant was alleged to have sent the complainant a text message saying something like, ‘I think about you when you’re in the shower’, or ‘I thought about you when you were in the shower’ (charge 2 — use carriage service to transmit indecent communication to a child under 16). The complainant was still 12 years old at this time. Her evidence was that she understood the text message, which was not adduced in evidence, to mean that the applicant was thinking about the occasion on which he saw her naked in the shower.
[11]The charge was particularised as having occurred between 1 June 2017 and 30 June 2017.
In his account to police, the applicant accepted that he had walked in on the complainant in a state of undress, but said that this had happened by accident at the Newborough unit while he was still living in the caravan. There was only one toilet in the unit, which he had been using, and on one occasion when he went to do so, he had opened the door and the complainant was in the bathroom. The defence also relied on the account of the complainant’s mother, who gave evidence of an occasion when she was following the applicant when he opened the bathroom door. She said she heard the complainant call out something like, ‘I’m in here’. She said she had not heard the shower running and believed that the applicant had walked in on the complainant by accident. The applicant also gave an account of a time when he had walked in on the complainant in her bedroom while she was in her underwear to give her a sundae. He denied having ever seen the complainant naked and denied sending the alleged text message.
The applicant was convicted of this charge.

Charges 3 to 5 (sexual assault and sexual penetration of a child under the age of 16)

Charges 3 to 5 related to an incident that allegedly took place on 17 December 2017, when the complainant was still 12 years old. The evidence in support of these charges came from the complainant’s second VARE. The prosecution alleged that the complainant’s mother was away at a work conference, and had left the complainant with the applicant in the house in Moe. The complainant’s evidence was that she drank a bottle of Coke from the refrigerator, which tasted a bit funny, before passing out on her bed. The complainant said she later came to believe that the Coke contained the illicit substance gamma-hydroxybutyrate, and that this had caused her to pass out. The prosecution alleged that, over the span of three hours, while the complainant was half in and out of sleep, the applicant stripped her naked and touched her breasts (charge 3 — sexual assault of a child under 16); touched her vagina (charge 4 — sexual assault of a child under 16); and digitally penetrated her vagina (charge 5 — sexual penetration of a child under 16).
In his second police interview, the applicant categorically denied this alleged offending. At trial his counsel argued that the complainant’s account of this alleged incident was not credible. The defence relied on testimony from the complainant’s mother about the dates she was away on work conferences, which did not align with the date of the alleged offending. The defence also relied on the fact that the date of the alleged offending fell on a Sunday, and the evidence of the complainant’s mother was that she would not generally be at a work conference on a Sunday and that she would not otherwise have gone away on a Sunday without being accompanied by the applicant or her daughter.
The applicant was acquitted of these charges.

Charge 6 (using carriage service to transmit indecent communication to child under the age of 16)

The alleged offending the subject of charge 6 related to a series of messages the applicant and the complainant exchanged on Facebook Messenger on 28 December 2017. By this time, the applicant was 13 years old.
Copies of the messages were adduced in evidence. They began with the complainant discussing her father and what she described as his ‘[n]o strings attached dating’. The complainant wrote to the applicant, ‘Don’t [get] any ideas fuck face’, to which the applicant replied, ‘i don’t. I just use hand’. The complainant responded with, ‘U seriously need to stop that shit’.
At some point the messages moved to a discussion about the complainant’s boyfriend and the size of his penis. The applicant asked the complainant, ‘Has he seen yours?’, referring to the complainant’s ‘pussy’. Later in the messages, the complainant referred to the applicant masturbating while her mother was away, to which the applicant responded, ‘I love pulling my [dick]’, and said that he’d ‘love a pussy’ because he’d ‘finger it all day’. The applicant then asked the complainant to delete ‘all this’.
The applicant continued to send messages to the complainant about him masturbating, asking the complainant, ‘how do u know I pull when your mums away?’, and saying, ‘its just [I] love the thought of someone watching when im doing it’. He said, ‘lol im doing it now before u get home’, and ‘i’ve had a few after seeing u nude, dont be mad’. When the complainant said, ‘Seriously don’t tell me this’, the applicant replied with, ‘ill slap u with it lady’. The complainant responded, ‘Just shut up and don’t talk to me if you’re going to be a creep you fucking [paedophile]’, to which the applicant replied, ‘u started it’ (charge 6 — use carriage service to transmit indecent communication to a child under 16).
In his first interview with police, the applicant denied texting the complainant or sending any messages to her via Facebook Messenger, and explicitly denied sending her the messages the subject of charge 6. At trial, the defence accepted that the applicant and the complainant had exchanged the messages the subject of charge 6. However, the defence argued that the prosecution had taken certain of those messages out of context and that when the exchange between the applicant and the complainant was read in its entirety, it revealed only that the applicant was ‘a touch over-indulgent’ with the complainant and ‘not terribly bright’.
The applicant was convicted of this charge.

Charge 7 (sexual activity in the presence of a child under the age of 16)

Charge 7 related to an incident that was alleged to have occurred on 27 January 2018, when the complainant was still 13 years old. The prosecution alleged that the applicant sent the complainant a message on Facebook Messenger while she was out late at night, saying, ‘don’t be long. [I] want to show you something before I pick your mum up’. He then messaged, ‘Did you hear me?’. Copies of these messages were adduced in evidence. The messages also recorded that the applicant had called the complainant after the last message, and that she had missed the call. The complainant gave evidence that she eventually messaged to ask what the surprise was and the applicant responded, ‘Come home and you’ll see’. The prosecution alleged that when the complainant arrived home, she walked into her bedroom and found the applicant sprawled on her bed, naked and masturbating (charge 7 — sexual activity in the presence of a child under 16).
The complainant gave evidence that she slammed the bedroom door closed, ran outside while crying, and hid. She said that she disclosed the incident and showed the Facebook messages to her mother, who confronted the applicant. The complainant’s mother gave evidence that the applicant told her that what the complainant said was untrue and that she must have seen him scratching himself when she walked past. She said that after this incident, she told the applicant to stop messaging the complainant, and she and the complainant decided to put locks on the complainant’s bedroom door and the bathroom door to make her feel safer.
The applicant accepted in his first interview with police that he had sent the complainant a message telling her that he had a surprise for her, but claimed he did so in order to get the complainant to come home before he picked up her mother, since she was out of the house without her mother’s permission. He denied that he was lying naked on the complainant’s bed and masturbating when the complainant came home. He also claimed that the complainant had later retracted the allegation. The defence argued that the applicant’s account was more likely than the complainant’s when the messages exchanged between the two on the day were viewed as a whole. The defence also relied on the evidence of the complainant’s mother that she hadn’t given the complainant permission to be out of the house, which was said to be inconsistent with the complainant’s evidence.
The applicant was convicted of this charge.

Charge 8 (sexual activity in the presence of a child under the age of 16)

Charge 8 related to a further incident in which the applicant was alleged to have masturbated in the presence of the complainant. The prosecution alleged that on 20 February 2020, when the complainant was 15 years old, she arrived home from school and went to her bedroom. Around 20 minutes later, the applicant opened the door to the complainant’s bedroom and asked her if she wanted to get dinner, to which the complainant responded that it was too early. The applicant remained outside the complainant’s bedroom in the hallway. The complainant gave evidence that she then moved to her bedroom door to see what the applicant was doing and saw him in the hallway staring at her with no pants on and masturbating (charge 8 — sexual activity in the presence of a child under 16).
The complainant’s evidence was that she then slammed the door and locked it. A short video filmed by the complainant on the day of the alleged offending was shown to the jury; it depicted the complainant’s face, shouting through the door, ‘You had your fucking dick out and you were fucking touching it’. The applicant’s voice is heard to say, ‘[complainant’s name] I wasn’t’.
The complainant gave evidence that she then packed some of her things into a bag and quietly climbed out her bedroom window and over the fence. She texted a friend to come and get her,[12] and the friend father’s drove over to collect her. That evening, the complainant attended a police station and made her first VARE. The applicant was arrested the following day.
[12]The messages sent by the complainant to her friend were adduced in evidence.
In his first interview with police, the applicant claimed that he had been tiling the hallway outside the complainant’s bedroom. He said that he had asked the complainant whether she was ready for dinner, and she said she wasn’t. About 20 minutes later, he knocked on her door, pushed the door open a little bit, and asked her again if she was ready. He said that the complaint started yelling and said, ‘You were scratching your dick’. The applicant said that he may very well have been scratching himself without realising, but he denied that he had no pants on and was masturbating. At trial, the defence emphasised the inconsistencies between the accounts given by the complainant of the incident to the police, to her mother and to her friends.
The applicant was convicted of this charge.

Evidence about the complainant’s phone and her messages with the applicant

It is necessary to refer to aspects of the accounts given by the complainant and the applicant about the complainant’s mobile phones and the messages on her phones. This evidence is relevant to proposed ground two.

Complainant

In her first VARE, the complainant told police that she had given her old phone, which was the phone on which she had received the text message from the applicant that was the subject of charge 2,[13] to the applicant. The complainant said that she was pretty sure her school would still have the messages on record. This was because at some point in Year 7, one of her friends had got hold of her phone and taken screenshots of, or forwarded to themselves, text messages the complainant had received from the applicant, including the one about the time he saw her in the shower. She recalled that one of her friends got their mother to speak to the school about the messages, after which the police came to the school and had a chat to the complainant. The complainant said that when the police asked her, ‘Is all this true?’, she ‘just denied it all’, because she didn’t want her mother finding out and being upset with her.
[13]See [12] above.
The complainant said that after the incident the subject of charge 7,[14] she had showed her mother text messages from the applicant on her new phone. Those messages were ‘just vague stuff’ like ‘Come to the shed’ and ‘Come out into the lounge’, because she ‘didn’t have anything on [her] new phone’.
[14]See [24] above.

When asked towards the end of the first VARE about her messages with the applicant, the complainant said they were mostly text messages and some were on Facebook. She said, ‘I blocked [the applicant] and I deleted everything ‘cause I panicked when the police came in ‘cause I didn’t want anyone to get in trouble ‘cause I thought my mum was gunna hate me’.
In the second VARE, after telling police that the applicant used to watch her in the shower, the complainant said, ‘I even had them get record of my old text messenger, I’m pretty sure they have them … ‘cause I deleted them because I was so scared’.
In the special hearing, the complainant said that on the day of the first VARE, she gave her phone to the informant, as well as her Facebook log in credentials. She said that she had provided what she could to the police, and that she thought that the informant would be able to recover messages that had been deleted from Facebook Messenger, but that the applicant had bought her a new phone and taken her old one, so she didn’t have access to ‘those old messages on [her] old iPhone’.
The complainant said that the applicant had bought her a new phone some time in 2018, after she said that she wanted a new phone. She recalled him saying, ‘I’ll buy you a new phone if you let me keep your old one, the one that you’re using’. The complainant said that she agreed to the deal and gave the applicant her old phone, which she was pretty sure the applicant later lost. The complainant confirmed that she did not have access to anything stored on her old phone after that point.
When the complainant was shown a screenshot of certain text messages she had exchanged with the applicant, she said that there were definitely other text messages but that she wasn’t sure where they were. She said she presumed that the ‘shower ones’ would be in this set of messages but that she wasn’t sure if they were on the phone she had provided to the police or on her old phone.
When asked why the record of her Facebook messages with the applicant showed no messages between the months of April 2018 and August 2019, the complainant said that she recalled deleting messages from the applicant that she didn’t want to look at because she was scared and they made her feel sick. She later said that the nature of the messages that made her sick was ‘similar’ to the ‘shower message’, and reiterated that not all the messages were accounted for in the exhibits she had been shown.

Applicant

In his first interview, the applicant denied sending the complainant any ‘sexual related messages’, or any messages via text or Facebook Messenger at all:
Q105. …. Is there ever any texting?
A:No.
Q106. No. And any Facebook messages at all?
A       No.
Q107. No. Has there ever been?
A.      I think there used to be ---
Q108. Yeah.
A.      --- texting. Well, she texts me, I don’t text her.
…
Q114. All right. And what about Facebook Messenger?
A.      No, I’m – I’m – not that I’m aware.
Q115. All right. Are you on Facebook?
A.      Yeah, mate. Yeah.
The applicant confirmed that he had bought the complainant a new phone after he had received a payout from an elbow injury, and that he had the complainant’s old phone. He explained that he sometimes received texts that were meant to go to the complainant ‘because that was her old phone and she hadn’t done something properly’. He said that he didn’t know where the complainant’s old phone (ie his current phone) was at the time of the interview and implied that he may have lost it while packing everything up at the house in Moe the night before.
The applicant also described himself as being not really technically savvy regarding computer and phone-related things. He was shown messages that had apparently been exchanged between himself and the complainant on Facebook Messenger starting in 2017, and was asked who else could have sent those messages if it was not him. He said, ‘Who knows?’, and claimed that he had been hacked five or six times on Facebook. The applicant said that the hacking had still been happening up until the day before the interview, and that explicit messages had been sent from his account to nearly every girl that he was friends with on Facebook. In respect of the messages the subject of charge 6, the applicant said that someone else must have sent the messages and that he had only had ‘decent conversations’ with the complainant.

Closing addresses

In his closing address, the prosecutor made the following remarks to the jury when referring to the statements made by the applicant in his first police interview set out at [42] above:
Question 105, ‘Is there ever any texting?’ ‘No.’ Straight out no. ‘Any Facebook messages at all?’ ‘No.’ Use that as a guide, as a gauge, if you like, to how truthful he is in speaking to the police in this interview. No texting, no Facebook messages. ‘Well she text me but I don’t text her,’ he goes on to say at Questions 108 and 109. Then they talk about the number of his account and then it comes back and the police officer says, ‘What about Facebook Messenger?’ ‘No. I'm not aware.’ ‘Are you on Facebook?’ And he says yes, he is and he goes through some details about that. He talks about it but you know now from what you’ve heard in the evidence that’s just simply untrue. He may have thought he had things under control in circumstances where you know, for instance, out of the circumstances he says he got a bit of a windfall, he was able to afford a new phone. So he gets a new phone for [the complainant] and takes her old one. Good way of getting rid of any evidence on the old phone. Putting it in his hands. So he probably thought he was on reasonable grounds.
The applicant’s counsel did not object to these remarks. In his own closing address to the jury, he said the following:
And then progress to an even less likely Charge 2. Now, remember this is related to the shower incident; it’s not the shower incident. The charge refers to the never-seen texts, the supposed texts that, as far as anyone can see, don’t exist. The prosecutor said, ‘Well, he can deny it because of course he bought her a new phone’, but he bought her a new phone long before those texts.
The applicant’s counsel took the jury through the entirety of the Facebook messages exchanged between the applicant and the complainant on 28 December 2017, which gave rise to charge 6. The applicant’s counsel described the applicant’s messages to the complainant as ‘inappropriate’, ‘not great stuff’, ‘pretty ordinary stuff’ and ‘not sensible’. However, he said that there was nothing in the messages ‘suggesting an improper relationship’ or a relationship ‘of sexual predator and a victim’.

Charge

No direction on the applicant’s good character was requested or given to the jury. Nor did the applicant’s counsel request, or the jury receive, any direction on the permissible use of any evidence of incriminating conduct.
Prior to trial, the prosecution had foreshadowed that it would rely on the applicant’s denials in his first interview that he had: ever sent texts or Facebook messages to the complainant; ever engaged in anything indecent with her; or ever crossed any boundaries with her, as lies that constituted evidence of incriminating conduct. However, the prosecution did not serve any formal notice of an intention to rely on any evidence of incriminating conduct.

Proposed ground one: failure to adduce good character evidence

By the first proposed ground of appeal, the applicant contends that:
A substantial miscarriage of justice occurred because of defence counsel’s failure at trial to:
(a)adduce evidence of his good character, in a particular respect, namely an absence of prior sexual offending; and
(b)request from the learned trial judge a direction, in relation to his good character in a particular respect.

Applicant’s submissions

The applicant submits that he had available to him evidence that he was, in a particular respect, a person of good character, in that he had no prior or subsequent convictions for sexual offending. He submits that, had this specific good character evidence been led, it would almost certainly have attracted a direction from the trial judge on its use. The evidence of his specific good character, accompanied by a corresponding jury direction, was said to be vital in a trial that was, to a large extent, ‘word against word’.
The applicant relies on an affidavit from his counsel at trial, Mr Alan Marshall. In that affidavit, Mr Marshall annexed a copy of the applicant’s prior criminal history, which he said he had received prior to the commencement of the trial. The criminal history records that the applicant had a series of convictions for driving offences, property offences, drug offences, offences of stalking and contravening a family violence intervention order, and the offence of committing an indictable offence while on bail. The property offences included a charge of dishonestly receiving stolen goods.
Mr Marshall deposes that he had intended to adduce evidence of the applicant’s specific good character — namely that the applicant had no prior history of sexual offending — through the informant. He states that he did not have any discussions with the prosecution in relation to character evidence. His evidence is that he is unable to recall why he did not adduce evidence of the applicant’s ‘specific good character’ and that he believes that this was simply an error.
The applicant accepts that the question of whether the failure to adduce good character evidence could be explained on the basis of a rational forensic decision is to be assessed objectively. Relying on Mr Marshall’s affidavit, the applicant submits that it could not be concluded, objectively, that his counsel’s decision to not lead the specific good character evidence was an informed or deliberate decision, or a tactical or rational one.
At the hearing, senior counsel for the applicant accepted that the failure to call the specific good character evidence could not have caused a substantial miscarriage of justice on charge 6, given that the jury would have needed to balance such evidence with what was plain on the face of the messages that were the subject of charge 6. Counsel also conceded that, had the specific good character evidence been led at trial, the aspect of the good character direction concerning the applicant’s credibility would not have arisen, given that the applicant had a prior conviction for dishonesty. Counsel accepted that the only aspect of the good character direction that would have been engaged was the direction concerning the likelihood that the applicant had offended.
Counsel for the applicant submitted that any risks that may have arisen from opening up the question of the applicant’s character, given the evidence of the messages adduced in support of charge 6, would have been far outweighed by the potential benefits of a good character direction.[15] He submitted that the logical approach for a jury would have been to consider the evidence of the applicant’s good character, as well as the direction from the judge that a person without a criminal history is less likely to commit a criminal offence, and then weigh that in the balance with the evidence that the applicant ‘acted indecently’ on the occasion that was the subject of charge 6. In essence, the jury would have understood that notwithstanding charge 6, the applicant was a person with no history of sexual offending when it came to consider the ‘more serious’ charges that both preceded and postdated the conduct that was the subject of charge 6. While counsel accepted that the benefit to the applicant of his good character may not have been as substantial as in a hypothetical case where the jury did not also have evidence that he had sent the messages that were the subject of charge 6, he submitted that there would still have been some benefit.
[15]Citing Saw Wah v The Queen (2014) 45 VR 440, 448 [41] (Weinberg JA); [2014] VSCA 7 (‘Saw Wah’).
The applicant submits that the failure to adduce the evidence of his good character deprived him of a fair chance of acquittal and resulted in a substantial miscarriage of justice in relation to charges 1, 2, 7 and 8. He submits that it could not be concluded that, regardless of whether the character evidence was called, his convictions on those charges were inevitable.[16] Although the benefit of the evidence, and the accompanying direction, may not have been substantial, it still may have made a difference. That is because the applicant’s good character was directly related to the questions the jury were required to decide: namely, whether the applicant had the requisite intent in respect of charge 1; whether there had been inappropriate conduct in relation to walking in on the complainant in the shower and whether the alleged text had subsequently been sent in respect of charge 2; and whether the events the subject of charges 7 and 8 occurred at all. The evidence of the applicant’s good character had an immediate and obvious connection with these issues,[17] which meant that the jury would have been directed that it was relevant to the likelihood of the offending on each of these charges.

Respondent’s submissions

[16]Citing Baker (a pseudonym) v The King [2024] VSCA 87, [102] (McLeish, Niall and Kaye JJA) (‘Baker’).

[17]Citing Bishop v The Queen (2013) 39 VR 642, 649 [30] (Priest JA, Redlich JA agreeing at 643 [1], Coghlan JA agreeing at 654 [46]); [2013] VSCA 273.

The respondent submits that evidence from the informant that the applicant had no prior or subsequent convictions for sexual offending[18] would have had very limited probative value in the circumstances of the trial and would potentially have given rise to directions that were confusing and ultimately to the applicant’s detriment.
[18]The respondent observes that there is no suggestion that the applicant was able to rely on evidence such as favourable evidence from witnesses who had observed him around children. Cf, eg, Sharma v The Queen [2011] VSCA 356 (‘Sharma’); De Silva v The Queen (2013) 236 A Crim R 214; [2013] VSCA 339 (‘De Silva’).
The respondent submits that it is not to the point that Mr Marshall has provided reasons for failing to lead the specific good character evidence, as the test of whether there is a reasonable explanation for the available evidence not having been adduced is an objective one.[19] Even with the affidavit from Mr Marshall, it is not clear: what submissions might have been made with respect to the evidence of the applicant’s specific good character; how the jury’s assessment of the charges might have been impacted by that evidence; or what directions might sensibly have been given. Given the circumstances of this case, the respondent submits that there is objectively a ready and rational explanation as to why the evidence was not adduced at trial.
[19]Citing Parsons (a pseudonym) v The Queen [2016] VSCA 17, [85] (Maxwell P, Redlich and Priest JJA) (‘Parsons’).
According to the respondent, these circumstances included, significantly, the undisputed (and indisputable) evidence that the applicant had sent the complainant the highly inappropriate Facebook messages the subject of charge 6.[20] While the applicant did not plead guilty to charge 6, he accepted at trial that he had sent these messages and his purported defence was that the messages were not indecent. The respondent submits that in circumstances where the evidence showed that the applicant had sent messages to a 13 year old child of a highly sexual nature, the adducing of the specific good character evidence and the giving of any corresponding directions would have ‘inevitably opened up a can of worms’ for the applicant.
[20]See [19]–[21] above.
In oral submissions, counsel for the respondent contended that, had the informant given the specific character evidence, it would have been impossible to frame meaningful submissions or directions as to how a jury could properly use that evidence in light of the Facebook messages. Counsel argued that a direction to the jury that they could use the fact that the applicant had no prior or subsequent convictions for sexual offending when determining the likelihood of the applicant’s guilt would have lost all force when the jury had regard to the messages. Counsel conceded that the messages did not show that the applicant was prepared to engage in inappropriate physical conduct with the complainant, which was the nature of the offending alleged in charge 1. However, he emphasised that the other charges on which the applicant was convicted did not involve direct physical contact.
The respondent also points to other matters that were not in dispute at the trial. The applicant did not deny that he had walked in on the complainant while she was in a state of undress (with respect to charge 2); that the complainant’s mother had told the applicant to stop messaging the complainant (with respect to charge 7); or that he had urged the complainant to come home for a surprise (with respect to charge 8). Further, on most charges on which the applicant was convicted, there was evidence of complaint, lending support to the complainant’s evidence. In contrast, the applicant provided accounts to police that contained lies and otherwise lacked credibility.
Counsel submitted that in these circumstances, the benefit of the specific good character evidence, and direction, could only have been marginal at best, and that this bore on the assessment of whether there was a rational explanation as to why the evidence was not adduced, and on whether the failure to adduce the evidence resulted in a substantial miscarriage of justice.
As to whether there was a substantial miscarriage of justice, the respondent submits that the applicant has not demonstrated that he was deprived of the prospect of an acquittal that was fairly open to him. The respondent points to the fact that the issue in dispute for all the charges except for charge 6 was whether the complainant was to be believed beyond reasonable doubt, and that the jury gave the applicant the benefit of the doubt on charges 3 to 5. Counsel submitted that the conviction on charge 6 was inevitable, and that for the rest of the charges, the specific good character evidence would have made no material difference, given the limited and specific nature of the evidence and the undisputed evidence of the inappropriate Facebook messages that the applicant sent to the complainant.

Consideration

Evidence of good character is capable of being of substantial benefit to an accused person in a criminal trial, including an accused person charged with sexual offending. There have been a number of cases involving such offending in which a failure to adduce and rely on such evidence has been held to amount to a substantial miscarriage of justice.[21]
[21]Baker [2024] VSCA 87, [101] (McLeish, Niall and Kaye JJA), citing, as examples, Bishop v The Queen (2013) 39 VR 642; [2013] VSCA 273, De Silva (2013) 236 A Crim R 214; [2013] VSCA 339, Sharma [2011] VSCA 356, Saw Wah (2014) 45 VR 440; [2014] VSCA 7.
While evidence of the good character of an accused person was, at common law, admissible only to the extent that it established the good reputation of the accused, that limitation has been discarded, so that evidence as to the accused person’s disposition, as well as reputation, is now admissible.[22] Pursuant to s 110(1) of the Evidence Act 2008, it is open to an accused person to adduce evidence not only of their ‘general’ good character, but also of their good character ‘in a particular respect’. The ‘all or nothing’ attitude of the common law that good character evidence is confined to evidence in general terms about the character and reputation of the accused has been abandoned.[23]
[22]See Baker [2024] VSCA 87, [71] (McLeish, Niall and Kaye JJA), referring to Saw Wah (2014) 45 VR 440, 448 [41] (Weinberg JA, Priest JA agreeing at 456 [101], Coghlan JA agreeing at 456 [102]); [2014] VSCA 7.
[23]Parsons [2016] VSCA 17, [63] (Maxwell P, Redlich and Priest JJA); Schmidt v The King [2024] VSCA 256, [140] (Niall JA) (‘Schmidt’).

Ordinarily, good character evidence will have a dual role, bearing both on the improbability of the guilt of the accused on the offences charged, and also on the credibility of an account by the accused of his or her innocence of the offences charged.[24]
[24]See Baker [2024] VSCA 87, [74] (McLeish, Niall and Kaye JJA); Schmidt [2024] VSCA 256, [137] (Niall JA).
In an appeal concerning the failure of trial counsel to adduce evidence of good character that was available to the accused, two questions necessarily arise. The first is whether the failure of trial counsel to call that evidence could be characterised as the result of a rational forensic decision made by counsel. If that question is answered in the negative, the second question is whether the failure of trial counsel to adduce the evidence of good character has resulted in a substantial miscarriage of justice.[25]
[25]Baker [2024] VSCA 87, [78] (McLeish, Niall and Kaye JJA).
When addressing the first question, it is necessary for the Court to take an objective approach. That is, the question is whether, viewed objectively, the failure to call the available good character evidence is capable of being explained on the basis that the course taken was to obtain a forensic advantage. An affidavit sworn by trial counsel as to their subjective intentions can therefore be ‘something of a distraction’. It will only be an exceptional case where counsel’s explanation for the course followed at trial might inform the answer to the objective enquiry of whether the impugned decision was capable of rational explanation.[26]
[26]Parsons [2016] VSCA 17, [82], [85] (Maxwell P, Redlich and Priest JJA).
We are satisfied that, assessed objectively, the failure of the applicant’s trial counsel to adduce evidence from the informant that the applicant had no prior or subsequent convictions for sexual offending is capable of explanation on the basis of rational forensic decision.
This was a case in which there was no dispute that the applicant had sent highly inappropriate messages to the complainant when she was 13 years old. In those messages, the applicant: referred to the complainant’s ‘pussy’; discussed the size of the complainant’s boyfriend’s penis; told the complainant that he loved ‘pulling [his dick]’; said that if he had a ‘pussy’ he would ‘finger it all day’; and referred to masturbating, including after he had seen the complainant nude. At various points in their exchange, the complainant referred to the applicant as a ‘fucking pedophile’ and told him not to be a ‘creep’. And in an implicit acknowledgement of the inappropriateness of their messages, in one message the applicant asked the complainant to delete all of them.
In a case in which the jury had these messages before them, which the applicant’s own counsel described as ‘inappropriate’, any decision to focus the jury’s attention on the character of the applicant would have carried a high level of risk. That risk was heightened by other evidence in this case that reflected poorly on the applicant’s character. That evidence included the evidence that the applicant had lied to the police about whether he sent messages to the complainant. It also included the evidence that things between the applicant and the complainant had got to a point where the complainant’s mother told the applicant to stop messaging the complainant and felt it necessary to arrange for locks to be installed on the complainant’s bedroom door and the bathroom door.
Viewed objectively, we consider that a legitimate and rational forensic way for the applicant’s counsel to seek to defend the charges was to focus not on the applicant’s character, but on the complainant’s credibility and on other evidence that was relevant to whether the charged acts had occurred.
Proposed ground one is therefore without merit.

Proposed ground two: incriminating conduct

By the second proposed ground of appeal, the applicant contends that:
The trial of the applicant miscarried in circumstances where the learned Prosecutor relied on incriminating conduct type reasoning in his final address when:
(a)no notice of incriminating conduct had been filed in relation to the conduct relied upon;
(b)no notice had been given that the learned prosecutor would be relying on such reasoning; and
(c) no direction was given to the jury about such reasoning.
This ground is directed to the portion of the prosecutor’s closing address where the prosecutor, after referring to the applicant’s statements in his first interview that he had neither texted the complainant nor sent her any Facebook messages, said:
So he gets a new phone for [the complainant] and takes her old one. Good way of getting rid of any evidence on the old phone. Putting it in his hands. So he probably thought he was on reasonable grounds.[27]

Applicant’s submissions

[27]Emphasis added.

The applicant submits that the impugned part of the prosecutor’s closing address was couched in the language of incriminating conduct, in that it constituted a contention that the applicant had provided the complainant with a new phone so that he could destroy evidence on her old phone because he knew that he had committed the offence the subject of charge 2. It was, he submits, ‘classical incriminating conduct language’, which invited the jury to infer the applicant’s guilt from his post-offence conduct in exchanging phones with the complainant.
According to the applicant, the words used by the prosecutor amounted to ‘explicit reliance’ on evidence of the applicant’s conduct in getting a new phone for the complainant and taking her old phone as evidence of incriminating conduct.[28] The words conveyed that the applicant had engaged in ‘conduct’, in that he had ‘put [the complainant’s phone] in his hands’ (and therefore also put in his hands the complainant’s copy of the text message the subject of charge 2). The prosecutor relied on this conduct as ‘incriminating conduct’, because it was used as an implied admission that the applicant was guilty of charge 2. The applicant submits that the conduct was used to demonstrate that he felt it necessary to obtain the evidence of that offence and destroy it, which then meant he would be ‘on reasonable grounds’ to subsequently deny the offending. For the prosecutor to rely on the evidence in this way, it was therefore necessary for the prosecution to comply with the requirements of Part 4 of the Jury Directions Act 2015, which did not occur.
[28]Citing Pompei v The King [2023] VSCA 71, [41] (Beach, T Forrest and Kaye JJA) (‘Pompei’).
The applicant submits that the prosecutor’s failure to serve a notice of intention to rely on the evidence of the applicant’s conduct as evidence of incriminating conduct under s 19 of the Jury Directions Act deprived him of the opportunity to argue that the evidence in question was not reasonably capable of being viewed by the jury as evidence of incriminating conduct. This was a matter of which the trial judge would have been required to be satisfied under s 20(1)(b) of the Jury Directions Act before the prosecution was permitted to rely on the evidence in that way. The applicant submits that the lack of notice also meant that he was not aware of how the prosecution would seek to use this evidence, which had the result of denying him the opportunity to cross-examine the complainant and other witnesses differently.
The applicant submits that the prosecution’s failure to comply with the requirements of Part 4 of the Jury Directions Act constituted an error or irregularity in the trial. He relies on this Court’s decisions in Pompei v The King[29] and Healy (a pseudonym) v The King.[30] He submits that a finding of guilt was not inevitable and there has been a substantial miscarriage of justice because the Court cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial.[31] Without proper instruction, there was a material risk that the jury could have misused the prosecutor’s remarks, engaging in reasoning that was both invalid and unfair to the applicant.[32]
[29][2023] VSCA 71, [40]–[44] (Priest, T Forrest and Kaye JJA).
[30][2024] VSCA 81, [4], [41]–[42] (Beach, Walker and Kaye JJA).
[31]Referring to Pompei [2023] VSCA 71, [46]–[47] (Priest, T Forrest and Kaye JJA); Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
[32]Citing Pompei [2023] VSCA 71, [43] (Priest, T Forrest and Kaye JJA).
The applicant concedes that no exception was taken to the prosecutor’s remarks, and nor was any direction sought. He relies on the affidavit of Mr Marshall, who deposes that although the prosecution gave notice in the Summary of Prosecution Opening for Trial dated 28 March 2023 of an intention to rely on purported lies by the applicant with respect to the use of Facebook Messenger in his record of interview, prior to trial, the prosecutor abandoned reliance on this evidence as evidence of incriminating conduct. Mr Marshall states that no notice was given indicating that the prosecution relied on any other incriminating conduct. He deposes that his failure to take exception to the prosecutor’s closing address and to seek a direction from the trial judge was ‘an oversight in the context of a stressful period during the trial where I was to commence my closing address shortly after the learned trial prosecutor completed his closing’.
The applicant also acknowledges that his trial counsel engaged in a ‘rebuttal of some kind’ in his own closing address, when he told the jury that the applicant bought the complainant a new phone ‘long before’ the text that was the subject of charge 2.[33] In effect, his trial counsel presented the jury with an argument that his conduct in obtaining the complainant’s phone could not have been incriminating conduct, because of the timing of that conduct in relation to the offending conduct. However, the applicant submits that on the state of the evidence, it was well open for the jury to reason that this argument was wrong.
[33]See [46] above.
In support of this point, the applicant provided a table identifying aspects of the complainant’s evidence that were said to indicate that it was open to the jury to conclude, in conformity with the prosecutor’s argument, that the text message the subject of charge 2 (which was alleged to have been sent in 2017) was received before the exchange of phones (which the complainant said occurred in 2018), and that the message was still on the complainant’s phone at the time she gave it to the applicant.[34] The applicant submits that, in any event, whether the text had or had not been deleted ‘didn’t really matter’, because the incriminating conduct focused on the applicant’s state of mind at the time he obtained the complainant’s phone. The applicant submits that although his trial counsel sought to neutralise the prosecutor’s invitation to the jury to treat the applicant’s conduct as incriminating conduct, his attempt to do so was ineffective and was not borne of any strategy.
[34]See the evidence referred to at [34]–[41] above.
The applicant submits that although the impugned remarks of the prosecutor were addressed to charge 2, they also had the potential to affect the way the jury reasoned in relation to charges 1, 7 and 8. He submits that the remarks may have led the jury to reason that he was a man who was prepared to destroy evidence to avoid detection, and then to lie about that to the police, and that a man of this character would also lie about the subject matter of charges 1, 7 and 8. In the absence of directions making clear the limited use the jury could make of that evidence, there was therefore a substantial risk that it would be misused in relation to charges 1, 7 and 8.

Respondent’s submissions

The respondent accepts that the impugned passage in the learned prosecutor’s closing address was ‘poorly framed’ and ‘clumsily worded’. The respondent also concedes that the evidence made it very likely that the chronology advanced by the applicant’s trial counsel in his closing address, in his attempt to neutralise the prosecutor’s remarks, was wrong. The respondent accepts that it was open to the jury to find that the exchange of phones had occurred in 2018, after the alleged offending in relation to charge 2.
The respondent emphasises that the impugned remarks of the prosecutor were made in the context of submissions about the applicant’s credit. In particular, the remarks were made in the context of contentions about how the jury should deal with the applicant’s statements in his first police interview that he had never sent any messages via text or Facebook to the complainant. The respondent submits that the prosecutor’s remarks were not directed to any specific message. Thus, when the prosecutor said that the applicant ‘probably thought he was on reasonable grounds’, he would not have been understood to convey that the applicant was on reasonable grounds to hide the particular text message that was the subject of charge 2. Instead, a fair reading of the words used by the prosecutor was that he was saying the applicant was ‘on reasonable grounds’ to lie about sending any messages or texts to the complainant — he felt, at the time of the interview, that he was on reasonable grounds to say that there were no messages at all.
The respondent submits that there was therefore no ‘explicit reliance’ by the prosecutor on the applicant’s gift of the new phone to the complainant, or to the applicant having kept the complainant’s old phone, as evidence of incriminating conduct for the purpose of charge 2. No evidence was led as to the consequences of the phone swap, in terms of what data had been retained or deleted from the old phone, and no argument was made as to how the exchange of phones pointed to the applicant’s guilt. In fact, the respondent submits, no such argument could have been made in circumstances where the complainant had consistently given evidence that she had ‘deleted everything’ from her phone after the police got involved at her school, so that it would have been clear in the jury’s minds that by the time the applicant obtained the complainant’s phone, the message the subject of charge 2 had already been deleted.[35]
[35]The respondent referred to the complainant’s evidence described at [34], [36]–[37], [40]–[41] above.
The respondent submits that had there been direct reliance on incriminating conduct with respect to charge 2, ‘alarm bells’ would have rung at trial. It is instructive, in the respondent’s submission, that no complaint about the prosecutor’s remarks was made by the applicant’s trial counsel and no issue was raised by the trial judge. This showed that in the context of the trial, the prosecutor’s comments simply related to the more general issue of why the applicant may have lied about never having sent any messages to the complainant. The exchange of phones was not a central issue in the trial, and the issue was not explored in any detail. In these circumstances, the jury would not have reasoned that the applicant must have thought there was an incriminating message on the complainant’s phone and that he therefore went to the lengths that he did to obtain that phone. As a result, there was no substantial miscarriage of justice.
As to the applicant’s submission that the prosecutor’s remarks had the potential to contaminate the jury’s reasoning not only in relation to charge 2, but also in relation to charges 1, 7 and 8, the respondent emphasises that there was no question that the evidence of the exchange of phones was admissible, so it was always going to be before the jury. The question, the respondent submits, is what the evidence was capable of showing. If it was an implied admission of anything, it was no more than that the applicant had sent the one message that was the subject of charge 2. Evidence that the applicant had exchanged phones with the complainant was not ‘so scandalous or far reaching’ that it could have had any impact on the other charges. It was not evidence that could have resulted in an assessment that the applicant was a person of bad character. There was no evidence that the applicant had accessed the messages on the complainant’s phone, or that he had done anything with those messages. Further, the jury was directed to consider each charge individually.

Consideration

Evidence of post-offence conduct is a category of evidence that may be easily misused. Such evidence may be seductive to a jury, which may accord it an ‘unjustified sinister significance’, leading to a form of reasoning that is both invalid and unfair to an accused person.[36] The provisions in Division 1 of Part 4 of the Jury Directions Act are designed to reflect and respond to this risk. In Pompei, this Court summarised the scheme created by the provisions as follows:[37]
(a)Incriminating conduct means conduct (being an act or omission of the accused that occurs after the event(s) alleged to constitute the offence charged) that amounts to an implied admission by the accused of having committed the offence charged or an element thereof.[38]
(b)The prosecution must give a notice of intention to rely on evidence of incriminating conduct, and a copy of the evidence on which it intends to rely, at least 28 days before the trial is listed to commence.[39]
(c)The judge may dispense with notice requirements if the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct and it is in the interests of justice to dispense with those requirements.[40]
(d)The prosecution must not rely on evidence of conduct as incriminating conduct unless the s 19 notice has been given, and the trial judge determines on the basis of all the evidence, that the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.[41]
(e)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury on the way in which they may use that evidence.[42]
(f)An additional optional direction on incriminating conduct is available upon request by defence counsel.[43]
[36]See Mocenigo v The Queen [2013] VSCA 231, [73] (Priest JA, Buchanan JA agreeing at [1], Neave JA agreeing at [2]); Pompei [2023] VSCA 71, [42]–[43] (Beach, T Forrest and Kaye JJA); Hussain v The King [2024] VSCA 288, [110] (Beach, McLeish and Orr JJA) (‘Hussain’).
[37][2023] VSCA 71, [35] (Beach, T Forrest and Kaye JJA).
[38]Jury Directions Act, s 18.
[39]Jury Directions Act, s 19.
[40]Jury Directions Act, ss 19(3)(b)–(c).
[41]Jury Directions Act, ss 20(1)(a)–(b).
[42]Jury Directions Act, ss 21(1)(a)–(b). Pursuant to s 21(1)(a), the trial judge must direct the jury that they may treat the evidence as evidence that the accused believed he or she had committed the offence (or an element of the offence), or that he or she had negated a defence, only if they concluded that the conduct had occurred and the only reasonable explanation for the conduct was that the accused held that belief. Pursuant to s 21(1)(b), the trial judge must direct the jury that even if they conclude that the accused believed he or she had committed the offence, they must still decide, on the basis of the evidence as a whole, whether the prosecution has proved guilt beyond reasonable doubt.
[43]Jury Directions Act, s 22. The optional direction includes a statement that even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean he or she is guilty.
There is no dispute in this case that, if the prosecutor ‘relied’ on evidence of the applicant’s conduct as evidence of incriminating conduct, he did so without complying with the requirements of this legislative scheme.

The question is whether the impugned remarks of the prosecutor constituted ‘reliance’ on the evidence that the applicant had obtained a new phone for the complainant and taken her old phone as evidence of incriminating conduct. In our view, they did.
It will be recalled that the key part of the prosecutor’s remarks was as follows:
So he gets a new phone for [the complainant] and takes her old one. Good way of getting rid of any evidence on the old phone. Putting it in his hands. So he probably thought he was on reasonable grounds.[44]
[44]Emphasis added.
By these remarks, the prosecutor drew the jury’s attention to the evidence of the applicant’s act of obtaining the complainant’s old phone. This was the ‘act’ that constituted ‘conduct’ for the purposes of the definition in s 18 of the Jury Directions Act. By following up his reference to the applicant’s act of obtaining the complainant’s phone with the statement, ‘Good way of getting rid of any evidence on the old phone. Putting it in his hands’, the prosecutor conveyed to the jury that they could treat the applicant’s conduct not only as evidence that was relevant to their assessment of his credit, but also as demonstrating that he believed he had committed the offence that the contents of the phone may have been capable of proving, namely charge 2. These statements constituted an assertion that, by taking steps to gain possession of the phone that may have contained evidence incriminating him on that charge, the applicant had impliedly admitted his guilt.
We reject the respondent’s assertion that the context for the prosecutor’s remarks demands a different conclusion. It is true that the context for the impugned remarks was the prosecutor’s assertion that the applicant had lied when he told police that he had not sent the complainant texts or Facebook messages. The prosecutor’s statements that the applicant ‘may have thought he had things under control’ and that he ‘probably thought he was on reasonable grounds’ may have been understood as an elaboration of, or as being otherwise related to, the assertion that the applicant had lied to police. In other words, these statements may have been understood as an attempt to demonstrate the ease with which the applicant could lie to police about sending messages to the complainant, because he had possession of the objective evidence that may have been capable of revealing his lie. However, the prosecutor’s statements also contained a clear invitation to the jury to treat the applicant’s conduct in obtaining the complainant’s phone as a ‘good way of getting rid of any [incriminating] evidence on the phone’. By this statement, the prosecutor went beyond assertions about the applicant lying to police. He invited the jury to infer that the applicant had engaged in certain conduct concerning an item of evidence that may have proved his guilt on charge 2, because he believed he was guilty of that charge.
Although the prosecutor did not refer specifically to charge 2, it was the only charge in relation to which there was a dispute about whether the applicant had sent the complainant a message. Necessarily, the prosecutor’s remarks were directed to that charge. The prosecutor was plainly inviting the jury to infer, from the applicant’s conduct in taking steps resulting in the complainant surrendering her phone to him, that he believed that material on the phone may have revealed his guilt on that charge.
We consider that, in circumstances where there had been no compliance with the requirements in Division 1 of Part 4 of the Jury Directions Act, the prosecutor’s reliance on this evidence as evidence of incriminating conduct constituted an error or irregularity in the trial. It meant that the applicant was prevented from availing himself of the extensive protections afforded by the legislative scheme to an accused person where post-offence conduct is to be relied on as incriminating conduct.[45] The applicant was deprived of the opportunity to argue to the judge that the prosecution should not be permitted to rely on the evidence that he had obtained the complainant’s phone as evidence of incriminating conduct, because a jury could not rationally conclude that the only reasonable explanation of this conduct was that he believed he had committed the offence the subject of charge 2.[46] As a result, the judge did not perform the ‘gate-keeper role’ of assessing whether the evidence was fit for the jury’s consideration as an implied admission of guilt, a determination to this effect being a necessary pre-condition to the prosecution’s use of the evidence as evidence of incriminating conduct.[47] Further, the applicant did not receive the benefit of the mandatory direction the jury would have received, had the judge determined that the evidence was reasonably capable of being viewed as evidence of incriminating conduct, about the legitimate use to which they could put that evidence.[48] Nor did he have the opportunity to seek further directions reinforcing the dangers of reasoning to guilt based on evidence of incriminating conduct. In these circumstances, there is a real risk that the jury misused the evidence.[49]
[45]See Hussain [2024] VSCA 288, [118] (Beach, McLeish and Orr JJA).
[46]See Jury Directions Act, s 20.
[47]See DPP vLynn [2024] VSCA 62, [114]–[116] (Emerton P, Taylor and T Forrest JJA).
[48]See Jury Directions Act, s 21.
[49]See Jury Directions Act, s 22.
It follows that the issue of incriminating conduct was left before the jury when it either should not have been raised at all (even with notice),[50] or it should have been the subject of a specific judicial direction. That conclusion is unaffected by the fact, relied on by the respondent, that the complainant consistently gave evidence that she had ‘deleted everything’ from her old phone. Even if that were so, it does not follow that the applicant knew that to be the case, or deny that he might have wished to ‘get rid’ of any messages on the phone in any event, so as to be sure of his position.
[50]The respondent has never contended that the evidence was ‘reasonably capable of being viewed by the jury as evidence of incriminating conduct’: s 20(1)(b) of the Jury Directions Act.
Given that there has been an error or irregularity in the trial, it is then necessary to consider whether that error or irregularity has occasioned a substantial miscarriage of justice, and if so, in relation to which charges.[51] The respondent did not contend that the applicant’s convictions on any of charges 1, 2, 7 or 8 were inevitable. It is therefore necessary to assess whether the applicant has discharged his burden to show that the error or irregularity had the capacity to affect the outcome of his trial on one or more of the charges.[52]
[51]Criminal Procedure Act 2009, s 276(1)(b).
[52]Karam v The King [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA).
We consider that the applicant has discharged this burden in relation to charge 2. The prosecutor’s remarks had the capacity to affect the jury’s reasoning process on that charge. Without directions in accordance with s 21(1) of the Jury Directions Act, there was a real risk that the jury would misuse that evidence. The defence counsel’s attempt to ‘neutralise’ the issue by saying that the phone exchange had occurred ‘long before’ the events the subject of charge 2 was inadequate to guard against the risk of impermissible reasoning, in circumstances where it was open to the jury to conclude that this statement was inconsistent with the evidence. We are therefore satisfied that there has been a substantial miscarriage of justice in relation to charge 2.
The question of whether the applicant has discharged this burden in relation to charges 1, 7 and 8 is more difficult. Those charges concerned conduct of a different nature to charge 2, namely engaging in an indecent act with a child and engaging in sexual activity in the presence of a child. The applicant’s conduct in relation to the complainant’s phone was obviously less directly relevant to the jury’s reasoning process on whether the applicant had bitten the complainant in a sexual way or masturbated in her presence, than it was to the conduct alleged by charge 2.
However, we are satisfied that the prosecutor’s remarks, which suggested that the applicant had sought to ‘get rid’ of evidence that would have incriminated him on charge 2, were capable of also affecting the applicant’s chance of securing an acquittal on each of charges 1, 7 and 8. That is because those remarks may have borne on the jury’s willingness to accept the applicant’s denial of the events that gave rise to those charges (and therefore to reject the complainant’s account of those events). The jury may have reasoned that if the applicant was the type of person who was prepared to take steps to ‘get rid’ of incriminating evidence, he was also the type of person who would lie to police about events that were said to have occurred when he was alone with the applicant. The jury were not told of any limitations in the way they could use this evidence of the applicant’s ‘bad character’ and we are not satisfied that the direction to consider each charge separately was sufficient to overcome the risk of impermissible reasoning. We are therefore satisfied that there has also been a substantial miscarriage of justice in relation to charges 1, 7 and 8.

Proposed ground three: s 64 of the Jury Directions Act

At the outset of the trial, before any evidence was adduced, the judge gave the jury the following directions on the standard of proof:
In deciding whether the prosecution has proved its case beyond reasonable doubt, you should remember that it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do this. A reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.[53]
[53]Emphasis added.
The final sentence of these directions was an explanation of the criminal standard of proof in accordance with s 64(1)(e) of the Jury Directions Act. That provision permits a trial judge, in explaining the phrase ‘proof beyond reasonable doubt’ to the jury, to indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.
By the third proposed ground of appeal, the applicant contends that:
A substantial miscarriage of justice with respect to charges 2 and 6 resulted from the trial judge’s direction to the jury on proof beyond reasonable doubt, in giving the direction provided for by s 64(1)(e) of the Jury Directions Act.
In written submissions, the applicant submits that the impugned direction diminished the criminal standard of proof. He submits that by permitting such an explanation of the criminal standard of proof, s 64(1)(e) is inconsistent with:
(a)s 13.2 of the Criminal Code (Cth), which provides that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt; and
(b)s 80 of the Constitution, which requires Commonwealth offences to be tried by jury,
and therefore is not picked up by s 68(1) of the Judiciary Act 1903 (Cth).
The applicant acknowledges that this argument is contrary to the decision of this Court in Farshchi v The King.[54] Senior counsel informed the Court that he therefore did not intend to argue the substance of the ground, but merely sought to formally preserve his position, in light of the decision of the High Court to grant special leave to appeal from the decision in Farshchi.[55]
[54][2024] VSCA 235 (‘Farshchi’). The applicant also submitted that the argument was contrary to the decision of this Court in Charlton v The King [2025] VSCA 46.
[55]Farshchi v The King [2025] HCADisp 41.
The respondent made limited oral submissions in relation to proposed ground three at the hearing. The respondent: noted that the applicant had made no objection to the impugned direction; submitted that even if s 68(1) of the Judiciary Act 1903 (Cth) did not pick up and apply s 64(1)(e) of the Jury Directions Act, this was only capable of bearing on the two Commonwealth charges (charges 2 and 6); and submitted that the impugned direction would not have had any real significance in terms of undermining the standard of proof in the circumstances of this case.
Proposed ground three must fail. It is contrary to the authority of this Court. In Farshchi, this Court held that s 64(1)(e) of the Jury Directions Act was not inconsistent with s 13.2 of the Criminal Code (Cth). That was held to be so because, by permitting a jury to be directed that an unrealistic possibility could not be the source of reasonable doubt, s 64(1)(e) does not provide for a different standard of proof than that contained in s 13.2 of the Criminal Code (Cth); rather, it simply provides an explanation for that standard of proof.[56] Further, Farshchi held that s 64(1)(e) is not inconsistent with s 80 of the Constitution, because it does not diminish the standard of proof which has been held to be an essential feature of the institution of trial by jury under the Constitution — again, it merely permits an explanation of that standard.[57] It was not submitted before us that this Court’s decision in Farshchi was plainly wrong, or that there were compelling reasons to depart from it.[58] We are therefore bound to apply Farshchi and it stands in the way of acceptance of the applicant’s contentions in respect of proposed ground three.
[56]Farshchi [2023] VSCA 235, [47] (Priest JA, Niall JA agreeing at [79], Taylor JA agreeing at [80]).
[57]Farshchi [2023] VSCA 235, [53]–[54] (Priest JA, Niall JA agreeing at [79], Taylor JA agreeing at [80]).
[58]Nguyen v Nguyen (1990) 169 CLR 245, 268–70 (Dawson, Toohey and McHugh JJ, Brennan J agreeing at 250, Deane J agreeing at 251); [1990] HCA 9; RJE v Secretary, Department of Justice (2008) 21 VR 526, 540 [48] (Maxwell P and Weinberg JA); [2008] VSCA 265; see also at 553–4 [104] (Nettle JA); Gett v Tabet (2009) 109 NSWLR 1, 7–17 [261]–[301] (Allsop P, Beazley and Basten JJA); [2009] NSWCA 76; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); [2007] HCA 22; Hill v Zuda Pty Ltd (2022) 275 CLR 24, 34–5 [25] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ); [2022] HCA 21.

Disposition

The applicant has been successful on proposed ground two. We will grant leave to appeal on that ground. We will otherwise refuse leave to appeal. We will allow the appeal. We will make orders quashing the applicant’s convictions on charges 1, 2, 7 and 8 and order a retrial on those charges.
The applicant submitted that, in the event we reached this position, we should also make an order under ss 277(3) and (4) of the Criminal Procedure Act varying the sentence imposed on charge 6, which will be the only charge on which the applicant will presently stand convicted.[59]
[59]Citing Dhal v The Queen [2020] VSCA 90, [120]–[127] (Croucher AJA, Emerton JA agreeing at [2]) (‘Dhal’).
It will be recalled that charge 6 was one of two charges (the other being charge 2) on which the judge imposed a community correction order of 2 years’ duration, commencing upon the completion of his term of imprisonment. Under the community correction order, the applicant was to perform 80 hours of unpaid community work, and to submit to various supervision, treatment and rehabilitation conditions.

Submissions

The applicant submits that the Court should vary the sentence on charge 6 by imposing a recognizance release order under s 20(1)(a) of the Crimes Act 1914 (Cth). He submits that because: the community correction order was an aggregate sentence imposed on charges 2 and 6; he has served 209 days of his custodial sentence (as at the date of the hearing); and he will remain on the Sex Offenders Register as a result of his conviction on charge 6 for a period of 8 years, this is the appropriate disposition for charge 6 when viewed alone.
The respondent accepts that if the Court was to uphold the appeal with respect to all the charges on which the applicant was convicted except for charge 6, then this would substantially diminish the applicant’s criminality for the purpose of sentencing. Nevertheless, the respondent submits that the sentence on charge 6 must still reflect the relatively serious nature of the offending the subject of that charge. A recognizance release order, even with conviction, is said to fall short of adequately reflecting the conduct involved in the offending. The respondent further submits that if the Court was to vary the sentence on charge 6, it would be most unusual to have regard to the fact that the applicant has served time in respect of charges on which the applicant falls to be retried.[60]

Consideration

[60]Sex Offenders Registration Act 2004, s 34(1)(a), Schedule 2 s 28D(ix).

Sections 277(3) and (4) of the Criminal Procedure Act2009 provide:
(3)If the Court of Appeal sets aside the conviction of offence A, it may vary a sentence that —
(a)was imposed for an offence other than offence A at or after the time when the appellant was sentenced for offence A; and
(b)took into account the sentence for offence A.
(4)A power of the Court of Appeal under this section to impose a sentence in substitution for the sentence imposed by the originating court may still be exercised even if the sentence imposed by the originating court is an aggregate sentence of imprisonment.
This Court has observed that s 277(3) will most likely be employed where an appellant’s convictions (including one or more convictions that are quashed on appeal) encompass one series of events, so that the sentences imposed would have been adjusted to reflect the principle of totality, or in situations where one minimum period has been imposed in relation to two or more sets of convictions. In those circumstances, the quashing of one or more convictions will often automatically create some ostensible and obvious error that will require a different sentence to be imposed, without any need for further demonstration of that conclusion.[61]
[61]CMG v The Queen (2013) 46 VR 728, 741 [57] (Warren CJ); [2013] VSCA 243.
In sentencing the applicant on charge 6, it is clear that the judge ‘took into account’ at least the sentence for charge 2, and that this occurred at the time the applicant was sentenced for charge 6.[62] Our discretion under s 277(3) is therefore enlivened.
[62]DPP v Baker (a pseudonym) [2024] VCC 1720, [28], [30].
Having considered the matters raised by the applicant, we decline to exercise that discretion. We accept the respondent’s submission that the period of imprisonment the applicant has served to date in respect of his convictions on charges 1, 7 and 8 ought not bear on our assessment of whether to vary the applicant’s sentence on charge 6. We have indicated that we will order a retrial on those charges. The occasion on which it will be necessary to take into account the time the applicant has served to date pursuant to the sentences previously imposed on those charges will be the occasion, if it arises, when the applicant again falls to be sentenced on those charges.
The applicant has not persuaded us that the imposition of a community correction order of two years’ duration is an inappropriate sentence for charge 6, when it is viewed in isolation from charge 2. The offending the subject of charge 6 was objectively serious, involving the transmission of a series of highly inappropriate messages to the complainant. As the judge observed, by virtue of her age, the complainant lacked the ability to make appropriate decisions and judgments and was vulnerable to exploitation.[63] We are not satisfied that charge 2, which involved the earlier transmission of a single message to the complainant in which the applicant said something like, ‘I think about you when you’re in the shower’, significantly increased the criminality that led the judge to impose the community correction order. In other words, we are not satisfied that the sentence on charge 2 was more than a ‘relatively minor component’ of the sentence imposed on charges 2 and 6.[64] Thus, even taking into account the application of the principle of totality in the judge’s sentencing process, we are not satisfied that there will be an ‘ostensible and obvious error’ if we decline to exercise our power to vary the applicant’s sentence on charge 6.
[63]DPP v Baker (a pseudonym) [2024] VCC 1720, [14].
[64]Dhal [2020] VSCA 90, [124] (Croucher AJA, Emerton JA agreeing at [2]).

Bail

At the conclusion of the hearing, we indicated that we would reserve judgment in this matter. Having received that indication, the applicant applied for bail under s 310 of the Criminal Procedure Act 2009.
In support of his application for bail, the applicant relied on an affidavit from his solicitor made on 3 March 2025. The applicant’s solicitor deposed, inter alia, that the applicant had no outstanding matters, that he had not made any previous application for bail in relation to this matter and that his custodial sentence will be completed by 29 July 2025. The applicant’s solicitor also deposed that the applicant was on bail for the duration of the court process below, and that he had been on bail between the jury verdict and the plea hearings. Various documents were annexed to the affidavit, including: a copy of the applicant’s prior convictions; a copy of an intervention order against the applicant, listing the complainant as the protected person;[65] the application for leave to appeal; and various other documents filed in this Court.
[65]We note that the intervention order appears to have expired on 7 April 2025.
The applicant accepted that he must show exceptional circumstances in order to be granted bail.[66] To establish exceptional circumstances, he relies on two matters: the fact that his custodial sentence will expire at the end of July, and the submission that he has good prospects of succeeding in overturning his conviction on all charges other than charge 6.
[66]See Cvetanovski v The Queen [2020] VSCA 126, [1]–[2] (Maxwell P, Beach and Weinberg JJA).
The respondent opposed the grant of bail. The respondent observed that the merits of the application for leave to appeal were not sufficiently strong for this Court to determine the application without reserving its judgment. There was therefore no certainty that this Court would grant the application for leave to appeal. The respondent submitted that it would be a very rare case where the fact that an applicant’s sentence (or the custodial component of their sentence) was shortly due to expire would constitute exceptional circumstances for the purpose of an application for bail pending appeal. The respondent further observed that the Court had expedited the hearing of the application for leave to appeal.
As we have noted, we refused the application for bail at the hearing. We were not persuaded that the applicant had established that there were exceptional circumstances warranting his release on bail pending the determination of his application for leave to appeal. As this Court stated in Madafferi v The Queen:
‘Exceptional circumstances’ means circumstances which are ‘truly exceptional’. The requirement for the applicant to establish exceptional circumstances is a stringent one, having regard to the fact that he has been convicted and sentenced, and the right of appeal is conditioned by the presumption which operates in favour of the validity of the conviction and sentence. This is to be contrasted to trial bail, where an accused enjoys both the presumption of innocence and a presumption in favour of the grant of bail.[67]
[67]Madafferi v The Queen [2021] VSCA 332, [34] (Emerton P and Osborn JA) (‘Madafferi’), citing Re Zoudi (2006) 14 VR 580, 589 [28(5)] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298.
The fact that an applicant for leave to appeal has served a substantial portion of his sentence before his or her appeal is heard may go some way towards establishing exceptional circumstances.[68] The longer the period of time still to be served, the greater the prospects of success will need to be before it might be said that exceptional circumstances exist justifying a grant of bail.[69]
[68]Madafferi [2021] VSCA 332, [43] (Emerton P and Osborn JA).
[69]Higgs v The Queen [2021] VSCA 90, [28] (Beach and Emerton JJA).
Although it was clear at the hearing of the application for leave to appeal that the applicant’s grounds of appeal were arguable, we did not regard the applicant’s prospects of success, even when considered in combination with the fact that he had served approximately seven months of his total effective sentence of nine months’ imprisonment, as constituting exceptional circumstances. We therefore refused the application for bail.

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[2025] VSCA 139

24 June 2025