Briggs (a Pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0123

DOUGLAS BRIGGS (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2024
DATE OF JUDGMENT:	1 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 80
JUDGMENT APPEALED FROM:	DPP v Briggs (a pseudonym) (Unreported, County Court of Victoria, Judge Smallwood, 31 May 2023 (conviction) 16 June 2023 (sentence))

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CRIMINAL LAW – Appeal – Conviction – Charges of sexual offending against a child under 12 years – Directions to jury – Trial judge gave directions on tendency evidence, forensic disadvantage and motive to lie – Whether directions invited the jury to engage in impermissible propensity reasoning – Whether trial judge’s comments undermined directions by judge on forensic disadvantage, delayed complaint and motive to lie – Whether comments by judge undermined credibility of accused – Whether substantial miscarriage of justice occurred – Appeal allowed.

Jury Directions Act 2015, ss 27, 39, 44L, 52; Evidence Act 2008, s 97(1)(a) referred to.

McKell v The Queen (2019) 264 CLR 307, applied – Robbins v The Queen (2017) 269 A Crim R 244; [2017] VSCA 288; Slater v The Queen [2020] VSCA 270; Pell v The Queen [2019] VSCA 186, considered.

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Counsel
Applicant:		Mr T Kassimatis KC and Mr C Wareham
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Pica Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WALKER JA
KAYE JA:

The applicant was convicted by the jury empanelled on his trial in the County Court of four charges of sexual assault of a child under 16 years of age (charges 1, 3, 4 and 7), three charges of sexual penetration of a child under 12 years of age (charges 2, 5 and 11), two charges of attempted sexual penetration of a child under 12 years of age (charges 9 and 10), and one charge of sexual activity in the presence of a child under 16 years of age (charge 8). He was acquitted of one charge of sexual assault of a child under 16 years (charge 12). No verdict was delivered on charge 6 (sexual assault of a child under 16 years) which was an alternative to charge 5.
Following a plea made on his behalf, the applicant was sentenced to a total effective sentence of 14 years’ imprisonment with a non-parole period of 10 years.
The applicant originally sought leave to appeal against conviction on six grounds. Following the decision of the High Court in DPP v Roder,[1] the applicant abandoned the second ground. The remaining grounds upon which he seeks leave to appeal are as follows:
(1)A substantial miscarriage of justice occurred because the trial judge directed the jury that, in considering the evidence or uncharged acts or other misconduct, it was open to them to engage in impermissible propensity reasoning.
(3)A substantial miscarriage of justice occurred as a result of the trial judge’s directions on delay and forensic disadvantage.
(4)A substantial miscarriage of justice occurred as a result of the trial judge’s directions on the complainant’s delayed complaint.
(5)A substantial miscarriage of justice occurred as a result of the trial judge’s directions on the complainant’s motive to lie.
(6)A substantial miscarriage of justice occurred as a result of an aggregate of the errors and matter relied upon in Grounds 1 to 5.
[1][2024] HCA 15.
The applicant has also sought leave to appeal against sentence on one ground.
For the reasons that follow, we have concluded that the application for leave to appeal against conviction should be granted on grounds 1, 3, 5 and 6, the appeal allowed, and the convictions of the applicant on each of the charges set aside.

Background facts and circumstances

The offending, that was the subject of the charges, was alleged to have taken place between June 2019 and February 2020. The applicant, who was born in 1980, was between 39 and 40 years of age at the time. The offending was allegedly committed against the complainant, who was born on 26 May 2009, and was between ten and eleven years of age during the period of the alleged offending.
At the time of the offending, the complainant lived with the applicant and her mother, BT, at various addresses. The applicant was a friend of the complainant’s father, who passed away in 2011. Subsequently, the applicant commenced visiting BT’s home regularly, and by 2013 he had commenced a relationship with her. Between April 2017 and January 2018, BT, the complainant and her brother moved to live at Ashmore Palms Holiday Village in Ashmore in Queensland. During that period, the applicant travelled to Queensland on a number of occasions in order to visit them. Three children were born to the relationship between the applicant and BT, the first being born in January 2018, the second in April 2019, and the third in May 2021.

The uncharged acts

The offending was alleged to have been committed in the course of four specific incidents that took place in the period charged. In addition to the evidence in relation to each of those charges, the prosecution relied on the evidence of three incidents that occurred in Queensland between April 2017 and January 2018 as tendency evidence.
Specifically, on an occasion between 28 April 2017 and 5 January 2018, the complainant, who was then approximately eight years of age, and other members of her family were spending the night at a hotel in Queensland. As she was drifting off to sleep, the complainant gave her brother, PC, a kiss on both his cheeks. When she also tried to kiss the applicant goodnight, he moved his head so that she kissed his lips. The applicant told the complainant that he ‘wanted to do that for a long time’.
On another occasion during the same period, while the complainant and her family were staying at a hotel in Toowoomba, the applicant was lying between the complainant and her brother on the bed. The applicant allegedly rubbed the complainant’s vagina over her clothes with his finger.
On about 26 May 2017, while the complainant was staying with her family at the Ashmore Plains Holiday Village in Queensland, the applicant entered the room in which she was sleeping and woke her, saying ‘happy birthday, birthday girl’. He then allegedly used two fingers to touch the complainant’s vagina and then placed her hand on his penis and made her masturbate it for a few moments.

The charged acts

As we have noted, the charged acts comprised four incidents which occurred between 1 June 2019 and 29 February 2020.
The first incident (that was the subject of charges 1, 2 and 3) was alleged to have occurred between 1 June and 31 July 2019 at the family’s home in Phoenix Street, Sunshine North. At the time, the complainant’s mother was not at home. Immediately before the incident, the complainant was in the applicant’s bedroom watching a movie with her sisters and brother. The applicant called the complainant into a bedroom, where he was lying under the sheet on a bed, touching his penis. He pulled the complainant towards him, pulled her underwear down, lay on top of her and rubbed his penis against her vagina over her clothes (charge 1). The complainant asked the applicant ‘why are you doing this?’, but he did not respond. He placed the complainant on top of him and put his penis into her anus (charge 2). The applicant then grabbed the complainant’s hips and pulled her on top of him. He rubbed his hands onto her chest and kissed her breasts (charge 3). The applicant told the complainant that he ‘loved’ her and that she was ‘not to tell anyone’. The complainant asked the applicant to ‘stop’ and tried to get off him, but the applicant would not let her do so. After the incident, the complainant pulled up her underwear and pants and returned to the bedroom which she shared with her siblings.
The second incident (that was the subject of charges 4, 5 and 6) occurred between 1 June and 31 July 2019. On that occasion, the complainant was on a mattress in the lounge room at the Sunshine North address with her younger sister. The applicant entered the room and made the complainant masturbate his penis (charge 4). He then touched the complainant’s vagina and digitally penetrated it (charges 5 and 6).
The third incident, which involved charges 7, 8, 9, 10 and 11, occurred on an occasion between 1 July 2019 and 31 October 2019 at the Sunshine North premises. On that occasion, the complainant was asleep in the applicant’s bed, having watched a movie. The applicant woke her up by putting his hands under her pants and touching her vagina (charge 7). He then pulled the complainant’s underwear off before removing his own underwear, and masturbating his penis (charge 8). The applicant then pulled the complainant towards him and attempted to insert her penis into her anus (charge 9). He lifted the complainant’s legs over his shoulders and tried to insert his penis into her vagina (charge 10). He then pushed her off the bed into a half-kneeling position, pushed her head down and inserted his penis into her mouth (charge 11). He then made the complainant lie down, and he lay on top of her, moving up and down while kissing her on the mouth and inserting his tongue into her mouth (uncharged act). The applicant then got up and walked into the kitchen.
The fourth incident was the subject of charge 12 (on which the applicant was acquitted). On an occasion between 1 January and 29 February 2020, during a supervision contact at Arbour House in Duke Street, Sunshine, the applicant sat next to the complainant and told her to ‘come here’ and sit on his lap. When she did so, the applicant touched her breasts over her school uniform (charge 12).

Complaint

On 17 March 2021 the complainant told her teacher, TS,[2] that the applicant had touched her. The school then contacted the Child Protection and Fawkner Sexual Offences and Child Abuse Team. The complainant also spoke to her aunt, MI,[3] and told her that the applicant had ‘touched her inappropriately more than once’.
[2]A pseudonym.
[3]A pseudonym.
On 1 April 2021 the complainant and MI attended the Sunshine police station and a VARE was conducted. A second VARE was subsequently conducted on 6 July 2021.

Arrest and interview

The applicant was arrested on 14 July 2021. In his recorded interview with police, he denied the allegations, stating ‘… it’s ridiculous, that’s never happened,’ and ‘I would never do that’.
The applicant further told the police that the complainant’s mother, BT, might have put her up to making false allegations against him. He said that he had recorded BT threatening him that she would ‘get [her] kids to say that [he] touched them’. That recording was played to the jury and the allegation was put to the complainant and BT in cross-examination.

The evidence

As we have noted, the complainant’s evidence in chief was constituted by the two VARE interviews which she underwent with the police. In addition, she was cross-examined in the course of the special hearing on 14 February 2023.
In the interviews, the complainant’s account of the offending was not given in a chronological order.
At the commencement of the first VARE, the complainant stated that she had been subjected to sexual abuse by the applicant since she was six or seven years of age. She said that the abuse started when the applicant would rub his fingers on her vagina outside her clothing. He then commenced putting his fingers under her clothes and rubbing her again. It ‘slowly graduated over time’ until he inserted his penis into her, and made her kiss it.
The complainant was then asked about the most recent incident. That incident was the fourth incident, that was the subject of charge 12, on which the applicant was acquitted.
The complainant said that the incident occurred at Arbour Place, which was the centre for supervised contact. At the time, she was with her brother, PC[4]. At the time of the incident, she was sitting next to the applicant. PC went into another room, with the lady who was looking after them, in order to get some games. When he did so, the applicant touched her on the chest. The lady then walked back into the room with PC, who was carrying a board game. The complainant said that when the applicant touched her on the chest, it made her feel uncomfortable.
[4]A pseudonym.
In the first VARE, the complainant then described the three incidents, that were the subject of the uncharged acts and which formed part of the tendency evidence adduced in the trial.
The complainant said that the first incident occurred on an occasion when they were staying in a hotel in Queensland. On that occasion, she kissed her brother, PC, on both cheeks. When she went to also kiss the applicant on the cheek, he tilted his head, so that as a result she kissed him on his lips.
She said that the next incident (which was the second set of uncharged acts) occurred on the next evening. On that occasion, the applicant was lying in bed between PT and herself. At the time of the incident the complainant was drifting off to sleep, but she was not fully asleep. She said that the applicant rubbed his finger over her clothing between her legs.
The complainant then described the third occasion which was also the subject of evidence of uncharged acts. That occasion occurred at about 1:00 am on her eighth birthday, 26 May 2017. She said that on that occasion her mother was next to her in bed, and PC was next to her mother. She said that the applicant woke her up and said ‘happy birthday, birthday girl’, and started touching her between her legs. In the second VARE, the complainant elaborated on that incident. She said that the applicant still had his trousers on, but he had the zip down and his penis was outside it. He touched the complainant under her clothing on the vagina using two fingers, and then he put her hand on his penis. She said that the incident went on ‘for a few minutes’ and then stopped, and the applicant went back to the other room.
In the first VARE, the complainant then proceeded to describe the first incident, that was the subject of charges 1, 2 and 3. She said that the incident occurred at the applicant’s house in Sunshine North about nine months before she moved to live with her aunt in March 2020. She said that one night, when her mother was not at home, the applicant called her into a bedroom. When she walked in, the applicant was lying down under a sheet, touching his penis. She could see that he was doing that because the blanket was moving ‘in that area’. When she sat down, the applicant pulled her towards him, got on top of her and tried to put his penis into her. While he was doing so, he rubbed his hands on her chest. The applicant then placed the complainant in a position in which she was sitting on him, and he inserted his penis into her anus. She said that that went on for a few minutes and the applicant then started to kiss her breasts. She said that the incident ended when the applicant got up and went to get a drink. He told the complainant that he loved her and he told her not to tell anyone. She said that throughout the incident she was telling the applicant to stop. After the applicant left the room, the complainant pulled up her pants and underpants and went back into the bedroom which she shared with her sisters and brother.
In the second VARE, the complainant described the second incident, that was the subject of charges 4 to 6, and the third incident, that was the subject of charges 7 to 11.
The complainant commenced by describing the third incident, which she said occurred when she was asleep in the applicant’s bed at the Sunshine North address. She said that on that occasion the applicant woke her up, and his hands were under her pants. She said that he pulled her pants off and also removed his own pants. While he was touching her, he also touched himself. The applicant then pulled her towards him and put his penis into her anus. He then pulled her towards him, put her legs over his shoulders, held her in that position, and started to put his penis into her vagina. He then pushed her head down and forced her mouth around his penis. Having done so, the applicant got her to lie down again. He lay on top of her, and moved up and down while kissing her. Following that, the applicant then went to the kitchen.
The complainant then described the second incident that was the subject of charges 4 to 6. She said that on that occasion she and her baby sister were watching television while sitting on a mattress, but she was half asleep. The applicant took hold of her hand, and guided it, moving it along his penis underneath his clothing. As he did so, he moved a finger up her vagina. The incident came to an end when the applicant stood up and left the room.
The other evidence that was adduced in the trial was of short compass.
The complainant’s aunt, MI, gave evidence that the complainant and PC came into her care on about 20 March 2020. On 17 March 2021, MI attended the complainant’s school, where she was informed that the complainant had told a teacher that the applicant had inappropriately touched her. MI had a very brief conversation with the complainant about it, but she was quite distressed, and did not provide any detail of the touching that had occurred.
The complainant’s mother, BT, gave evidence that the applicant was a friend of a previous partner. When the partner died, the applicant became more friendly with her, and they formed a relationship. In 2016 to 2017, she moved, with the complainant and PC, to Queensland for a few months. During that time, the applicant visited them on about a dozen occasions. After they returned to Melbourne, BT and the children lived in North Sunshine. BT also stated that, as the complainant grew older, Child Protection had involvement with her in 2020. At the same time, BT sent the complainant to live with her grandmother, because she, herself, was having trouble controlling her.
The prosecutor also read into evidence the statements of two witnesses. The first statement was that of the complainant’s grade six teacher, TS. TS stated that on 17 March 2021, a large argument occurred at school at lunchtime, as a result of which a number of the girls in her class were upset. TS took the girls outside and spoke with them about it. After the matter had been resolved, TS spoke with the complainant, who signified to her that there was something more that she wished to discuss. After some questions, the complainant confirmed that her mother’s boyfriend had touched her. As a result, TS arranged that Child Protective Services were contacted and informed about the matter.
The second statement that was read into evidence was that of Dr Andrea Smith, a qualified medical practitioner, with qualifications in Forensic Paediatric Medicine. On 25 March 2021, in her capacity as a consultant paediatrician for the Victorian Forensic Paediatric Medical Service, Dr Smith performed an assessment of the complainant in respect of her allegations that, when she was between the ages of seven and ten years, the applicant had performed penile/vaginal, penile/oral and penile/anal penetration on her. Dr Smith concluded that there were no obvious signs of past trauma to the hymen or the anus. She stated that the complainant’s normal ano-genital examination findings did not exclude the possibility of sexual assault. The cross-examination of Dr Smith, which had been conducted in a voir dire, was also read to the jury, in which, in effect, the witness confirmed that each of the findings that she made were normal.
The other evidence in the trial was given by the two police members, which primarily consisted of the tender of the two VARE recordings and the applicant’s interview.

Appeal against conviction

Ground 1

Ground 1 of the application for leave to appeal against conviction is based on the direction, given by the judge to the jury, concerning the evidence of the three incidents of uncharged acts.

In accordance with s 97(1)(a) of the Evidence Act 2008, the prosecution gave notice to the applicant that it intended to rely on the charged acts, and the three incidents of uncharged acts, in order to rely on, and establish, a tendency of the applicant:
(1)to have an improper sexual interest in the complainant, a female child under the age of 16 years, and a willingness to act on that interest; and
(2)to engage in sexual activity with the complainant.
Consistently with that notice, in final address, the prosecutor submitted to the jury that the evidence relating to the three incidents of uncharged acts in Queensland demonstrated that the applicant had an improper sexual interest in the complainant, who was a child at the time, and that he was willing to act on that improper interest by engaging in sexual activity with her. The prosecutor did not, in her final address, expressly rely on the charged acts as tendency evidence.
The first ground of the application for leave to appeal is directed to an aspect of the directions, given by the judge, in relation to the use, by the prosecution, of tendency evidence.
His Honour commenced that section of his charge by noting to the jury that there were 12 separate charges, and that the jury was required to decide each charge ‘individually’ on the evidence that related to it. The judge then referred to the evidence that was adduced by the prosecution in respect of the uncharged acts, which had occurred in Queensland. The passage of the charge that then followed is the subject of ground 1, and was in the following terms:
Now, you have still got to look at each charge in isolation in a sense, and I will come to something that the Crown are entitled to rely upon in a moment. You could not look at all that material and say, “Oh look, adding all this up, he must be guilty of something” – let’s run or you know or whatever, that would just be totally wrong.
Even if you thought that the accused was the sort of person who would commit a sexual offence, that is a propensity for it, that could not get him convicted. You have to be satisfied of each charge beyond reasonable doubt on the evidence relating to it.
Now, in this particular trial, virtually all the evidence, if you like, comes from the complainant, and as the Crown properly put to you at the start of the trial, they are entitled to use all the material as what is known as tendency evidence, which the Crown do not use the word and we try not to, or more sexual interest evidence.
Now, it is part of the Crown case that on the evidence before you the accused man has demonstrated a sexual interest in the complainant and a willingness to act on that interest. I will not go through the two sides’ arguments, they are quite clear. The defence is here, it did not happen. Any of it, all right. The Crown say you can use it to show that he did have a sexual interest in the child over an extended period and acted upon it.
If you find that the accused had a sexual interest in the complainant and was willing to act on that interest, then you can use that to find it is more likely that another particular offence was committed, subject to what I just said before. The prosecution also says that this evidence sets the scene in which the alleged offences took place. Without the evidence there is a risk that the complainant’s evidence will be incomplete and may even be incomprehensible. Now, a comment from me. In this situation, that is probably the aspect they are relying upon more, but that is all a matter for you.
In support of ground 1, counsel for the applicant noted at that the conclusion of evidence, and before final address, counsel discussed with the judge the need for an appropriate direction to be given concerning the tendency evidence relied on by the prosecution. It was agreed that the directions to the jury should have two components. First, the jury should be directed not to reason that because the applicant was guilty of one charge, he was therefore guilty of the other charges. Secondly, the judge said he would give the jury a ‘propensity warning’ — that is, the jury was to be directed that it must not impermissibly use the evidence to reason that the applicant was the kind of person who was likely to commit the offences charged.
Counsel for the applicant noted that the judge gave the first aspect of those directions in appropriate terms. However, the judge gave the second proposed aspect of the directions in terms, which did not deter, but rather, would have encouraged the jury to engage in impermissible propensity reasoning. In particular, counsel relied on the following part of the passage from the directions, which we have set out above:
Even if you thought that the accused was the sort of person who would commit a sexual offence, that is a propensity for it, that could not get him convicted. You have to be satisfied of each charge beyond reasonable doubt on the evidence relating to it.
Counsel submitted that the judge should have, but did not, instruct the jury that it must not reason, from the evidence of other misconduct, that the applicant was the kind of person who was likely to have committed the offences charged. Instead, it was submitted, the judge directed the jury that, even if they thought that the applicant had a propensity to commit sexual offences, that was insufficient to find him guilty. In that way, it was contended, the direction left open to the jury to use a process of reasoning that his Honour ought to have proscribed.
In response, counsel for the respondent noted that, following the passage relied on by the applicant, the judge instructed the jury that it should keep the tendency evidence in perspective, and that it was ‘only one part’ of the prosecution case. The judge instructed the jury that it was not sufficient to convict the applicant if it found that he committed the uncharged acts or acted on a sexual interest in the past. The judge also repeated the earlier instruction he had given to the jury, that it must not decide the case on the basis of feelings of sympathy or prejudice, and that the evidence of the uncharged acts was only relevant to assist the jury to understand the circumstances that attended the alleged offending.
In that context, counsel for the respondent submitted that the contention, advanced on behalf of the applicant, involved a misinterpretation of the specific direction given by the judge to the jury. In particular, counsel noted that in the impugned part of the direction, the judge specifically directed the jury that the ‘uncharged acts’ (which he identified) could not be used to reason that the applicant was ‘the sort of person who would commit a sexual offence’, and that, even if they thought that, it could not lead them to convict the applicant. Rather, it was submitted, the judge made clear to the jury that it was required to be satisfied, beyond reasonable doubt, of each charge on the evidence relating to that charge.

Ground 1 – Analysis and conclusion

In essence, evidence that an accused person had a tendency to act in a particular way, or had a particular state of mind, may be relevant, and admissible under s 97 of the Evidence Act, for the purpose of proving that, in a particular case, the accused acted in that way or had that state of mind as alleged in the proceeding.[5]
[5]Gardiner v The Queen (2006) 162 A Crim R 233, 260 [124].
In Elomar v The Queen,[6] the New South Wales Court of Criminal Appeal described that process of reasoning in the following terms:
Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning. … Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion …[7]
[6](2014) 316 ALR 206.
[7]Ibid, 278 [359]–[360].
In a case in which the offending is alleged to have been committed against a single complainant, evidence of other sexual offences, perpetrated by the accused against the complainant, or other sexual conduct engaged in by the accused towards that complainant, may be admissible as tendency evidence under s 97 of the Evidence Act as demonstrating that the accused, at the relevant time, had a sexual interest in the complainant, and had, on other occasions, acted on, and according to, that interest.[8] However, such evidence is not to be used in a more general way as demonstrating that an accused person was the sort of person who would commit the offences in question. We refer to this form of reasoning as ‘impermissible propensity reasoning’.
[8]R v Bauer (a pseudonym) (2018) 266 CLR 56, 82 [48]–[49], 88 [69]; see also HML v The Queen (2008) 235 CLR 334, 352-3 [7], 358 [26] (Gleeson CJ); 383-4 [109] (Hayne J); 325-6 [272] (Heydon J); 378 [325] (Crennan J); 494-5 [493], 500 [506] (Kiefel J); JLS v The Queen (2010) 28 VR 328, 334; [2010] VSCA 209 (Redlich JA); PCR v The Queen [2013] VSCA [36]-[37] (Buchanan JA); Gentry v The Queen (2014) A Crim R 106,115-6 [38]-[39]; (Redlich JA).
In the present case, it was accepted that the evidence of the charged acts, and of the three sets of uncharged acts, was admissible in respect of each of the charges in accordance with the notice of tendency evidence, served by the prosecution under s 97(1)(a) of the Evidence Act, namely, to establish that the applicant had an improper sexual interest in the complainant and a willingness to act on that interest, by engaging in sexual activity with the complainant. In those circumstances, the judge, upon request by defence counsel in the case, was required to give the jury appropriate directions in accordance with s 27 of the Jury Directions Act 2015.
In the present case, in which the complainant described a number of separate incidents in which the applicant had engaged in sexual activity with her, there was a significant risk that, in the absence of appropriate direction, the jury might engage in impermissible reasoning to the effect that the evidence of those separate occasions of sexual offending demonstrated that the applicant was the sort of person who would commit the offences that were the subject of the charges under consideration. In those circumstances, it was necessary that the judge give to the jury clear directions, pursuant to s 27 of the Jury Directions Act, that it must not engage in such an impermissible line of reasoning.
In discussions with counsel that preceded the final addresses, the judge correctly identified the need to give such a direction. His Honour informed counsel that he would direct the jury that each charge must be decided on the evidence relevant to it, and, further, that if the jury found the applicant guilty on one charge, that did not mean that therefore he was guilty of another charge, or that the applicant was the sort of person who would probably have committed the offences that were the subject of the other charges.
In final address, the prosecutor, quite correctly, and in accordance with the notice of tendency evidence served on the applicant, contended that the uncharged acts were relevant because they demonstrated that the applicant had an improper sexual interest in the complainant, who, at the time, was a child, and that he was willing to act on that improper interest by engaging in sexual activity with her. In making those submissions, the prosecutor did not, in any form, invite the jury to engage in impermissible propensity reasoning.
It was in that context that the judge gave to the jury the directions, which are the subject of ground 1. On a plain reading of those directions, two points are quite clear.
First, the judge did not, in clear terms, or, indeed, at all, proscribe the jury from engaging in impermissible propensity reasoning. That is, at no point did the judge instruct the jury that, if it were satisfied that the applicant had engaged in one or more of the acts alleged against him, it must not reason that, as a consequence, the applicant was the sort of person who might, or would, have committed the offending alleged against him.
Secondly, and on the contrary, the second and third sentences of the directions, to which the applicant makes complaint, were clearly capable of being understood by the jury as conveying that it was permissible to engage in propensity reasoning. In essence, the judge instructed the jury that, even if it considered that the applicant was the sort of person who would commit a sexual offence, ‘that is [have] a propensity for it’, that consideration would not be sufficient, of itself, to convict the applicant of the charges before the jury. That passage in the judge’s charge was strongly suggestive to the jury that it might use propensity reasoning, albeit that if the jury considered that the applicant had such a propensity, that consideration alone would not be sufficient evidence upon which to convict the applicant.
The fact that the judge had earlier instructed the jury that it must not decide the case on the basis of feelings or sympathy, did not preclude, or off-set, the misdirection given by the judge to the jury concerning propensity reasoning. Rather, as we have discussed, it was implicit, if not explicit, in the impugned directions, that the judge conveyed to the jury that ‘propensity’ type reasoning was a permissible form of reasoning which was open to the jury, albeit that that consideration, alone, would not be a sufficient basis upon which to convict the applicant.
In reaching our conclusions on ground 1, we are conscious that the transcript of directions given by a judge to a jury does not always properly reflect the manner in which the directions were so given by the judge. We would accept that, in fact, the experienced judge, by the impugned passage, would have intended to preclude the jury from engaging in the prohibited form of propensity reasoning. However, unfortunately, the terms in which the judge expressed that direction to the jury were, as we have discussed, quite to the contrary effect.
The issue, raised under ground 1, is not a matter of sheer pedantry, directed to the particular formulation of the direction given by the judge. In the context of a case such as the present, it was of prime importance that the judge give clear and unambiguous direction to the jury, precluding the adoption by it of such impermissible reasoning which, on first principles, would be quite contrary to the just and fair determination by the jury of the charges before it.
In the present case, there was a material risk that, in the absence of clear directions to the contrary, the jury, presented with the evidence of the complainant as to multiple incidents of offending against her by the applicant, might have been drawn into engaging in impermissible propensity reasoning, by concluding that, as a result of that evidence, the applicant was the kind of person who might well have engaged in the particular acts that are the subject of each of the charges against him. For the reasons that we have discussed, the direction given by the judge did not, in clear terms, preclude the jury from resorting to such a form of impermissible reasoning. Rather, the passage in the directions to which we have referred may well have been understood by the jury to be a direction that it was entitled to undertake such a form of reasoning as part of its analysis of the evidence in the case, in a manner that went well beyond a permissible form of tendency reasoning.
For those reasons, it must be concluded that the misdirection given by the judge to the jury was a significant error in the trial. It could not be reasonably maintained that that misdirection had no capacity to affect the ultimate outcome of the trial. The evidence in the trial was not such that, notwithstanding the erroneous direction, given by the judge to the jury, the conviction of the applicant on the charges under consideration was in any event inevitable.[9] Accordingly, as a result of the misdirection, there has been a substantial miscarriage of justice.
[9]Baini v The Queen (2012) 246 CLR 469, 479-482 [26]–[33]; Awad v The Queen (2022) 275 CLR 421, 431-2 [26]–[28], 434 [34], 435 [39] (Kiefel CJ, Gleeson J), 444-5 [76]–[78] (Gordon and Edelman JJ).
In those circumstances, and for those reasons, ground 1 of the application for leave to appeal against conviction must succeed.

Ground 3

Ground 3 is concerned with the directions given by the judge to the jury on the issue of forensic disadvantage arising from the delay by the complainant in making a complaint against the applicant. It is contended on behalf of the applicant that the directions given by the judge contained a number of comments, which undermined the effect of the directions the judge gave to protect the applicant against the forensic disadvantage occasioned by the delay. In particular, it was submitted that the comments failed to comply with the principles, stated by the High Court in McKell v The Queen.[10]
[10](2019) 264 CLR 307 (‘McKell’).
In order to consider the issues raised by ground 3, it is necessary to set out in its entirety the passage of the judge’s direction to which the ground is directed:
In this case you heard the evidence of the doctor. Now, doctors are allowed to give opinions in court because they are experts. As I understand the material here, there is no dispute with what the doctor said. Effectively what she said, and this is me summarising it, is that insofar as the penetrations are concerned you would not expect any forensic material from the squeezing of the breast over clothing, but as far as any penetrations are concerned she said that there were no findings consistent with penetration.
But a year after the event that is normally what happens. As I understood her evidence, very rarely is there anything found. It can heal, all sorts of things. So in one sense it is a nil-all draw. It does not take you anywhere. But in this particular trial, because of the delay in making a complaint, and that is not a criticism of the complainant - we will come to that later on. But because there is certainly in terms of the sexual penetrations a delay of at least a year or so, there can be certain disadvantages suffered by the accused in those circumstances.
Firstly, he loses the opportunity to make enquiries at or close to the time of the alleged incidents. There is no ability to explore the alleged circumstances in detail soon after the offences have occurred. In this situation, and again this is not uncommon with children, it is no criticism of the complainant or the Crown, where the complainant is unable to identify within time frames or things like that it makes it more difficult to raise a defence other than a simple denial.
Because you have got an overall time frame and with kids you understand what that is. And a comment from me, the informant did try and get specifics, question after question, “Was there anything around it, was there anything specific?” That is not uncommon, but the fact of the matter is it makes it more difficult for an accused because they have not got a specific date. It does not mean they were somewhere else, but it takes it out of the equation.
You get a situation here where the complainant, being so young, as counsel for the defence have put to you, her own recollections of events has faded and she may not be able to provide specific detail of the offence or more specific details of the offence. And again a simple denial can become the only way an accused has got to go.
In a situation such as this, that acts as a bit of a double-edged sword, if you like. Bear in mind that she has made the actual allegations when she is 11, which is unfortunate but it is not the Crown’s fault and it is certainly not the accused’s fault. She is not then tested on those for two years. Two years is 20 per cent of her life. So this trial is a little bit different because she has basically been accused of lying rather than just getting it a bit wrong. But that is still a forensic disadvantage which has to be taken into account.
She was not medically examined close to the time of the alleged offence. That may or may not have come up with material, but it did not happen. So material that may have exonerated the accused, or may not have exonerated because you can still have no signs anyway, that was not available. You have also got a situation where it has been put, and this only relates to Charge 12, that some witnesses have not been called and the like. That is a matter for you.
As I understand the situation, what has been led here, there are no statements or anything like that from any of those people. That is the way it is. You accept her version of it or you do not, it is as simple as that. But that is a forensic disadvantage, that there are no other witnesses that potentially could have been at least contacted and there are no other statements. CCTV, I do not know whether you are allowed to CCTV children in that situation. I have got no idea. Anyway, they are all matters that you take into account when you are assessing the situation from the accused man’s point of view.

The submissions made on behalf of the applicant, in support of ground 3, were directed to four specific aspects of those directions given by the judge to the jury.
First, in the context of a direction relating to forensic disadvantage, it was submitted that there was no warrant for the judge to direct the jury that the delay was not the fault of the complainant, and in addition, there was no warrant for the judge to inform the jury that delayed complaints by children are not unusual. Counsel submitted that the comment by the judge, that it was not uncommon for children to delay in making a complaint of offending against them, was capable of conveying to the jury the suggestion that children are more reliable as witnesses for that reason.
Secondly, counsel submitted that the judge’s direction to the jury, that an accused person may be disadvantaged by delayed complaint of alleged offending on an unspecified date, was undermined by the comment added by the judge that, ‘It doesn’t mean they were somewhere else, but it takes it out of the equation’. It was submitted that that comment, made by the judge, served to undermine the important direction given by the judge to the jury concerning the effect of the delay on the capacity of the applicant to defend the charges against him.
Thirdly, counsel submitted that the judge’s direction to the jury as to forensic disadvantage was also undermined by his Honour adding to that direction that ‘…this trial is a little different because she’s basically been accused of lying rather than getting it a bit wrong’.
Fourthly, it was submitted that, contrary to the comment made by the judge, a delay in complaint is not a ‘double-edged sword’. Counsel submitted that it was unhelpful for the judge to liken the delay to the evidence given by the doctor, which he described as ‘a nil-all draw’. In essence, it was submitted that a direction that conveys that an accused person might potentially have derived an advantage as a consequence of a delayed complaint is erroneous. That comment by the judge was another point at which, it was submitted, his Honour entered the arena by making an impermissible comment.
In response, counsel for the respondent submitted that, pursuant to s 39(3)(a) of the Jury Directions Act, the judge gave detailed directions to the jury concerning the potential forensic disadvantage, suffered by the applicant, as a result of the delay in the complaint. In particular, it was noted that the judge gave the following directions to the jury:
•the applicant had lost the opportunity to make inquiries at a time proximate to the alleged offending, and he had thereby been deprived of the ability to explore the circumstances in detail soon after the offences occurred;
•it was more difficult for the applicant to raise a defence other than a simple denial to the allegations;
•the complainant was unable to specify the dates or timeframes for the alleged offending, which made it more difficult for the applicant to investigate the alleged circumstances of the offending;
•the complainant was not able to provide specific details concerning the events, which thus made it more difficult for the applicant to do anything more than make a simple denial to the allegations;
•the complainant was not medically examined at the time close to the offending. Such medical examination might have exonerated the applicant, or might not have;
•there were potential witnesses and possibly CCTV footage, which were not investigated as a consequence of the passage of time since the alleged offending.
Counsel submitted that the judge gave the jury clear directions that it was required to consider those matters when assessing the case. Counsel further submitted that the passages in the judge’s directions, referred to in the applicant’s submissions, did not undermine the forensic disadvantage direction. Rather, his Honour gave appropriate directions that it was not uncommon for there to be a delay in complaint about sexual offending, and his Honour identified, as a matter of general human experience, that the fact that the applicant could not explore specific dates and timeframes did not necessarily mean that those matters would have assisted the defence. Counsel contended that, to the extent that those further directions constituted comments by the judge, they were neither imbalanced nor unfair.
Counsel further noted that it was not particularly clear what the judge meant by referring to the ‘double-edged sword’ when he referred to the young age of the complainant. However, if that passage of the judge’s directions meant that the applicant might have been advantaged by the delay, it was submitted that the judge nevertheless made it clear that the delay and lack of specificity in the complaint operated as a disadvantage to the applicant.

Ground 3 – Analysis and conclusion

In the present case, there was a delay of between eighteen months and two years between the last incident, that was the subject of the charges against the applicant, and the complaint by the complainant to police.
Section 39 of the Jury Directions Act provides for the giving of directions by the trial judge as to the forensic disadvantage to an accused, arising from such a delay, in particular in respect of the accused’s capacity to challenge or adduce evidence, or to conduct his or her case. Section 39(2) provides that the judge may only give such a direction, if the judge is satisfied that there has been a significant disadvantage to the accused in challenging, adducing or giving evidence, or in conducting his or her case.[11]
[11]Robbins v The Queen (2017) 269 A Crim R 244, 270 [186]; [2017] VSCA 288; Slater v The Queen [2020] VSCA 270, [106].
In the present case, it was accepted by the judge that the applicant had sustained such a disadvantage, and accordingly the judge was required to give a forensic disadvantage direction to the jury under s 39 of the Act. That requirement is based on the recognition by the law that, in such a case, in the absence of appropriate direction, a jury may not sufficiently appreciate, and take into account, the potential disadvantage that may have accrued to an accused person as a consequence of the delay in the making of the complaint.
Each of the four points, made by counsel for the applicant in support of ground 3, concerned the content of comments, made by the judge in the course of giving directions to the jury, concerning the forensic disadvantage that had accrued to the applicant arising from the delay in the complaint.
In McKell v The Queen,[12] the High Court considered the principles that should apply to comments made by a judge to a jury. The court noted the risk that comments, which may be unnecessary, may occasion a miscarriage of justice, so that a judge should, ordinarily, be astute to avoid that risk by refraining from making comments that are not required.[13] The court also noted that expressions of opinion by a trial judge, concerning the determination of a disputed issue of fact, are not consistent with the function of the trial judge.[14] In particular, the court stated:
Secondly, there is no little tension between suggesting to the jury what they “might think” about an aspect of the facts of a case and then directing them that they should feel free to ignore the suggestion if they think differently. There is a risk that the jury may actually be swayed by the trial judge’s suggested determination. It would be to maintain an altogether hollow and unconvincing distinction to say that, while a trial judge may not go so far in his or her comments as to create a risk that the jury may be “overawed”, it is nevertheless permissible for a judge to use language that “makes him [or her] appear a decided partisan”.[15]
[12](2019) 264 CLR 307.
[13]Ibid 324 [48].
[14]Ibid 324 [49].
[15]Ibid, 324-5 [50] (citation omitted).
In considering ground 3, the starting point is that, as counsel for the respondent has pointed out, in the course of the impugned passage of the judge’s directions, his Honour identified to the jury a number of aspects in the trial in respect of which the applicant might have sustained some disadvantage as a result of the delay, by the complainant, in making a complaint of the offending by the applicant.
First, the judge pointed out to the jury that, as a result of the delay, the applicant had lost the opportunity to make inquiries at or close to the time of the alleged incidents. As a consequence, the delay made it more difficult for the applicant to raise a defence, other than to make a simple denial to the allegations against him. Secondly, the fact that the complainant had not been able to identify specific dates of the offending meant that the applicant was not able to ascertain whether, at the time of one or more of the alleged acts, he had been somewhere else. Thirdly, the judge noted that, because the complainant was not medically examined at a time proximate to the offending, material which might, or might not, have exonerated the applicant, was not available. Fourthly, the judge told the jury that the effect of the delay was that there were no other witnesses who might potentially have been contacted and (possibly) CCTV footage which might be relevant was not available.
If the judge had described each of the disadvantages, that we have just summarised, in such terms, and without qualification, it could not be maintained that the forensic disadvantage direction was other than appropriate. The gravamen of the complaint made under ground 3 is that, in each of the respects just mentioned, the judge qualified, or added to the description of the particular disadvantage, with a comment, which had the effect of undermining the effect of the direction given by the judge.
In considering that submission, it is important to bear in mind that, as Weinberg JA made clear in his dissenting judgment in Pell v The Queen,[16] s 39 is only concerned with the forensic disadvantage sustained by an accused person as a result of delay, and it has no application to any disadvantage accruing to the prosecution resulting from that delay. Specifically, his Honour stated:
It must be understood that s 39 operates, in its terms, only in favour of the accused. It has no application at all in relation to the prosecution, or any of its witnesses.[17]
[16][2019] VSCA 186, [1005].
[17]Ibid.
The judge’s directions on forensic disadvantage commenced with the passage in which the judge noted that, due to the delay, the lack of any medical evidence supporting the complainant was unsurprising, so that ‘in a sense it is a nil-all draw’.
That comment by the judge implied that while the applicant, in that respect, had sustained a disadvantage due to the delay, equally, he might have gained an advantage presumably because the effect of delay had been to remove any medical evidence, which might have corroborated the complainant’s complaints. While the comment was made in brief terms, in the context of a direction on forensic disadvantage, it was not only unnecessary, but its effect was to undermine the import of the forensic disadvantage direction, which the judge was required to give to the jury under s 39 of the Jury Directions Act.
The comment made by the judge, that a delay in complaint is no criticism of the complainant (or the prosecution), was, again, unnecessary. Although it was somewhat neutral in its effect, it had the capacity to detract from, or deflect the jury from, the aspect of disadvantage identified by the judge, namely, that, due to the delay, and thus the lack of detail in the complaint, it was more difficult for the applicant to do more than make a simple denial of the allegation against him.
In that context, the judge then, correctly noted that the lack of detail made it more difficult for the applicant because of the lack of specificity of any date on which alleged offending occurred. The judge then stated that, ‘It does not mean they were somewhere else, but it takes it out of the equation’. That comment, itself, was innocuous. However, the judge, having again noted that, as a result of the delay, a simple denial may be the only way for an accused to respond, added by observing that ‘acts as a bit of a double-edged sword’.
That comment necessarily bore the inference that, while the delay might have been a disadvantage to the applicant, it might also have been to his advantage. In that way, the comment qualified and detracted from the direction, which the judge gave, and was obliged to give, to the jury, namely, that the lack of specificity, and the effect of the delay on the complainant’s recollection, were factors of potential forensic disadvantage, which the jury should take into account.
As Weinberg JA made clear in the passage in Pell, to which we have referred, s 39 of the Jury Directions Act has no application at all in relation to any disadvantage, arising from delay, which may have been sustained by the prosecution or its witnesses. It is solely concerned with potential forensic disadvantage accruing to an accused person, resulting from the delay in the making of the complaint against that accused. In context, the observation by the judge, that the lack of specificity in the complaint resulting from the delay acted as ‘a bit of a double-edged sword’, was, of necessity, a direction that not only should the jury take into account the disadvantage accruing to the applicant as a result of the delay, but it also was entitled to balance it against disadvantage sustained by the prosecution resulting from the delay.
That point was, to some extent, exacerbated by the judge then proceeding to note the present case was a bit different to other cases, because the complainant had been basically accused of lying, rather than ‘just getting it a bit wrong’. That distinction was not, logically, a basis upon which to qualify the potential disadvantage to the applicant arising from the delay in the complaint. In a case such as the present, in which it is alleged that the complainant had fabricated her complaint, the effect of delay, and the consequent lack of specificity of some of the allegations, necessarily had the potential to render it more difficult for counsel to cross-examine the complainant by reference to appropriate details and the like, and also potentially rendered it more difficult for the applicant to raise positive points in his defence. In particular, in such a case, it may be possible for the jury to attribute errors or contradictions, in the evidence given by the complainant, to the effect of delay, thus undermining the central proposition, advanced on behalf of the applicant, that the complainant had been untruthful in her evidence concerning the incidents that are alleged against him.
It follows from the foregoing analysis that, in combination, the comments, which the judge made to the jury, had a significant potential to undermine the force of the forensic disadvantage direction, which the judge was required to give to the jury under s 39 of the Jury Directions Act.
In a case in which it was accepted that the applicant had experienced significant forensic disadvantage resulting from the delay in the complaint, it was important that the jury be clearly directed on, and properly understand, the aspects of the case on which the applicant might have sustained a forensic disadvantage in defending the allegations made against him by the complainant. It was not for the judge to counterbalance the force of the aspects of disadvantage sustained by the applicant by identifying aspects of disadvantage, which might also have been sustained by the prosecution. By doing so, the comments made by the judge necessarily undermined the efficacy of the important direction, which the judge was required to give to the jury, and thus had the capacity to distract the jury from properly factoring into its considerations the potential disadvantage, sustained by the applicant, in seeking to defend the charges against him.
For those reasons, we are persuaded that the combined effect of the comments made by the judge, in the course of giving the required directions under s 39, was such that they have resulted in a substantial miscarriage of justice as a result of those directions. Accordingly, ground 3 of the application for leave to appeal against conviction must also succeed.

Ground 4

Ground 4 is directed to the section of the charge in which the judge gave directions to the jury, pursuant to s 52 of the Jury Directions Act, concerning the delay in the complaint.
Counsel noted that, at an early stage in the charge, having referred to the evidence relating to the uncharged acts, the judge stated that that evidence might assist the jury in ‘trying to work out’ the complainant’s alleged conduct or state of mind, such as why she might not have done anything about it or made any complaint at that time. His Honour stated that he would be dealing with that matter again shortly ‘as to why children in many situations don’t complain and what the experience of the law has been’.
Later in his charge, the judge returned to that topic, and gave directions concerning the delay of the complaint in accordance with s 54 of the Jury Directions Act. The judge directed the jury that people may react differently to sexual offences, and there is no typical, proper or normal response to a sexual offence, so that some people may complain immediately, whereas others may not complain for some time. The judge told the jury that delay in making a complaint in respect of sexual offending is a common occurrence and there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.
The judge then added to those directions the following passage, which is the subject of ground 4:
Now, common sense tells you that there is all sorts of factors that can arise, especially with a child. They are afraid of the consequences, they are afraid that they will not be believed, break-up a family, in this situation she said to you that, and I keep talking about the police statements, her evidence to you that she was afraid of what her mother’s reaction might be. If you have seen the video, you have probably got a rough idea what might have happened if she had told her. There are all sorts of reasons why a child does not do that, and your own common sense will tell you this. They can just hope it all goes away. They just wish it was not happening, they feel unable to deal with it or complain about it, so particularly with a child, delay in complaint, other than the disadvantage it has, there are all sorts of good reasons why that might be and hers here is that she was just too scared to tell her mum or tell anybody else because the reactions that might occur, so I give you that direction of law in regard to delay.
The comment by the judge, that the complainant was afraid to tell her mother about the conduct of the applicant, was based on some cross-examination of the complainant in the special hearing, in which the complainant agreed that, on 20 March 2020, she was having issues with her mother, that she was ‘a bit worried’ about her mother, and that she had told her grandmother and Child Protection that her mother had choked her to a point that she found it difficult to breathe.
Counsel for the applicant submitted that the directions by the judge, as to the delayed complaint, were impermissible and erroneous for two reasons. First, the judge did not distinguish between his directions of law, and the examples that he gave to illustrate them. In particular, the terms in which the judge outlined those examples would have conveyed to the jury that they constituted directions of law. Further, in giving those examples, the judge endorsed them by reference to ‘common sense’. Thus, it was submitted, the direction given by the judge in that manner left little room for the jury to independently exercise its own judgment in that respect.

Secondly, counsel submitted, children do not represent a special class of complainant. They should not be treated as special or more reliable than other witnesses. It was submitted that the effect of the judge’s directions was to render more credible or reliable delayed complaints by child complainants generally and, thus, those made by the complainant.
In response, counsel for the respondent noted that the judge correctly directed the jury, in accordance with s 52 of the Jury Directions Act, that people may react differently to sexual offences, that some people may complain immediately, while others may delay, that delay in making a complaint in respect of a sexual offences is a common occurrence, and that there may be good reasons why a person may not complain or may delay in making a complaint about a sexual offence.
Counsel further noted that s 52(4A) of the Act provides that, as part of the direction specified by s 52, the judge may give an example of a good reason why a person may not complain, or may delay in complaining, about a sexual offence, which need not have been based on the evidence given in the trial. Counsel submitted that the part of the directions given by the judge, to which the applicant takes exception, was in conformity with s 52(4A). In particular, it was submitted, it was appropriate for the judge to point out that the complainant was a child, which, of itself, might explain why she might have delayed in making any complaint.
Counsel further submitted that the judge did not suggest that children constitute a ‘special class of complainant’ at law, as the applicant has submitted. Rather, the judge adverted both to hypothetical reasons for the delay (including the fact that the complainant was a child) and the specific reasons, given by the complainant in evidence, in order to amplify the direction given under s 52(4), by identifying reasonable possibilities for the delay as a matter of general human experience. Counsel further submitted that, to the extent that the judge’s direction on delay contained comment, nothing was said by the judge which, in the context of the case, carried the risk of distracting the jury from its fundamental task.

Ground 4 – Analysis and conclusion

We are not persuaded by the second point made by the applicant, that the judge, by his comment, conveyed to the jury that children are a special class of complainant witnesses. However, on analysis, there is some substance in the first point relied on by the applicant, concerning the judge’s directions to the jury relating to the delay in complaint.
In his directions to the jury, the judge did not differentiate between the first part of the directions, which reflected the requirements of s 54(4) of the Jury Directions Act, and the examples that his Honour then gave to the jury of reasons why a child might delay in making a complaint of offending. As such, they were not put to the jury by way of comment, but were capable of being understood by the jury as part of the judge’s directions of law.
Most of the examples were expressed in terms which made it clear that they were hypothetical. However, they did include the explanation, proffered on behalf of the prosecution, namely, that the complainant was too scared to tell her mother or anyone else about the conduct of the applicant, because she feared how her mother or anyone else might react. That specific reference, to the reason given by the complainant for her delay in making a complaint, was immediately preceded by the judge informing the jury that ‘there are all sorts of good reasons’ why there may be such a delay in a particular case and, by implication, that those reasons included the reason given on behalf of the complainant. That part of the instructions given by the judge, by combining the required direction under s 54(4)(d), with the reason for the delay by the complainant in the present case, was capable of being understood by the jury as providing a direction of law that the reason, given by the complainant for her delay in making a complaint, was a ‘good reason’.
For those reasons, the first aspect of the criticisms made by the applicant, of the directions given by the judge concerning the delay by the complainant in making a complaint against the applicant, have some merit. However, the delay by the complainant was not directly a subject of any cross-examination of her in the course of the special hearing. Counsel for the applicant did not, in final address, advance any submission to the jury in respect of that delay. As such, it was not a material issue in the trial.
For those reasons, in the context of the case, we are not persuaded that the matters raised under ground 4, of themselves, would be sufficient to constitute a substantial miscarriage of justice. They are, however, relevant to our consideration of ground 6.

Ground 5

Ground 5 is concerned with directions, given by the judge to the jury, concerning an aspect of the cross-examination by defence counsel of BT, which suggested that the complainant might have had a motive to fabricate the complaints against the applicant.
That cross-examination was based on a video recording of a conversation that had occurred between BT and the applicant on 14 September 2020, in which, in the course of an argument between them, BT had threatened the applicant that she would ‘get [her] kids to say that [the applicant] touched them’.
In his interview with police, the applicant himself had, on more than one occasion, stated that BT, in the course of disputes with him, had made statements that he was a murderer, and that he had ‘touched’ her children and was a ‘paedophile’. The applicant told police that his only explanation for the allegations made against him by the complainant, and on which he was questioned by police, was that BT had put the complainant up to it.
In cross-examination at the special hearing, counsel for the applicant asked the complainant whether her mother had told her to say that the applicant had touched her, to which the complainant responded, ‘No, [she] never said anything of the sort’.
It was in that context that the issue of the threat, which BT made to the applicant on 14 September 2020, and which was recorded on the video, was raised, albeit somewhat tentatively, in cross-examination of BT.
In the course of cross-examination, BT agreed that, over the course of time, her relationship with the applicant had deteriorated and ended. She agreed that, on one occasion, on 14 September 2020, she had an argument with the applicant, in which she said to him that she would get her children to say that he had touched them (or words to that effect). Counsel then purported to conclude his cross-examination. At the prompting of the judge, counsel put to the applicant that she had ‘put [the complainant] up to making these allegations’. BT responded to that question by stating, ‘Never, no way, absolutely not’. At the conclusion of the cross-examination, the video recording of the conversation between BT and the applicant on 14 September 2020 was played to the jury. Subsequently, before final addresses, the video recording was tendered as an exhibit in the trial.
After BT had given evidence, the judge raised with counsel some concerns he had about any submission that might be made in final address based on the video. He noted that there were a number of difficulties involved in such an argument, including that, at the time of the conversation in question, BT was only seeing her children on supervised visits, and that, therefore, she had very little opportunity to be able to properly coach the complainant in terms of the evidence that the complainant had given in the trial. The judge specifically cautioned counsel that once a motive to lie argument is rebutted, it is difficult for the defence to regain credibility in the eyes of the jury. Following further exchanges, counsel for the applicant advised the judge that he was not going to advance any submissions in final address that, as a consequence of the video, the complainant had a motive to lie.
In final address, the prosecutor commenced by making submissions in respect of the applicant’s interview with police. He reminded the jury that BT had denied coaching the complainant in the allegations that she had made against the applicant. The prosecutor also referred to the evidence given by the complainant in the special hearing, in which she denied that her mother had told her to say that the applicant had touched her.
In final address, counsel for the applicant, after adverting briefly to the question of ‘concoction’ and referring to BT, reminded the jury that there was no onus on an accused person to prove a motive to lie. Shortly after that, counsel briefly mentioned the evidence of the video recording of the threat made by BT, but he did not advance any argument in respect of it. He reminded the jury that BT had denied the proposition put to her that she had conspired to persuade the complainant to concoct the evidence against him, and that the video recording of BT, threatening the applicant that she would do so, was tendered in evidence. In respect of that evidence, counsel for the applicant told the jury, ‘… basically [BT] I say to you doesn’t add a great deal’.
The directions which the judge gave to the jury, on the issue of the complainant’s motive to lie, and which are the subject of ground 5, were in the following terms:
Now in this trial the accused man, as he is entitled to, has said in the record of interview, he is essentially saying that, “I can’t think of why she’d make this up, everything was terrific between us” he says. “The mother must have put her up to it.” All right? Now, other than that tape that you have got, there is no other evidence of that at all, all right? The mother has categorically denied it, the daughter has categorically denied it and without being critical, it was not actually strongly relied upon in the final address of counsel. It is - a comment from me - a comment from me - there is pretty extraordinary detail to be able to give to a child of 11, particularly when you are only seeing her on supervised visits, according to the defence there is always someone sitting beside you. So there is a real question of possibility on that.
Now that being the case, it is a matter for you what you make of all that, but it was argued, but faintly, comment from me it seems, by the defence and counsel has probably been very sensible in doing that. What I am concerned about is when something like that occurs that the jury misuse it, all right, and I make this really clear. I have already told you and whether it describes a motive to lie, there has certainly been no actual motive put to the child as such, other than that somehow or other your mother told you to say it, but she has definitely been called a liar, there is no question about that. At the special hearing she was, “You’re making this up?” That was effectively what was put to her. No room for error.
But, and this is important, in general terms the motive to lie here is it (sic) that it has been put to her that she has done it for the mother for some unexplained reason. If you accept that is a potential motive, you can use it when you are assessing her credibility, if it is accepted it is a, you know, a real motive, a potential motive, you can accept it as affecting her credibility.
If, on the other hand, you reject the idea that that occurred, you say that has not happened here, how could it, and why would it, you ignore that argument in deciding what weight to give to her evidence. It is for the prosecution to prove beyond reasonable doubt. As Mr Davis has pointed out to you, that the accused is guilty. You can only convict him of the offence if on the basis of all the evidence you are satisfied of his guilt beyond reasonable doubt and this is important. The accused does not have to prove that a complainant had a reason for giving false evidence. The fact that you have rejected that reason, if you do, it is entirely a matter for yourselves, I make that clear, this is one of the concerns for the accused’s point of view, if you reject that, that is not evidence against him that you rejected it. It just goes out of the equation, all right. It is not an admission of anything or anything along those lines. If you reject it, you reject it, end of story, it is out the window. What you then fall back on is whether you accept the evidence of the complainant beyond reasonable doubt. Simpliciter. You do or you do not.
In support of ground 5, counsel submitted that, in the course of those directions, the judge impermissibly made a number of comments to the jury that constituted advocacy on his behalf. Counsel submitted that, in view of the particularly limited extent to which counsel at trial had relied on the issue of the complainant’s motive to lie, the extensive reference by the judge to that point, in his charge to the jury, undermined defence counsel’s final address, was unnecessary, and thus, was damaging to the defence made on behalf of the applicant. In particular, counsel submitted that if the jury was at all attracted to the motive to lie, evidenced by the video recording, and put in cross-examination to BT, the comments made by the judge constituted, in effect, submissions that would have dissuaded the jury from accepting that proposition. Further, it was submitted that the context in which the judge made the comment, and the terms in which he expressed it, had the capacity to unfairly boost the credibility of the complainant and to undermine the account given by the applicant in his interview with police.
In response, counsel for the respondent noted that, in the circumstances of the case, BT had little, if any, opportunity to coach the complainant into making false allegations against the applicant. On 20 March 2020, the complainant had moved to live with her aunt. Between March 2020 and March 2021 (when the complainant first made a complaint), the only contact that the complainant had with BT was during supervised access visits, arranged by a Child Protection agency. The video of the threat made by BT to the applicant was made on 14 September 2020.
For that reason, counsel noted, the judge, in discussions with counsel, had quite properly raised concerns with defence counsel as to whether he was relying on the alleged motive to lie. The judge noted that the tenuous nature of the alleged motive would be obvious to the jury, and that, as a consequence, the jury might draw an inference adverse against the applicant arising from his attempt to rely on it. Notwithstanding that caution, counsel for the applicant made a considered forensic decision to adduce the evidence of the recording, but, in final address, he did not invite the jury to conclude that the complainant had a motive to lie.
Counsel for the respondent submitted that, in those circumstances, in which only limited weight had been placed on the evidence on behalf of the applicant, it was appropriate for the judge to be concerned to ensure that the jury did not misuse the evidence in a manner adverse to the applicant. To the extent that the judge commented on the value of the evidence, his Honour plainly identified those aspects of the directions as comment. Counsel further submitted that, pursuant to s 44L of the Jury Directions Act, the judge correctly explained to the jury that it was the obligation of the prosecution to prove the guilt of the accused, and that the accused did not have to prove that the complainant had a motive to lie. Thus, counsel submitted, the directions, given by the judge to the jury, were adequate and appropriate, and the comments made by the judge could not have damaged the defence, in circumstances in which defence counsel at the trial ultimately did not allege, in final address, that the complainant herself did have a motive to lie.

Ground 5 — analysis and conclusion

It is not in issue that, in the context of the evidence adduced in the trial, it was appropriate, and indeed necessary, for the judge to give the jury a direction in accordance with s 44L of the Jury Directions Act. The issue of a motive of the complainant to lie had been raised by the applicant in the course of his interview with police, and, at the trial, in the cross-examination of the complainant, in the cross-examination of BT and by the tendering of the video recording. As we have noted, in final address, counsel for the applicant did not rely on any argument based on a motive of the complainant to lie, and in particular, based on the proposition that she had been coached by her mother in respect of the allegations that were contained in her evidence.
In the context of that evidence in the trial, it was thus necessary for the judge to direct the jury, in accordance with s 44L, that the applicant did not have to prove that the complainant had a motive to lie, and that throughout the trial, the prosecution retained the onus to prove the guilt of the applicant on each charge beyond reasonable doubt.
In accordance with that requirement, the judge did give such an appropriate direction to the jury. However, it was preceded by the passage in the directions, which is the subject of ground 5, and in which the judge commented on the proposition, made by the applicant in his record of interview, that the complainant’s mother ‘must have put her up to it’.
Two important points must be made in respect of the comment by the judge.
First, as discussed, the comment commenced with the reference by the judge to the account, given by the applicant in his interview, in which the applicant said that he could not think of any reason why the complainant had fabricated the allegations against him, and in which he suggested that BT must have influenced her to do so. In that respect, it is relevant that the prosecutor only touched on the issue in final address to the jury, and that counsel for the applicant did not press any argument based on such a motive to lie. The comment so made by the judge was not directed to an argument that was made by counsel in final address. It was specifically directed to the passages in the applicant’s interview in which he suggested that it was BT who had instigated and contrived the allegations, which the complainant had made against him in her evidence.
The second point, in this respect, is that the comment by the judge was expressed in particularly strong and, indeed, persuasive terms. The judge told the jury that the account given by the complainant in her evidence contained ‘pretty extraordinary detail’, given that the complainant was 11 years of age, that BT was only seeing her on supervised visits, and that at all times another person was sitting beside her.
In that way, in effect, the judge, by his comment, expressed a powerful criticism of the account given by the applicant in his interview, which constituted part of the evidence, which the jury was to consider in its deliberations on the charges before it. In essence, by making the comment in the circumstances, and in the terms, that we have discussed, the judge significantly undermined an aspect of the applicant’s account, to which the applicant had in fact adverted on some four or five occasions in the course of his interview with police.
In the circumstances in which counsel for the applicant had not relied on a motive to lie submission in final address, and in which the prosecutor had not advanced any such reasons for the jury to reject any potential motive, the comment made by the judge was, on any analysis, quite unnecessary. Importantly, it served to undermine the credibility of an aspect of the account given by the applicant in his interview which, as we stated, formed part of the evidence that was before the jury. As such, it had a material capacity to significantly undermine the denials by the applicant of the allegations by the complainant.
In that respect, it is noteworthy that the judge, himself, in earlier discussions with counsel, had correctly cautioned counsel for the applicant about the potential risks of advancing a submission made on the basis of a potential motive to lie. The judge correctly noted that experience has taught that, unless such an argument is made on a strong and cogent basis, there is a risk that a jury, rejecting the proposed motive, might thereby be induced to accept the evidence of a particular witness who is alleged to have had such motive to lie. The direction, that is mandated by s 44L of the Jury Directions Act, is designed to offset any such risk.

The comment made by the judge, which is the subject of ground 5, and which immediately preceded the direction given by the judge under s 44L, did, in our view, enliven that risk. In essence, the comment made by the judge had a real potential to provide cogent and inappropriate support to the credibility and reliability of the evidence given by the complainant.
For those reasons, it must be concluded that the judge’s comment constituted a substantial miscarriage of justice in the case, and, accordingly, ground 5 of the application for leave to appeal against conviction must succeed.

Ground 6

Ground 6 is that a substantial miscarriage of justice occurred as a result of an aggregation of the errors and matters relied on in grounds 1, 3, 4 and 5. In view of our conclusions with respect to those grounds, ground 6 must also succeed.

Conclusion — application for leave to appeal against conviction

For the foregoing reasons, we have concluded that the applicant must be granted leave to appeal against his conviction on grounds 1, 3, 5 and 6, the appeal allowed, and his convictions on charges 1 to 5, and 7 to 11 be set aside. We will order that the applicant be retried on those charges.
In view of our conclusion, it is not necessary to consider the application for leave to appeal against sentence.
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[2024] VSCA 80

1 May 2024