Halford (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0129

XAVIER HALFORD (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

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JUDGES:	PRIEST AP, McLEISH and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2022
DATE OF JUDGMENT:	10 October 2022
DATE OF REASONS:	27 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 234
JUDGMENT APPEALED FROM:	DPP v [Halford] (Unreported, County Court of Victoria, 29 June 2021, Judge Murphy) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Rape – Irrelevant and prejudicial evidence suggesting sexual violence introduced during trial – Whether jury should have been discharged – Whether substantial miscarriage of justice – Whether verdict unsafe and unsatisfactory – Appeal allowed – Conviction set aside – New trial ordered.

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Counsel
Applicant:		Mr D Dann KC
Respondent:		Mr B Kissane KC with Mr T Bourbon
Solicitors
Applicant:	Furstenberg Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
McLEISH JA
T FORREST JA:

Introduction

‘KD’ and the applicant married on 16 October 2008. Years later, KD complained to police that, on the day of her father’s funeral, 24 September 2008 – that is, only three weeks prior to their wedding – the applicant had violently raped her. On 29 June 2021, a jury empanelled in the County Court to try the applicant found him guilty of KD’s rape.[2]
[2]On 16 August 2021, the trial judge sentenced the applicant to four years and nine months’ imprisonment, with a non-parole period of two years and 10 months.
Evidence in the applicant’s trial revealed that KD did not complain to police about her alleged rape until early 2014. The informant’s evidence was that KD commenced to make a statement in August 2014, but her six-page statement was not completed and signed until 9 May 2016. Police did not interview the applicant about the alleged rape until 10 February 2017. He denied the allegation, but was subsequently charged.
Following his interview, more than four years elapsed before the applicant was tried on a single charge of rape,[3] resulting in his conviction.
[3]Crimes Act 1958 (as amended by the Crimes Amendment (Rape) Act 2007), s 38(1).
The applicant sought leave to appeal against his conviction on two grounds:
1 A substantial miscarriage of justice has occurred as a result of a series of events that occurred in the course of the trial.
2 The guilty verdict of the jury is unsafe and unsatisfactory.
At the conclusion of the hearing in this Court on 10 October 2022, we made orders granting the applicant leave to appeal against conviction; allowing the appeal; setting aside the conviction; and ordering a new trial. These are our reasons for those orders.

The prosecution case at trial

KD and the applicant were in their mid-40s at the time of the alleged offence, and were engaged to be married. According to KD, they met in 2006. The applicant purchased, and moved into, a property in Bacchus Marsh that year, while KD remained living in Geelong. They arranged for a seaside wedding to occur in Byron Bay, NSW, in October 2008.
On 19 September 2008, KD’s father died. The funeral was held in a Geelong suburb on 24 September 2008. It was followed by a wake at a hotel in Grovedale, another Geelong suburb. The applicant, who had been working interstate, returned to support the complainant. He and KD, although engaged, were not living together at the time.
KD was close to her father and was, she said, ‘devastated’ by his death. Her account in her evidence at trial was that after the wake she accompanied the applicant to his home in Bacchus Marsh. She gave evidence that she ‘collapsed on the floor’ during the funeral service and was ‘hysterical’ when she arrived at the applicant’s home in the ‘late afternoon’. KD said that she had had two glasses of red wine at the wake.
When they arrived at the Bacchus Marsh residence, KD said, she got a drink of water. KD’s evidence was that she then went to the main bedroom and started to get undressed. She wanted to go to bed, as she ‘was tired, exhausted’. KD took off her dress, and was wearing her underpants, singlet top and bra, when the applicant came into the bedroom. He approached KD and said that, ‘We could have sex, it will make you feel better’. The applicant also said in ‘a nasty tone’: ‘You need to stop crying, he’s not coming back. He’s dead. You need to get over it’. This made KD ‘angry and upset’. She ‘wanted to be left alone and go to sleep’.
KD’s evidence was that she then went into the walk-in robe, closed the door, sat on the floor and put her feet against it. The applicant was pushing on the door, ‘trying to push it open’. KD was using ‘all [her] force’ to keep the door closed. Eventually the applicant got the door open and dragged KD out of the robe by her feet. He grabbed her by the hair to make her stand up. The applicant then pulled her up by the body and ‘threw [her] on the bed’. She was ‘shocked’, ‘hysterical’ and ‘crying’, telling the applicant that she ‘wanted to go to sleep’.
The complainant’s evidence-in-chief continued:
What did he do next?---He got on the bed and sat on top of me.
How were you positioned on the bed?---I’m laying [sic] flat on my back.
And how did he position himself on you?---Across my body, down towards my pelvis, on my pelvis.
Where were his knees?---At the side, either side of my legs.
So, you had one knee either side of your legs?---Yes.
Was he straddling you?---Yes.
Was he clothed?---No, he was naked.
So, when he straddled you, were you doing anything at that time?---I was trying to hit him and kick him. I couldn’t kick him though; he was on me – top of me. I kneed him.
And what did he try and do next?---Open my legs. He put – he put my hands up above my head and held them – and held them above my head, and then he was putting his legs in to try and open mine.
What were you wearing at that point?---Nothing. He tore my G-string off.
When did he do that?---When he threw me on the bed, before he sat on me.
And did you say anything to him when he tore your G-string off?---Yes, I did.
What did you say?---I said – I asked him to stop and I said, ‘That was an expensive pair of underwear, you’ll have to pay for it’. He agreed he would.
And so after he pulled your G-string off, what were you left wearing?---Just my singlet and my bra.
How did it feel when he tore your underwear off?---It hurt.
…
So you have said that he’s holding your wrists above your head with one hand. He’s straddling you with his knees on either side of your legs. You then described that he was trying to do something to your legs. Can you tell the court more detail about that?---He was trying to open my legs with his knees.
And what were you doing when he tried to do that?---Tried to squeeze and – to keep them closed.
Apart from his knees trying to open your legs, was any other part of his body on you?---He, um, then was laying on my chest with his body.
And how did that feel for you when he was lying on your chest?---I couldn’t breathe.
Did you tell him that?---Yes, I did.
What did you say?---I said, ‘I can’t breathe. Get off’.
What else did you say to him?---I asked him to stop. That I didn’t want to have sex. My father just died.
Did the two of you exchange any further words?---I just kept asking him to stop and get off me. That I didn’t want to have sex.
Did he say anything to you?---I don’t recall.
Were you his wife at that time?---No, I was engaged to him.
Did he say anything to you about that?---I made a statement that, um, what he was doing, there’s a four letter word for it and it starts with ‘r’, and it’s called ‘rape’. And he said, ‘No, it’s not, you’re my wife and it’s my conjugal rights’. And I said I didn’t know what ‘conjugal’ meant at the time.
How many times did he say that to you?---Once. I believe once.
Now you said that he was trying to open your legs with his knees. Did he manage to do that?---Yes.
And when he managed to do that how were you positioned and how was he positioned?---I was still on my back and he was – his legs were inside my legs and he spread my legs with his knees.
What happened next?---He raped me.
And how did he do that, [KD]?---Put his penis in my vagina. He forced himself in.
What did you say to him when he put his penis into your vagina?---I asked him to stop. ‘Please don’t’, I begged him to please stop.
Were you doing anything physically at that time when he did that?---I believe my hands were free, so I was trying to punch him and I was trying to push him off me. I couldn’t get him off me, it was too hard.
In what state were you in?---I was hysterical.
How long did he have his penis in your vagina for?---I don’t remember.
When did it stop?---I believe he must’ve ejaculated.
Do you know that?---No.
And what makes you say you believe he must have?---Because he got off me.
How many times did you tell him to stop while he was doing that to you?---The whole time I kept asking him to stop and get off me.
And did he stop at any time?---No.
And what did he continue to do?---Have sex with me.
[KD], did you consent to [the applicant] having sex with you by penetrating your vagina with his penis?---No I didn’t.
Within a couple of days, KD said, the applicant had apologised to her, telling her that ‘he associates sex with love’, and that it would not happen again. They married on 16 October 2008. KD gave evidence that she went ahead with the marriage because she was a Christian, believed in forgiveness and wanted to give the applicant another chance.
In December 2008, KD relinquished her public housing unit in Geelong and moved into the Bacchus Marsh home. She, her son and the applicant lived together until September 2009, when, according to KD, there was a domestic violence incident and police were called. The complainant left the property and moved to the local caravan park. From that time until March 2013 the applicant and KD continued a form of relationship that was described by the complainant as ‘sex friends’.
The applicant commenced divorce proceedings in early 2013. This led to KD placing a caveat over the Bacchus Marsh property. In text messages exchanged at the time, KD accused the applicant of rape. Lawyers became involved but no resolution occurred at that time.
In May 2013, KD took out an intervention order against the applicant. In a statutory declaration in support of the intervention order she made an allegation of rape against him. The divorce was granted and, in 2014, KD complained to police that the applicant had raped her. In 2015, she initiated family law proceedings seeking a financial agreement, those proceedings being ultimately resolved in March 2016.
On 30 March 2016, KD resumed contact with police and completed her statement on 9 May 2016. The applicant was interviewed on 10 February 2017. He emphatically denied raping KD.
The applicant’s defence at trial was that KD’s allegation of rape was false, made in the context of the contested divorce proceeding. It was contended that KD’s motive for making a false allegation was that she was disappointed with the property settlement that she had obtained, which had led to the withdrawal of the caveat. The applicant gave evidence that he had remained in the Geelong area after the funeral and had stayed at KD’s home that night. Self-evidently, the jury must have rejected his account.

Ground 1: The admission of prejudicial evidence

Under cover of ground 1, counsel for the applicant contended that there was a series of ‘events’ (as he termed them) that ‘combined in such a way as to lead to a substantial miscarriage of justice’. The thrust of counsel’s submissions was that inadmissible, prejudicial evidence intruded into the trial — much of it as a result of non-responsive answers by KD to questions asked both by prosecutor and defence counsel — which portrayed the applicant as a recidivist rapist, who, over a number of years, regularly subjected KD to non-consensual sex; and who, when KD sought intervention orders to stop him, defied authority by breaching those orders.
These submissions must be upheld.
When considering whether justice miscarried in the applicant’s trial, it is important to understand that the prosecution had not sought to file a tendency notice.[4] Moreover, the prosecution had ‘conceded’ that evidence of ‘other uncharged criminality’ would not be adduced. Against that backdrop, the prosecutor recognised in pre-empanelment discussion that it would, as a result, be difficult for defence counsel to cross-examine the complainant, and for her to re-examine.
[4]See Evidence Act 2008, s 97(1)(a).
As will be seen, the applicant’s trial counsel made four separate applications to discharge the jury — based to a large extent on a number of the 10 ‘events’ occurring during the trial — each of which was refused.
It is also important to understand that, immediately before the complainant commenced to give her evidence in the trial, the judge in effect instructed her (in the absence of the jury) that she was not to mention that the applicant had subjected her to non-consensual sex on other occasions. The following passage contains the judge’s instructions to KD — who was giving evidence from a remote location — and her responses:[5]
[5]Emphasis added.
HIS HONOUR: … Madam, can you hear me okay? I can.
Yes, thank you. We’re just about to bring in the jury and start your evidence. I just want to say something to you. It appears from your statement and the evidence that you gave at the committal that you’re alleging the accused was abusive towards you throughout your relationship with him?---That’s correct.
Now, you’re only going to be asked today about the event in question, the allegation you’re making about what happened on the day of the funeral and after the wake. So, you’re not going to be asked questions about any other events or abuse that occurred, or you say occurred at any other time, before or after that, and nor should you give evidence, we’re not interested in that?---Okay.
And similarly, we’re not interested in the AVO’s^[[6]] that were put in place by you and by him; that’s not what the case is about. The case is about that event that you’re alleging occurred that night. So, I don’t want you to tread into that other area, that’s just not – not relevant to the issues before us, so if you could not tread over into those areas when you’re being questioned, just listen to the questions that are being asked by both counsel, answer them, but bearing that in mind, okay?---Okay.
[6]This appears to be an acronym for ‘apprehended violence orders’. The correct nomenclature for a similar order under the Family Violence Protection Act 2008 is ‘family violence intervention order’ (whether interim or final).
Well, good. Thanks. All right, we’ll turn you off, call the jury in and then we’ll square [scil, swear] you in again and you’ll be giving your evidence to the jury. And then if at any stage you need a break, then we’ll go for about a half an hour or so, and then we might have a 10-minute break. All right? Okay. Thank you.
[Irrelevant conversation.]
[PROSECUTOR]: Your Honour, I was just talking to my learned friend about the questions that I asked in the voir dire, which were the 342 [of the Criminal Procedure Act 2009] questions about the continuing sexual relationship.
HIS HONOUR: Yes. Yes.
[PROSECUTOR]: I’m just wondering if her reflexive response, despite what Your Honour has said, will be that not all the sex was consensual. I’m just wondering how to manage that? If Your Honour wants to just explicitly tell her, ‘You will be asked a question about consensual sex, you’ve given, you know, evidence this morning that this occurred, that’s the answer that you should give before the jury, or not – not talk about non-consensual sex other than the charged occasion.’
HIS HONOUR: Well, her alleged non-consensual sex.
[PROSECUTOR]: Yes. Yes. Of course.
HIS HONOUR: Yes. Okay, perhaps just bring her back, I’ll just mention that. Sorry, madam, there’s just one other matter that I don’t want you to stray into. You mentioned before in the period after you got married and then before you separated, I think after you separated in October of – September of 2009, that you did have sex [with] the accused man, subsequently you said some of it was consensual and some of it wasn’t consensual. As I say, you’ll probably be asked whether in fact you did have sex after, before it finally ended but we don’t want you to refer to non-consensual – what you allege is non-consensual after – at any time, the issue is about this alleged non-consensual event after the funeral, okay?---Okay. Okay.
All right. We’ll be back to you in a second? Okay.
HIS HONOUR: Bring in the jury, please.
The first, second, third and fourth ‘events’ relied upon by the applicant’s counsel relate to the following passages of KD’s evidence under cross-examination:[7] The first related to an answer which suggested that KD had, on an occasion or occasions prior to the charged incident, accused the applicant of raping her:
[7]Emphasis added to these and following passages.
And on your account, [KD], you have the presence of mind throughout that ordeal, as you describe it, to actually say to him in the middle of this act, ‘There’s a four letter word for this and it starts with R. It’s rape’. Is that right?---Yes.
So you have the presence of mind to spell it out for him what you say is actually occurring at that time, correct?---Because I’ve said it before.
The fourth related to a non-responsive answer to a question in which KD alleged that some of the sex that occurred during her sexual relationship with the applicant was not consensual:
And he made a second application on 2 June 2014 and again you disputed the date of the separation, correct?---Well, it was obvious because the messages are still – we still had contact up until 2013.
Yes. And as you’ve indicated, you were still also having at times a sexual relationship up until that time, weren’t you?---Yes, that’s correct. Yes, that’s correct. And some of it was consensual, some of it wasn’t.
And the second and third events relate to KD’s disclosure of the making of intervention orders against the applicant, and his alleged breaches of them:
All right. So you were hopeful that you could restore the marriage and return to living together, is that right?---Not at – at the end of 2013 when I put the – before that, yes, until the night before - - -
Yes, all right, [KD]?---Until the night before I put the – the – the – the, um, the charge on him to leave me alone, um - - -
All right. I’ll just stop you there?---I can’t remember what it’s called.
So - - -?---EVO [sic], the violence order.
All right.
HIS HONOUR: Just go back to when you got married up at Coffs Harbour, did you have a marriage celebrant on the beach?---Yes.
Yes, go on?---That’s what he wanted.
[DEFENCE COUNSEL]: Yes. All right. [KD], and you just said to the jury, ‘Up until the point that I got an IVO, an intervention order’. He got an intervention order out against you too, didn’t he, in the same year? Do you agree with that?---I don’t remember him getting one out on me.
Right?---I really don’t remember.
Do you remember ever being questioned about breaching the intervention order, [KD]?---I don’t remember.
No, all right. Now - - - ?---He breached it.
As to the fifth ‘event’, defence counsel put to the complainant that, after the breakdown of the relationship, she had made an unwarranted demand in a text message that the applicant pay her $50,000. On the defence case, this demand was part of an attempted blackmail in which KD was threatening to have the applicant charged with rape. Counsel put to KD that she had indicated to the applicant that he was to pay her $50,000 or there would be ‘a hell of a lot more to pay’. KD emphatically denied ever making such an indication. There was, however, a telephone text message in existence which showed that emphatic denial to be untrue. Thus, that part of Exhibit C which related to text messages on 20 April 2013, read:[8]
You said you wouldn’t get nasty and you did last week. Yes and so did I. I want $50,000 to start again. You have everything. I left with nothing. I’m not going for what I could get which is half of EVERYTHING. Balls in your court [applicant].
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Sorry 4.5 yrs married. Although we were living apart we have still had a relationship. as your aware I have already seen a solicitor. I am entitled to half of everything. Including your super. If I have to I will have you charged with assault and raping me. When I said no your forced yourself on me. Cafs^[[9]] have records from when I first left of the domestic violence and rapes, they were the ones that told me it’s not your conjical [scil, conjugal] right. The police were rung the night you lost it and got pissed and terrified my son. Remember you took my phone. I got one of the home phones. [KD’s son] is my witness. You got away with violence before, you won’t with me. I gave up all my belongings etc when I moved up, you owe me so make your choice. $50,000 or a hell of a lot more. Check your facts before you speak I did.
[8]Spelling, syntax and grammar as in original. Emphasis added.
[9]This appears to be a reference to ‘CAFS’ (Child and Family Services), a community organisation.

After KD’s denial of making a demand for $50,000, there was a break. In discussion during the break, the prosecutor referred to s 43 of the Evidence Act 2008, which is concerned with the prior inconsistent statements of witnesses. After the break, KD’s cross-examination resumed, during which defence counsel put the whole of the text message immediately above to her. (In later discussion, she explained that she felt that she was obliged to do so.)
The following morning — KD’s evidence had not been completed by then — defence counsel made the first of the four applications to discharge the jury. She relied on KD’s evidence that the sexual relationship on foot between her and the applicant post-2009 involved sex where there was ‘some consensual, some not’. That evidence, counsel submitted, was likely to be interpreted by the jury as an assertion that the applicant had raped her on other occasions; so, too, her evidence that ‘I’ve said it before’, when referring to having said, ‘it starts with “r” and it’s called rape’. Moreover, KD’s evidence was capable of suggesting that she obtained an intervention order for her protection, but the applicant subsequently breached it, which, counsel contended, insinuated that the applicant is a violent man. Counsel submitted that the impermissible evidence was deliberately volunteered by a witness who clearly had been instructed not to trespass into forbidden areas. Her answers were non-responsive, the questions she was asked clearly not inviting the impugned answers. Counsel submitted that ‘what has so far come out is very dangerous and prejudicial to the [applicant] and impermissible’.
The prosecutor opposed the application to discharge the jury on the basis that some of the evidence was adduced as the result of forensic decisions made by defence. As she somewhat colourfully put it, ‘defence broke quarantine and the virus is out’. More prosaically, the prosecutor submitted that cross-examination on the text message was ‘a forensic decision that let the cat out of the bag’. In any event, she submitted, the cross-examination and re-examination had not been completed, and the judge could direct the jury so as to mitigate any prejudice.
It appears that the prosecutor’s submissions found favour with the judge, who metaphorically said to defence counsel, ‘if you go into that territory you play with fire and you get burnt’, and added that ‘you are bound by a tactical decision that you made, a forensic decision’. In refusing the application, the judge said (among other things) that he would not permit the prosecutor in re-examination to ‘extract … the whole long series of incidents during the course of the relationship’. He said:
I don’t propose to discharge the jury. What’s got to be done now is to – but I don’t also propose to allow [the prosecutor] to, in a sense, extract in re-examination the whole long series of incidents during the course of the relationship. The period between September 2009 and 2013 is really – it’s a red herring in a sense, and that – but it’s been brought in now. The issue is back to what happened in September 08, and whatever comes out, whatever has already come out about that, about the subsequent period is going to be the subject of a context evidence or another misconduct direction to say that it’s really – you’re not to be prejudiced against the accused man associated with it. And the motive – yes, so whatever the non-consensual sex, the intervention order is – you’re not alleging – the prosecution is not alleging propensity, they’re not entitled to allege propensity because they haven’t filed any notice. So it’s just got to be seen, and they get a direction, that what they found must decide the case, not on the basis of prejudice or sympathy, about what you learn about the accused. Because it’s all after the event. This is the problem. …
After the judge’s ruling, the prosecutor suggested that, in preparation for re-examination, KD might be questioned on the voir dire, so that she could give ‘unrestrained’ answers.
In any event, defence counsel then resumed her cross-examination of the complainant. At the end of cross-examination, the voir dire anticipated by the prosecutor was held. That voir dire gave rise to the sixth ‘event’ relied on in this Court. In short, KD gave evidence of instances of multiple rapes and uncharged non-consensual sex (including being raped by the applicant on 30 May 2013), and of a violent incident in which she and her son (who was crying hysterically) barricaded themselves in a room to protect themselves from the applicant, who was trying to bash his way into that room.
Following the voir dire, the judge was obviously troubled. Among other things, in discussion with counsel he reflected:
But just what has come out this afternoon in the … voir dire, there’s, sort of, a volcano there, in a sense, and even in re-examination that’s possibly proposed, and then even once the re-examination is finished, they’re still trying to pull it into shape for a context evidence direction, and maybe I should have acceded to your request this morning, [defence counsel].
…
But look, I think it’s more of an assessment of the prosecution … really whether the accused man is – it’s just unfair to him the way things have opened up – whether he would get a fair trial, particularly when it hasn’t really been when … what’s come out now wasn’t open [scil, opened] to the jury.
We pause to note that, with great respect to the judge, whether the applicant’s trial had become unacceptably unfair was for him to assess, not the prosecution. Although, of course, the judge needed to entertain informed submissions from the prosecution before doing so, the judge did not need the prosecution’s agreement to discharge the jury. It was solely a matter for him as to whether the jury needed to be discharged in order to prevent a miscarriage of justice. As Dawson J observed in Crofts:[10]
Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge’s discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such discharge’ must appear before a discharge will be ordered.[11]
[10]Crofts v The Queen (1996) 186 CLR 427, 432 (‘Crofts’).
[11]See Winsor v The Queen (1866) LR 1 QB 390 at 394; Swinburne v David Syme & Co [1909] VLR 550 at 563, affd David Syme & Co v Swinburne (1909) 10 CLR 43; R v Boland [1974] VR 849 at 866.
Resuming the narrative, defence counsel the next day made a second application for discharge of the jury. In the lead-up to it, there was the following telling exchange between the judge and prosecutor:
HIS HONOUR: That’s when it gets down to the difficulty of the unfairness to the accused in terms of the uncharged acts swamping the charged act. The charged act is a single event, right, and the amount of material that has come in, in a sense, of uncharged rapes or non-consensual sex or – you know, and then at least violence events, the one in the – when they left, in 09, but then – then the AVO, there’s this swamping issue that I mentioned yesterday that – it’s – the narrative just gets unbalanced to try and say to the jury, ‘That’s all context, you’re not to reason – just because of the information you’ve got about all that, that he’s a bad man, or – or be prejudiced against him, just focus on – on the event that the – whether or not the event on the day of the wake occurred or not’; her credibility on that [sic].
[PROSECUTOR]: But that swamping, Your Honour, only came in to this trial through, in my submission, really, a forensic decision made by the defence and I appreciate the difficult position that the defence are in in trying to put their case in a way that tries to navigate around these difficult issues, it’s not an easy task for my learned friend to do that, but for pre-trial, there was an objection made about the prosecution leading any of this, the prosecution conceded it wouldn’t, it’s only come to light through putting that text message, reading it out to the witness and she adopted it, after that, other stuff has flowed.
As part of the application for discharge of the jury counsel for the applicant drew attention to the fact that, prior to the voir dire, KD had never before suggested that she was raped on 30 May 2013. Indeed, no mention of any alleged rape was contained in a statutory declaration made by KD the next day in support of an intervention order.
The judge refused the second application for the jury’s discharge, ruling as follows:
I am accepting the prosecution submission that as a tactical decision or forensic decision, the defence chose to open up the text messages which then led to the evidence that she has given which, apart from the AVO, is really consistent with what was in the text messages. So, it will require a strong context evidence direction in order to ensure that the accused man receives a fair trial.
I will let the prosecutor conduct a further short voir dire in order to clarify the couple of matters that she wants to clarify. I would invite her not to use the term, ‘multiple’.
In the result, KD was once more examined on the voir dire. She gave evidence that the applicant had violently raped her on 30 May 2013. Further, she gave evidence about further instances of alleged rape that had apparently been disclosed to the prosecutor in conference on the day that the jury was empanelled. These were incidents — said to have occurred more than once — in which there was non-consensual sex in circumstances where the complainant said she ‘gave in’.
We pause once more to note that defence counsel did not seek to cross-examine KD on the alleged rape on 30 May 2013, and that this was said in this Court to be the seventh ‘event’.
Following the second voir dire, the prosecutor re-examined KD before the jury. We set out parts of the re-examination in moderate detail so that the true effect of the evidence may be appreciated. Its perusal reveals that the prosecutor adduced evidence of multiple instances of rape; many occasions between 2009 and 2013 when KD would say no, and attempt to resist, before giving in to the applicant (which the jury would have understood to constitute rape); occasions when KD said no to sex but the applicant would not listen; and instances when KD gave in to the applicant because saying no would not have ‘made any difference’ to him:
And you’ve also talked about how during that period after you left the house in 09 to when the relationship finally ended in 2013, you were ‘sex friends’ I think was the term you used?---Yes.
So, that just meant that there was a continuation of a consensual sexual relationship during that time as well?---Not consensual all the time, but yes.
...
… You said that between when you left in 09 and when the relationship finally ended in 2013, there was an off and on relationship?---Yes.
There was a relationship for the benefit of the children; that you wanted them to keep a relationship and seeing each other?---Yes.
But in that time, you also continued a sexual relationship from time to time with [the applicant] as well?---Some of that relationship was sexually – I was reluctant.
…
Do you remember, [KD], a couple of days ago [defence counsel] reading some text messages out to you?---Yes.
And do you remember when she read a text message to you, where you agreed you sent a text message to [the applicant] saying, ‘CAFS have records from when I first left of the domestic violence and rapes, they were the ones that told me it’s not your conjugal right.’?---Yes.
Now in that text message you refer to ‘rapes’ in the plural, is that right?---Yes.
Now you’ve given evidence that on the day of your father’s funeral [the applicant] raped you?---Yes.
And you’ve said that at no stage did you provide consent for him to do that?--- That’s correct.
And at no stage did you give in and let him have sex with you?---That’s correct.
He did – you say he did have sex with you, but you didn’t give in, you understand?---Yes.
Now you also gave evidence, I’m not sure if it was yesterday or the day before, but certainly you have in the last few minutes that despite a sexual relationship continuing with [the applicant] up to May 2013, some of the sex you had with him, you’ve said, was not consensual?---That’s correct.
So, what I want to ask you is, what you mean by this other sex – I’m not talking about the day of your dad’s funeral – the other sex that you say that happened that were rapes or non-consensual, alright? I’m just going to ask you a few questions about that, okay?---Okay.
What do you mean when you talk about these other – the other sex you had with him which were rapes or non-consensual sex?---I was reluctant to have sex with him on occasions between 2009 and 2013.
On these other occasions did you say no to him?---Yes.
And then on these other occasions, what would topically happen?---Which ones? The ones when I said no?
Yes?---I just gave in like I had before.
You mentioned the word ‘reluctant’ before?---Yes.
So, were these occasions of reluctant sex; you didn’t want to have it, you said no, but you gave in?---Yes.
And why did you give in on these occasions?---Because – it was a behaviour with me that I just gave in to – to just get it over with because I knew if I said no it wasn’t going to make any difference anyway.
And on these occasions was there any physical resistance by you before you ‘giving in’?---Yes.
And so, when you refer to ‘rapes’ in the plural, and non-consensual sex occurring between 2009 and 2013, is this the type of sexual encounter you’re describing?---That I would say no, and I would give in, is that what you mean?
Yes?---Yes.
And is this a very different event to the one you say happened on the day of your dad’s funeral where your evidence at no stage did you give in, and at no stage did you give consent?---That’s right.
...
... So, I’m asking you now about the sex where you’ve given in?---Yes.
Did that occur while you were living with [the applicant] in Bacchus Marsh?---Yes.
Did it occur before you were married?---No, on – no, I – I – I don’t believe it did.
And between the time you were living with him in Bacchus Marsh and the time the relationship finally ended in 2013, would it be correct to say that this sex where you would just give in occurred on many occasions?---Yes.
…
I’m just trying to figure out the time of [the text message], 26 April 2013 at 12.15 in the morning, it says there 00.15?---Yep. Yes.
...
Now, is that a message sent from [the applicant] to you?---Yes.
Now, in that message, does [the applicant] state, ‘I asked for the divorce to shock you, as I thought you were the problem’?---So – um, yes.
And a few lines down from that did he then say, ‘I hope that I can fix my behaviours and one day win you back again and do it right?---Yes.
The eighth ‘event’ relied upon in this Court was the introduction of the text message in re-examination where the applicant had said, ‘I hope I can fix my behaviours’.
Following KD’s re-examination, defence counsel made her third application to discharge the jury. Counsel argued that it had been unfair to introduce the text message, ‘and it really could be used [by the jury] as a type of admission’. The prosecutor submitted it was introduced for the purpose of ‘balance’. Refusing the application, the judge ‘agreed’ with the prosecutor.
The ninth ‘event’ occurred when two ‘complaint’ witnesses apparently made statements about uncharged rapes. One of those witnesses was ‘RK’, a friend of KD’s. It appears that the prosecutor and her instructing solicitor had a ‘witness conference’ with RK prior to RK being called to give evidence. RK had made a police statement in which she described a complaint of rape that KD had made to her. She also had given evidence in committal proceedings. After having conferred with RK, the prosecutor informed the judge that (among other things) RK in conference had ‘talked about jumbling matters together’. The prosecutor then suggested that another voir dire be held to examine RK.
In the resulting voir dire, RK gave evidence of a second alleged complaint that was not referred to in her statement to police. According to the prosecutor, this late development in the trial put the parties in a ‘pickle’. Following RK’s evidence on voir dire, there was the following discussion:
[PROSECUTOR]: So, Your Honour, the parties are in somewhat of a pickle. … So we wanted to raise it with Your Honour. My learned friend put to the complainant what this witness said in her statement and what she said at committal, which was that in relation to – if I can call it the, ‘Funeral rape’, that the complainant told her that he had raped her and the kids have listened to the whole thing. … So that’s out there. That’s in front of the jury by way of puttage to the complainant. Presumably the complainant denied it. Now, the witness, [RK], has come to court today and said, ‘I’ve conflated that with another incident of sexual assault because there are two that stand out in my mind,’ and she’s described the funeral incident as being one where she doesn’t have a memory of being told that the children were present, or at least the son was present. … Then she talks about a second incident which is not the funeral one, where apparently [KD’s son] was putting his hands over [KD’s daughter’s] ears so she didn’t hear what was happening. … So my learned friend, understandably, wants – because it’s already out there she’s put it to the complainant, wants to put to this witness, ‘Well, you said this in your statement and you said it at committal’. I understand that. The problem then is that we have an explanation for why she’s done that, but the explanation is perhaps an unsavoury one going into areas which the prosecution has been trying to avoid this whole trial.
HIS HONOUR: So, what’s the explanation?
[PROSECUTOR]: The explanation is she’s conflated [two] incidents. … She’s confused and, of course, she’s told us how she, you know, has dyslexia and anxiety. She was very confused at the committal and also the broader context of, ‘Well, she was coming over to my place frequently because of’ – if I can paraphrase, ‘Domestic violence and abuse.’ … She has an explanation for why she’s conflated them. All the prosecution want from her really, is to say a date proximate to the father’s death and funeral, ‘The complainant told me that the accused raped her’. … But we also have to restore or attempt to restore, rehabilitate her credibility after it’s going to be suggested she said something completely different in her statement, and she’s now saying something completely different to the court. And we’re at an impasse. We’re wondering if something can be done by agreement.
It will be observed from the foregoing passage that RK had given a version of a single alleged complaint made to her by KD concerning the charged rape in which she had said — contrary to KD’s version of the event — that KD’s children had listened to the whole episode. Very significantly, defence counsel had cross-examined KD on the apparent inconsistency between what she had told RK and her evidence of the critical event. Indeed, it is clear that in cross-examination defence counsel specifically questioned KD about whether she had told RK that the two children were present in the house on the night that the applicant raped her.
In this Court, counsel for the applicant submitted that trial counsel was put in an invidious position. As counsel said in discussion with the judge, she had ‘already put various things to the complainant based on [RK’s] statement and her committal evidence, where there had not been a suggestion of disability or anything along those lines’.

When RK gave evidence before the jury, the prosecutor specifically led from her that when KD complained to her of the alleged rape on the day of her father’s funeral, KD had not said that her son or anybody else was present in the house. Defence counsel cross-examined her on her statement and committal evidence, and the prosecutor re-examined. It is clear that in the course of that evidence RK asserted that, apart from the sexual activity on the day of her father’s funeral, KD had complained to her of another alleged rape.
The tenth (and final) ‘event’ relied upon by counsel for the applicant concerns what was contended to be the ‘unfair manner’ in which the prosecutor cross-examined the applicant. It arose as follows. In his record of interview with police, the applicant had said he could not remember if he went to KD’s father’s funeral. When cross-examining the applicant at trial, the prosecutor put to him that, at the time of the record of interview, he knew that KD had ‘previously alleged to [him] that [he] had raped her on the night of her dad’s funeral’. In answer, the applicant said he could not remember. An unidentified document was then put into his hands to ‘refresh his memory’. That having been done, the applicant agreed with the proposition that ‘prior to walking into that record of interview [he] had previously been made aware of an allegation made by [KD] that [he] had raped her on the night of her dad’s funeral’, and that he had become aware of that in 2013.
Defence counsel objected to the cross-examination. In discussion, it became apparent that the document put into the applicant’s hands by the prosecutor was the statutory declaration made by KD in support of her application for an intervention order in 2013. References to that statutory declaration had, however, been excised from the record of interview prior to its tender in evidence.
Addressing the prosecutor (in the absence of the jury) during discussion of the objection, the judge said that ‘the sting of your question is that his response in the record of interview has been selective, and effectively, he’s lying in the record of interview about his lack of awareness of a previous allegation’, whereas defence counsel ‘is saying is that it was in the record of interview, but it has come out’.
It was then that defence counsel made her fourth application to discharge the jury. The judge refused. He said:
I’m going to stop the questioning. That line of questioning. Because it does, in circumstances where he can’t – or defendant counsel [sic] won’t be able to rehabilitate his credibility by referring to [the excised portion] then it’s unfair to him at that point. So, I’m going to stop the line of questioning. … And just tell the jury to ignore that document, because they’re not going to see it anyway.
Although the judge went on to say that he did not ‘accept that the damage is done’, counsel for the applicant in this Court submitted that, by that stage, irremediable damage had indeed been done. The cumulative impact of the ten ‘events’ had led to the trial becoming unacceptably unfair.
Ultimately, the applicant’s counsel in this Court submitted that a substantial miscarriage of justice had resulted. Whether due to ‘the chaotic nature of this trial’; the amount of highly prejudicial evidence placed before the jury; the failures to discharge the jury; or the impossible positions that the applicant’s counsel was placed in, ‘far too many things went wrong during this trial to allow this conviction to stand’.
In oral submissions, senior counsel for the respondent acknowledged that, to some extent, the applicant’s trial had gone ‘off the rails’, but he submitted that the derailment had resulted from defence counsel’s conduct. Somewhat optimistically, senior counsel submitted that the evidence of rapes other than the one charged had effectively been ‘neutralised’ by the prosecutor’s re-examination of KD and the judge’s directions to the jury.
Ground 1 must succeed. In our view, multiple errors and irregularities in, or in relation to, the trial, occasioned a substantial miscarriage of justice.[12]
[12]See Criminal Procedure Act 2009, ss 276(1)(b) and (c).
The prosecution did not rely on the applicant’s tendency to rape or sexually assault KD as proof of the charge on the indictment. Nor did the prosecution rely on the other rapes or sexual violence described by KD in her evidence to establish relationship or necessary context. Hence, KD’s repeated reference to other sexual misconduct permitted irrelevant, but highly prejudicial, evidence to intrude into — and pervade — the trial.
In Crofts, the appellant was convicted of one count of committing an indecent act with a child under the age of 16 years, and four counts of sexual penetration of a child between the ages of 10 and 16, involving the same complainant. Apart from the charged offences, the complainant alleged that she had been the victim of other sexual offences perpetrated by the appellant over some time. The trial judge ruled the evidence of these other offences to be inadmissible under the rules governing the admissibility of propensity evidence. He recognised the danger of the emergence of such evidence in the course of the trial, but indicated that he would deal with such an eventuality if and when it occurred. The judge also cautioned the prosecutor to take care to avoid the inadvertent admission of such evidence. In re-examination, however, the complainant said that a particular aspect of the sexual offending ‘happened many times but [she] never had the opportunity to do anything about it’.
Trial counsel for the appellant in Crofts immediately sought the discharge of the jury. He contended that the introduction of the evidence was not accidental but deliberate, and that the prejudice to the appellant caused by its introduction could not be eliminated by an appropriate direction from the trial judge. The trial judge refused to discharge the jury, but warned the jury to exclude from their consideration any complaints that may have had a ‘broader compass’. In the Court of Criminal Appeal, the appellant argued that the prejudice he had suffered by the questions and answers in re-examination of the complainant was so serious that a general direction of the kind given was inadequate to repair that prejudice. As a result, the discretion to refuse an order discharging the jury had miscarried, resulting in a miscarriage of justice.
In the High Court, the majority (Toohey, Gaudron, Gummow and Kirby JJ) observed:[13]
[13]Crofts, 440–2 (emphasis added).
The Court of Criminal Appeal rejected this submission. It acknowledged that the trial judge had a discretion; that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity:[14]
The question is whether in the circumstances ... there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury? ...
His Honour obviously thought that any prejudice to the applicant which the complainant's answer might have aroused could in the circumstances be overcome by the warnings which he in fact gave to the jury. We cannot say that he was wrong in so concluding.
It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?[15] In our view, in the particular circumstances of this case, that could not be said.
The peculiar importance of the reference to other events of the kind described by the complainant will be appreciated when it is realised that four of the five counts upon which the appellant was convicted by the jury (counts 4–7 inclusive) were the only ones in the presentment, with the exception of count 9, which alleged sexual penetration. There was therefore a clear reference by the complainant, in the presence of the jury, to the ‘usualness’ of the appellant’s conduct, including penetration, which went beyond the matters upon which the prosecution had elected to charge him. This was contrary to the judge’s ruling at the outset of the trial. It might be inferred that appropriate instructions would have been given by the prosecutor to the complainant to conform to that ruling. The statements were also highly prejudicial and inflammatory, especially as they came at the end of the complainant’s testimony. They would have been left vividly etched on the mind of the jury over the long weekend adjournment which immediately followed.
There are two other considerations which do not appear to have been taken into account, or adequately taken into account, in the Court of Criminal Appeal’s decision on this point. The first is that it was specially difficult in this case for the judge to fashion a direction to the jury which would help them to eradicate from their minds the highly prejudicial statement of the complainant. It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account. The difficulty in this case was that the judge could not, and did not, refer specifically to the evidence which was so prejudicial because to do so would have reinforced the prejudice. In some cases it is possible for the judge to refer to the inadmissible evidence and to explain why it must be excluded. That course was not open in this case and for that reason was not followed.
Furthermore, there is no indication that proper weight was given to the fact that the objectionable evidence followed an apparently deliberate course of questioning by the prosecutor when it was plain that he was on most perilous ground. In the lead-up to the offending evidence, counsel for the appellant repeatedly objected to the prosecutor’s questioning of the complainant on general sexual matters. Repeatedly, he stated that the questions did not arise out of his cross-examination. Clearly, he was alert to the danger of opening up the very evidence of similar facts which had led to the preliminary ruling at the commencement of the trial. His objections would have alerted the prosecutor. Yet the latter pressed on and ultimately came to a question of such generality (‘Over the years that he was doing these sexual things to you …’) that it was bound to lead an inexperienced lay witness into answers of generality. The very last question (‘Did that happen again?’) was as deliberate a question as could be imagined to open up the answer that, inevitably, followed. The application for discharge was immediately made. The trial was then in its second day.
With all respect to the trial judge and the Court of Criminal Appeal, a proper consideration of the factors relevant to weighing the prejudice to the accused, the danger to the fairness of the trial and the risk that such danger could not be eradicated by instruction to the jury necessitated, in this case, an order of discharge. Otherwise, the Court would sanction a real risk that the appellant might have been convicted on the basis of the prejudicial evidence about sexual misconduct ‘many times’. This was not charged in the counts of the presentment. It was of a different character to the counts on which the appellant was acquitted. And it was produced by questioning which appears to have been deliberate and fraught with the danger of producing the result that predicably ensued
[14]R v Crofts (unreported, 8 May 1995) at 8–9; R v Boland [1974] VR 849 at 866.
[15]Glennon v The Queen (1994) 179 CLR I at 8–9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521.
In our view, it is unnecessary to go through each ‘event’ seriatim, and to decide whether any one of them individually might have led to a substantial miscarriage of justice, since it is clear that the intrusion into the evidence of KD’s multiple assertions that she had been raped by the applicant, and that he was subject to (and breached) intervention orders for her protection, swamped the trial. Quite plainly, the very great prejudice occasioned to the applicant was incurable by direction. The judge should have recognised that this was so and discharged the jury. We find ourselves unable to conclude that, but for the admission of the inadmissible evidence, the applicant’s conviction was inevitable.
The first ground had to be upheld.

Ground 2: Is the verdict unsafe and unsatisfactory?

In contending that the verdict is unsafe and unsatisfactory — that is, that it is unreasonable or cannot be supported having regard to the evidence[16] — the applicant’s counsel relied on 16 ‘aspects’ (as he termed them) which, he submitted, combine in such a way that any properly instructed jury, acting reasonably, would be compelled to have a reasonable doubt about the applicant’s guilt.
[16]Criminal Procedure Act 2009, ss 276(1)(a).
In summary, those aspects were:
·    first, the fact that three weeks after the alleged violent rape founding the charge on the indictment KD married the applicant;
·    second, KD’s repeated suggestions in evidence — there volunteered for the first time — that following the violent rape the applicant had offered to give her whatever she wanted if she did not have him charged;
·    third, KD’s provably false allegation that she had made a complaint about the charged rape to the CAFS (‘Child and Family Services’) organisation within a week after allegedly being raped;
·    fourth, KD’s ‘highly implausible’ evidence about the alleged circumstances of the rape;
·    fifth, the complainant’s evidence as to her condition in the months after the alleged rape — to the effect that for three months she rarely got out of bed — contradicted by other evidence;
·    sixth, gaps in the complainant’s memory of the alleged rape, which defied credulity;
·    seventh, other gaps in the complainant’s memory, which also defied credulity;
·    eighth, KD’s evidence as to property and financial negotiations at the end of her relationship with the applicant, which showed the threat of rape having been used as ‘leverage’;
·    ninth, KD’s motive to lie;
·    tenth, the timing of KD’s statement to police;
·    eleventh and fourteenth, significant inconsistencies in the versions given by KD to various ‘complaint’ witnesses;
·    twelfth and thirteenth, evidence that suggested that the applicant remained in Geelong, rather than Bacchus Marsh, following the funeral;
·    fifteenth, the lack of any independent evidence supporting KD’s allegation that she had been raped on the day of her father’s funeral; and
·    sixteenth, the applicant’s consistent denials in his interview with police and in his evidence — given by a man of good character — that he had raped KD.

Consideration of this ground requires this Court to ask itself whether it thinks that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Thus, in M, the majority (Mason CJ, Deane, Dawson and Toohey JJ) said:^[17]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[17]M v The Queen (1994) 181 CLR 487, 493, 494–95 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted) (‘M’).
In Pell, the High Court once more endorsed the approach in M, and said:[18]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[18]Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted) (‘Pell’).
Consistently with Pell, this Court must proceed on the assumption that — notwithstanding the arguments put at trial concerning her lack of credibility and reliability — the jury assessed KD’s evidence as being credible and reliable. We consider that it was open on all of the evidence to be satisfied beyond reasonable doubt of the applicant’s guilt. Although, given the evidence — particularly the circumstances in which KD came to complain to police, and the evidence suggesting that the applicant may have been in the Geelong area immediately following the alleged rape — the jury might have acquitted the applicant, we do not consider that their verdict is unreasonable or unable to be supported having regard to the evidence.

There can be little doubt that the jury’s consideration of the case, and their verdict, was infected by the irrelevant and prejudicial evidence that inundated the trial. Presumably, at any retrial, such irrelevant and prejudicial can be quarantined. If it cannot be, the trial judge will need to take any necessary steps to ensure that a substantial miscarriage of justice is not repeated.
We would not uphold the second ground.
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[2022] VSCA 234

10 October 2022