Healy (a pseudonym) v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0162
JOSEPH HEALY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because a retrial has been ordered, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	BEACH, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2024
DATE OF ORDERS:	23 April 2024
DATE OF REASONS:	30 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 81
JUDGMENT APPEALED FROM:	DPP v [Healy] (County Court of Victoria, Judge Smallwood, 17 August 2023) (Conviction); (County Court of Victoria, Judge Smallwood, 24 August 2023) (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Applicant was convicted of sexual offences involving children – Where prosecutor relied on incriminating conduct reasoning – Where no notice was given of intention to rely on incriminating conduct reasoning – Direction to jury not sufficient to ameliorate irregularity – Substantial miscarriage of justice – Appeal allowed – Retrial ordered.

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

Pompei v The King [2023] VSCA 71, discussed; Baini v The Queen (2012) 246 CLR 469, applied.

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Counsel
Applicant:		Ms J Swiney
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WALKER JA
KAYE JA:

The applicant was convicted of four sexual offences[2] concerning two complainants: two counts of sexual assault of a child under the age of 16[3] in relation to DH (charges 1 and 5), one count of sexual assault of a child under the age of 16[4] in relation to EH (charge 2) and one count of sexual penetration of a child under the age of 12[5] in relation to EH (charge 4). He was sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years.[6]
[2]He had been charged with five sexual offences, but the judge directed an acquittal on charge 3, which was sexual assault of a child under 16.
[3]Contrary to s 49D(1) of the Crimes Act 1958.
[4]Contrary to s 49D(1) of the Crimes Act 1958.
[5]Contrary to s 49A(1) of the Crimes Act 1958.
[6]DPP v [Healy] (County Court of Victoria, Judge Smallwood, 24 August 2023) (‘Reasons’).
Following his conviction, the applicant sought leave to appeal against his conviction on a single ground, as follows:
The trial of the Applicant miscarried where the learned Prosecutor relied on incriminating conduct type reasoning in his final address when a) no notice of incriminating conduct had been filed and b) no notice had been given that the learned prosecutor would be relying on such reasoning.
The respondent conceded that the prosecutor, in his closing address to the jury, had made submissions that carried the risk of the jury engaging in incriminating conduct reasoning, in circumstances in which no notice of incriminating conduct had been given by the prosecution, as required by s 19 of the Jury Directions Act 2015. The respondent further conceded that the directions the judge gave did not expressly cover the matters required by s 21(1)(a) of the Jury Directions Act to be covered when giving a direction about incriminating conduct. The respondent contended, however, that the risk of the jury engaging in incriminating conduct reasoning was sufficiently ameliorated by directions on this issue that were given by the trial judge, which were said to be sufficiently strong to ensure the jury did not use the evidence inappropriately or put weight on that evidence that it did not deserve.
For the reasons that follow, at the conclusion of oral argument, we granted leave to appeal and allowed the appeal. In light of the resort by the prosecutor to incriminating conduct reasoning in his final address, and in the absence of compliance with the requirements of ss 19 and 21 of the Jury Directions Act, there was a serious irregularity in the applicant’s trial that was not cured by the directions given by the judge. Furthermore, conviction was not inevitable. In those circumstances this Court was required to set aside the conviction and order a new trial.

Relevant statutory provisions

Section 19 of the Jury Directions Act relevantly provides as follows:
(1)The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence—
(a)a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and
(b)a copy of the evidence on which the prosecution intends to rely.
…
(3)The trial judge may dispense with the requirements of subsection (1)(a) or (b) if—
(a)during a trial the prosecution first becomes aware of evidence of conduct that it proposes to rely on as evidence of incriminating conduct; and
(b)the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct; and
(c)it is in the interests of justice to dispense with those requirements.
(4)If under subsection (3) the trial judge dispenses with the requirement of subsection (1)(b), the prosecution must identify orally to the court and the accused the evidence of conduct that it proposes to rely on as evidence of incriminating conduct.
Section 20 of the Jury Directions Act relevantly provides as follows:
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
…
(2)Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
Section 21 of the Jury Directions Act relevantly provides as follows:
(1)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

The case against the applicant

The offences were alleged to have been committed at the home of DH and EH between 1 July 2017 and 30 April 2020. The applicant lived about six houses away from the complainants, on the same street. He had met SB (the complainants’ stepfather) in 2011. NB (the complainants’ mother) moved to that house in June 2017 with the complainants. SB, who had been in a relationship with NB for a period of time, moved some time after July 2017.
The applicant visited the home of SB and NB regularly from soon after the time that SB moved there. Initially when he started visiting he spent time with SB. However, over time he began to spend more time with DH and EH, playing hide and seek or spending time with them on the trampoline. The prosecution contended that the current offences were committed while the applicant was alone with each of the complainants, and playing these games with them.
The prosecution alleged the following offences against EH between 1 July 2017 and 30 April 2020, when EH was between 8 and 11 years of age:
(a)Charge 2: On an occasion between 1 July 2017 and 20 December 2018, when EH was 8 or 9 years of age, the applicant was visiting the complainants’ home, EH took him into her bedroom to show him her portfolio for school. As she was getting it the applicant came up behind her and rubbed himself against her buttocks. He pushed his hips into her buttocks. She was not able to remember what year that occurred.
(b)Charge 4: On an occasion between 1 January 2019 and 30 April 2020, EH was with the applicant on the trampoline. The applicant had bought EH and DH lollies, and they sat on the trampoline eating them for a period of time. While they were eating them, the applicant told EH to place the lollies up her bottom and pull them out and eat them. DH then went inside the house. While EH was alone sitting on the trampoline with the applicant, he placed his hand into her pants, and into her underwear, and then he inserted his finger into her vagina. He then removed his hand from her pants and placed his finger into his mouth. EH responded by saying, ‘that’s really weird’. She then got off the trampoline and went inside the house. EH recalled that after that incident the applicant did not come into the house or the back of the property. When he visited, he stayed out the front of the house.
As earlier noted, there was a third charge concerning EH, but it was the subject of a directed acquittal.
The prosecution alleged two offences against DH between 1 July 2017 and 30 April 2020, when DH was between 6 and 9 years of age:
(a)Charge 1: On an occasion between 1 July 2017 and 2 November 2019, when the applicant was visiting their home, DH and EH were playing hide and seek with him. DH, who was between 6 and 8 years of age, was hiding with the accused in the shed. EH was looking for them. It was pitch black and DH could not see what was happening. While they were in the shed, the accused placed his hand down DH’s pants and inside her underwear. He kept his hand in her pants, only removing it when they heard EH approach the shed and open the door. DH was unable to remember what month that incident occurred, but she recalled that it happened on a pretty sunny day, probably one to three months after SB moved to live with them.
(b)Charge 5: On an occasion in the last couple of months of 2019, or in early in 2020, the applicant, DH and EH were in the backyard playing hide and seek. The applicant and DH were hiding behind some overgrown plants near the grapefruit tree in the backyard. DH was standing up looking for EH, when the applicant placed his hand down the back of DH’s pants and under her underwear. She responded by grabbing his hand and pulling it out of her pants because she did not like it. Unlike the earlier occasion on which the accused had placed his hand into her pants and under her underwear, on this occasion he placed his hand into her pants from behind and touched her buttocks and vagina.
The prosecution also alleged that in mid-2021, DH told EH that the applicant had been sexually touching her. On an occasion when EH was 10 or 11 years of age, she was sitting on the front lawn with DH when the applicant walked past. DH asked EH, ‘Did [the applicant] ever touched you? [sic]’ . EH replied, ‘Yeah’. DH then said, ‘Yeah. Me too’.
DH and EH told their parents that the applicant had touched them inappropriately on Monday 25 October 2021. On that day the family had learnt that a member of the community in their home town had been accused of committing sexual offences against children. That man ran a lolly shop in the town. NB and SB were inside their home with DH and EH. NB spoke to the girls about the man and asked them to have nothing to do with the man, but asked them to be compassionate towards his children.
After that discussion, NB and SB were in their room and they heard a knock at the door. SB answered the door and spoke to the applicant, who invited SB to come over to his house that Friday. While they were talking, NB went into her bedroom and opened her laptop. While she was looking at her laptop, DH came into her room and said, ‘Mum. [the applicant] touched me and [EH] inappropriately’. NB responded, ‘I fucking knew it’. She then asked DH to get EH.
DH then brought EH into the room, and NB asked her what happened. EH broke down and told her mother what the applicant had done. NB then told DH to go back to her room.
After SB had finished speaking with the applicant at the front of the house, he came inside, and noticed that DH and EH and their mother were crying. SB and NB then went into EH’s room and spoke to both the girls. NB asked, ‘what happened?’. DH responded that ‘it happened more than once’. She told NB that the applicant placed his hand down her pants and touched her vulva. She also told NB that the applicant put his hand down the back of her pants and she pulled his hand away. At that time EH was extremely upset. NB asked her ‘what happened?’. EH replied, ‘I’m sorry mummy’. DH then said, ‘[the applicant] put his finger in [EH]’. NB then telephoned the police to report what the complainants had told her.
In addition to the charged matters, the prosecution also relied on uncharged acts as evidence of context and tendency. In relation to DH that evidence was as follows:
(a)After the applicant started to spend time alone with the complainants, he would play with them, and place his hand down DH’s pants, under her underwear, and move his hand around a bit. DH told investigators that he would do that every time he came around and they played with him. When he touched her, the skin on his hand touched her skin and he moved his hand around her vagina, touching her around the vulva. He did not place his finger into her vagina.
(b)There were occasions when DH and EH were both on the trampoline with the applicant when he would touch them both alternately. When asked when that first happened, DH said that it was probably the second or third time that he came to visit them. However she was not able to remember the details of what happened on that occasion, but said that they were either playing hide and seek or playing on the trampoline.
(c)DH also recalled that the applicant attended at their home at Christmas time when there were a couple of other family members at the house. On that occasion she was with him in the backyard on the trampoline, or in some other location, when he touched her in the same way.
(d)DH said that the applicant never touched her when they were inside the house. He only touched her when they were in the backyard.
In relation to EH, the evidence of context and tendency was as follows:
(a)After the applicant started to spend time with them, EH and DH would play hide and seek with him. While EH was hiding with him, he would touch her when no one else could see. It occurred mostly in the backyard, but sometimes in the shed. She recalled being in the shed with the applicant on an occasion when he got really close to her and touched ‘areas’ and kissed or breathed heavily on her neck. EH said that she was 8 or 9 when he began to touch her in that way. When asked what she meant by touching her ‘areas’, EH pointed to her lap and said, ‘my stomach, my arse, my vagina and my chest’. She also said that the applicant sometimes touched her over the clothing and sometimes under the clothing. EH said that when the applicant touched her vagina, he grabbed it, or touched it, mostly after he put his hand into her pants, but sometimes he touched her vagina on top of her pants.
(b)On one occasion when EH was alone with the applicant, he grabbed her hand and unsuccessfully tried to make her touch him on the genitals.
Following NB’s report to the police, police interviewed EH and DH on 29 October 2021, recording the interviews on videotape.
The applicant was arrested on 2 January 2022, and interviewed at a local police station. During the interview, the applicant said, in summary, as follows.
(a)He met DH and EH when he was with SB and NB. He had met SB in the past when he was working for a neighbour in the same town.
(b)He went to their home to hang out with SB and NB and the girls were there.
(c)He described their home as a one storey house, with a pretty big, overgrown backyard. He also recalled that they had a trampoline.
(d)He said that he used to hang out with EH and DH, and talk to them.
(e)Initially, he was not able to remember if he went on the trampoline with EH and DH. However, he later agreed that he did play on the trampoline with them.
(f)He remembered that he used to play hide and seek in the backyard with EH and DH, but claimed that he was always the one looking for them.
(g)He agreed that EH and DH used to play with his hair a lot, and put it in ponytails.
(h)When he was told that EH and DH had told investigators that he would hide with them in the shed when they played hide and seek, he said he did not remember that. He said that he did not know if there was a shed on their property or not. He later denied that he had ever been in the shed with them.
(i)When asked about the hiding place near the grapefruit tree, he said ‘I didn’t know about that one’.
(j)He did not remember bringing lollies over to their home.
(k)When the alleged offences were described to him, he denied acting in the manner alleged.
(l)He told investigators that his relationship with EH, DH, SB and NB was good, and that they never had any arguments and were easy-going and cool.
(m)He claimed that he stopped going to EH’s and DH’s home, because he had ‘just had enough’ — he needed a break from the girls and SB and NB.
At trial, the prosecution called GC as a witness. GC was a friend of the applicant, and was ‘something of a father figure’ to him. GC gave evidence that around January 2020, the applicant had come to him and had told him that ‘something strange had happened in the greenhouse’, and that ‘something wasn’t right’. When GC asked the applicant what he meant, the applicant explained that he had been visiting SB and his step‑daughters, EH and DH. The applicant told GC that EH had asked him to go down to the greenhouse with her alone, and that he could not work out why she wanted to be alone with him. He told GC that they went into the greenhouse, and that EH ‘went into a trance. She just went stiff, like a mannequin’. The applicant also told GC that this was the second time this had happened.
GC told police that he remembered the words that the applicant used because it was such an unusual conversation and it took him a little while to understand exactly what the applicant meant.
GC’s evidence was that he asked the applicant what he had done, and the applicant said that he ‘just got out of there’. GC asked the applicant, in a ‘stern tone, uncle-wise’ whether he had done anything, and the applicant said no. GC told the applicant never to allow himself to get into a situation where he was alone with young girls, and that he should go and see SB and tell him what had occurred. GC said that the applicant later said, when GC asked him, that he had told SB what had happened.
In the course of EH’s evidence, she was asked about the ‘greenhouse incident’ about which GC gave evidence. She said that it did not happen.

The conduct of the trial

Prior to trial there was an email exchange between counsel for the defence and counsel for the prosecution. Counsel for the prosecution said in that exchange that he proposed to call GC to give evidence ‘on a confined basis’ about the conversation GC had with the applicant, by reference to certain paragraphs of GC’s statement to police. Defence counsel asked on what basis those paragraphs were relevant. Prosecution counsel responded that GC’s evidence would be led ‘out of fairness to the accused’. There was no mention of incriminating conduct. The original prosecution opening had not referred to GC’s evidence, so an amended opening was prepared referring to the evidence of GC. The amended opening did not raise the issue of incriminating conduct in respect of the evidence of GC.

The applicant is a 43 year-old man with an intellectual disability.[7] He was aged between 36 and 39 at the time of the alleged offending. Because of his intellectual disability, he had an independent support person with him during the record of interview. He also had a support person at trial. However, the prosecution and the defence agreed that the jury should not be told that he had an intellectual disability. That was because of concern that this might prejudice the jury. As a consequence, no evidence concerning the applicant’s intellectual disability was called. However, again by agreement, the judge told the jury that the applicant has ‘comprehension difficulties’, and that this was why he had a member of his family sitting with him in court and a support worker. But the jury were told that the trial had ‘nothing to do with mental impairment defences, or anything like that’.
[7]The applicant has been diagnosed with Klinefelter’s syndrome, which indicates a mild to moderate intellectual disability. His IQ is between 54 and the mid-60s: Reasons, [22]–[25].
On 14 August 2023, when the prosecutor was outlining to the judge who was to be called to give evidence and when, he referred to GC. The judge asked who GC was. Prosecution counsel responded that GC was a witness who had ‘popped up out of the porridge’ and who had ‘some relevant bits to say’ and that ‘[o]ut of fairness, I think that he’s a relevant witness’.
On 15 August 2023, before the commencement of evidence, the learned trial judge raised the question of incriminating conduct and asked whether the parties sought any ‘post-offence conduct directions’. Defence counsel observed that there was no notice, and the prosecutor then said he was ‘not relying on any’.
On 16 August 2023 there was a further discussion about GC’s evidence. The prosecutor told the judge that it was his decision to call GC because GC asked the applicant ‘did you do anything’ and the applicant denied it. The prosecutor then said ‘that denial needs to go to the jury’. No mention was made of incriminating conduct.
As already noted, GC was called in the course of the trial. He was led through the relevant parts of his statement. He was cross-examined only briefly by the applicant’s counsel.

The prosecutor’s address to the jury concerning incriminating conduct

Notwithstanding the prosecution’s disavowal of reliance on incriminating conduct, and the proposition that GC was called as a witness out of fairness to the applicant, in his closing address to the jury the prosecutor said this about GC’s evidence:
In late January 2020 [the applicant] comes to [GC’s] house and he says I feel like I’ve been set up and then he gives the detail about [EH] going to the greenhouse and her being standing there like a mannequin. What is the likelihood that [the applicant] has gone to [GC] and blended a story or made up an alternate story that isn’t consistent with the trampoline incident because he’s been told by the mother of the girls — sorry not told. He has seen the mother of the girls take positive action to split them away and he is no longer going there. That is the incident that ultimately I say you can be satisfied, it’s a matter for you, on the evidence triggered him going to see [GC] and having that chat because [the applicant] knows by this stage he could be in trouble, because [the applicant] knows by this stage he’s been doing some things with these girls that he probably shouldn’t have done. That’s why he goes to [GC] and to be fair, [GC] said, I put it to him fairly, what have you done and he said I’ve done nothing wrong. [GC] said you’d better go and tell [SB]. Now, we didn’t hear from [SB] on that issue so I can’t say [SB] said he didn’t come and speak to me. There’s no evidence from [SB] about that but certainly [GC] said that [the applicant] told him he had spoken to [SB].
He returned to GC’s evidence again later in his address, saying this:
[GC’s] evidence, you heard this morning, I basically read it to him from his statement, as you probably gathered … [The applicant] came to him in early 2020. As I said, this was probably, on our chronology, after the trampoline incident that [NB]’s intervened in but rather than saying what the conflict actually involved which was them lying on the trampoline, he’s given this detail about a different incident involving [EH] and a greenhouse. Now we know that the trampoline was converted into a greenhouse according to [NB] later … And I put to you that he could be twisting the trampoline incident and maybe the [EH] inserting the finger incident into a different scenario to put to GC, to try and get some stress off. To try a bit of a mea culpa, this happened, giving a different version consistent with innocence, and then saying when put by GC, 'Did you do anything? ‘No, I didn’t.’ And that makes sense.
He’s under the pump now. He’s had parental intervention whilst they’re rolling around. He’s no longer going to play with the kids. He needs to get it off his chest to someone he trusts, a father figure, and so he has that chat. It’s a matter for you. It occurred after he was effectively banished from the house or certainly some seeing the kids. But if what he said to [GC] was he was being set up, right, those were the words, ‘I’m being set up’, well if the girls are setting him up, why didn’t they complain straight afterwards? Why wait 18 months if you’re setting a bloke up the way that he perceived it. It doesn’t make sense. They weren’t setting him up for anything. Things happened, they happened genuinely the way that the girls described it and there was no set up. Matter for you but I think that’s who I think you should resolve that evidence.
Is this a person who knows they’ve done bad things trying to exculpate themselves to some extent before another adult finds out? Matter for you but I suggest that could well be the way that you resolve that evidence.
During the closing address the prosecutor also referred to the applicant’s record of interview in a manner that invited reliance on some statements in the record of interview as incriminating conduct. Those parts of the address were also relied upon by the applicant as demonstrating an irregularity in the trial. It is unnecessary to set out in detail those matters, because the remarks concerning GC’s evidence are sufficient for the applicant to succeed in his appeal.
Immediately following the prosecutor’s closing address, the applicant’s counsel sought to have the jury discharged. The judge required the defence to close and said that an application for discharge could be made the next morning. Such an application was made, but was rejected by the judge. Rather, the judge considered that the problem could be cured by suitable directions. He indicated to counsel that he would not write out the directions, but would ‘ex temp’ them.

The judge’s directions on incriminating conduct

After refusing the application to discharge the jury, the judge directed the jury as follows:
Now, the first thing I want to deal with this morning relates to matters you were addressed on yesterday by counsel and it gets a tiny bit complicated but it is alerting you to something that you need to be careful of.
There are two aspects of the Crown closing in regard to [the applicant] being aware or being conscious of what might be called guilt. The first one is what he said to [GC], which is not in dispute. The second is what he said in his interview about he was the one who always did the counting and the chasing. Now, he said he would count for 10 seconds. The girls said it would be two or three minutes and there is obviously disputation there. Insofar as that is concerned, I will give you these directions. The situation here is that the Crown are asking you to treat the evidence of that and the evidence of what he said to [GC] as evidence that he believed that he or she committed the offence charged or an element of the offence charged or that he or she had negated a defence to the offence charged. Even if you concluded that he did believe that he committed the offence charged, you must still decide on the basis of the evidence as a whole whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
Now, in addition to that, and I will be going through this in more detail in a moment, I say this and bear in mind that he has comprehension difficulties. There are all sorts of reasons why a person might behave in a way that makes the person look guilty and the accused may have engaged in the conduct, as what he said to [GC] or what he said in his interview, even though he is not guilty of the offence charged and even if you think the conduct makes him look guilty, that does not necessarily mean that he is guilty.
Now the situation here is, partly a comment from me but that is the direction of law I give you, insofar as he always did the counting. As I said to you yesterday, be very, very careful of that in terms of what his state of memory may have been as to why things may have been said. It would be a comment for me, a pretty big call. Now, even if that is the case, it would not be evidence of any particular charge. Do you see what I am saying? Each charge has to be proven individually. So even if you found that that was not true, that he was making that up, it still does not go as direct evidence of any of the charges but the danger here is of course that with somebody of his limited capacity, whether it is not a fib at all, he just does not remember and that is what he thinks happened, all right, so be very, very careful of that one.
The other one is in terms of what he said to [GC] about the circumstances with [EH]. Firstly, what was said there about guilt is that the most that could be made of that would be that something, if you found that it was untrue about the mannequin and she said that did not happen, so there is evidence that it did not happen, if you found that that was untrue and found that it was a deliberate lie, you have to be very careful because all that would be indicative of is that something had happened with [EH], nothing to do with [DH], something happened with [EH] but you do not know what, and it is a big call to jump from something that happened to guilty of either of these two offences. It can only go to some undefined something is wrong, does not necessarily have a sexual connotation to it. So what I am saying is be very careful of that.
They have been put by the Crown, you take them into account but what I am saying to is a comment from me, in this situation, people tell fibs, if it is a fib, for all sorts of reasons and you should not speculate as to why they may have done it but very importantly, in this particular situation, this man is charged with four discrete counts. I think I have already said to you, you cannot have a where there is smoke, there is fire. Each of these individual charges has to be looked at in relation to the evidence on it and looked at individually, not as a where there is smoke, there is fire.

Consideration

As already noted, the respondent conceded on the appeal that the prosecutor had addressed the jury in a manner that carried the risk of the jury engaging in incriminating conduct reasoning. That concession understates what occurred. There was not simply a risk that the jury would use that form of reasoning — they were expressly invited to do so. This is clear from the prosecutor’s concluding remark: ‘Is this a person who knows they’ve done bad things trying to exculpate themselves to some extent before another adult finds out?’ No notice of incriminating conduct had been given by the prosecution, as required by s 19 of the Jury Directions Act. And, again as already noted, the respondent further conceded that the directions the judge gave did not expressly deal with the matters that s 21(1)(a) of the Jury Directions Act required to be covered when giving a direction about incriminating conduct.
In our opinion this course of events constituted a serious irregularity and a substantial miscarriage of justice by reason of prosecutorial conduct. Having expressly told the defence, and the Court, that GC was being called out of fairness to the accused, and that the prosecution did not rely on incriminating conduct, it was entirely unfair and inappropriate for the prosecutor then to address the jury in a manner that invited them to engage in incriminating conduct reasoning.
However, the respondent contended that the judge’s directions were nonetheless sufficiently strong as to ensure the jury did not use the evidence inappropriately or put weight on that evidence that it did not deserve. Thus the real issue in dispute between the parties was whether the judge’s directions were sufficient to ameliorate the irregularity that occurred by reason of the prosecution relying on incriminating conduct in circumstances where no notice had been given under s 19 and where the directions did not expressly deal with the matters required by s 21(1)(a).
In our view, the judge’s directions were not sufficient to ameliorate the irregularity that had occurred. In fact, the irregularity that occurred was incurable, based on the matters set out above. Furthermore, there are additional reasons why what occurred was incurable.
First, the failure of the prosecution to give notice under s 19 of the Jury Directions Act meant that the applicant was deprived of the opportunity to argue that the evidence in question was not ‘reasonably capable of being viewed by the jury as evidence of incriminating conduct’ — a matter of which the judge was required to be satisfied before the prosecution was permitted to rely upon the evidence for that purpose, by reason of s 20(1)(b). That lack of opportunity was not able to be cured by the judge’s direction to the jury.
Secondly, the failure of the prosecution to give notice under s 19, coupled with the correspondence between counsel to the effect that GC was to be called out of fairness to the applicant, meant that the defence was not aware of how the prosecution would later seek to utilise GC’s evidence. This meant that the applicant was deprived of the opportunity to cross-examine GC and other witnesses differently, and that the applicant was deprived of the opportunity to adduce evidence of his intellectual disability, or perhaps other relevant evidence. Those matters, too, were not able to be cured by the judge’s direction to the jury.
In any event, even if the error was capable of being cured by appropriate directions from the judge, in our opinion the judge’s directions fell well short of what would have been required. The judge did not direct the jury in the manner required by s 21(1)(a)(ii) of the Jury Directions Act — namely, that it could treat GC’s evidence as evidence that the applicant believed that he had committed the offence charged or an element of the offence charged only if it concluded both that the conduct occurred and that ‘the only reasonable explanation of the conduct is that the [applicant] held that belief’. This is a particularly important direction when incriminating conduct reasoning is relied upon by the prosecution. If it is not given, the jury are not told about the high threshold that is to be met before this form of reasoning is permissible.
Indeed, the judge’s directions not only failed to comply with s 21(1)(a)(ii) of the Jury Directions Act, they may have exacerbated the problem by confirming for the jury that they could use GC’s evidence as evidence that the applicant believed he committed the offence charged. That emerges in particular from the following statement made by the judge:
The situation here is that the Crown are asking you to treat … the evidence of what [the applicant] said to [GC] as evidence that he believed that he … committed the offence charged or an element of the offence charged or that he or she had negated a defence to the offence charged. Even if you concluded that he did believe that he committed the offence charged, you must still decide on the basis of the evidence as a whole whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
As this Court observed in Pompei v The King, the directions that are specified in s 21 of the Jury Directions Act are required because of the risk that, without proper instruction, the jury might engage in reasoning which is both invalid and unfair to the accused.[8] In the absence of any such direction in this case, and in light of what the judge said to the jury about GC’s evidence, there was, in our view, a material risk that the jury could have misused that evidence without applying those important principles.
[8][2023] VSCA 71, [43] (Beach, T Forrest and Kaye JJA).
It is appropriate, finally, to say something about the judge’s statement that he had not written out the directions he proposed to give to deal with the inappropriate statements that had been made by the prosecutor, but would ‘ex temp’ them. Given the significance of the directions required in relation to incriminating conduct reasoning, it will generally be unwise for a judge to deliver such directions extemporaneously. But that is even more the case where there has already been an inappropriate invitation to the jury to rely on such reasoning. In those circumstances, careful consideration and the development of appropriate directions is called for. It must steadily be borne in mind that an error by a trial judge in his or her directions to the jury may have significant consequences for the accused, the prosecution, the witnesses, the courts, and the members of the jury who have given up their time to perform their civic duty. Judges must take steps to ensure, as much as possible, that their directions conform to the requirements of the Jury Directions Act and the law generally. The best way to do so is to prepare written directions, guided by the accumulated learning found in the criminal charge book produced by the Judicial College of Victoria.

Conclusion

For these reasons, we concluded that there was a serious irregularity in the trial that was not capable of being cured by the directions given by the judge.
We also considered that there had been a substantial miscarriage of justice. That is because, the irregularity — namely the failure to comply with the requirements of ss 19, 20 and 21 of the Jury Directions Act — is such that we could not be satisfied that it did not make a difference to the outcome of the trial.[9] A conviction was not inevitable, on the evidence that was properly before the jury. Indeed, the prosecution conceded as much.
[9]Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59. See also Awad v The Queen (2022) 275 CLR 421, 431–2 [26]–[28], 434 [34], 435 [39] (Kiefel CJ and Gleeson J), 444–5 [76]–[78] (Gordon and Edelman JJ); [2022] HCA 36.
At the conclusion of oral argument, we thus granted leave to appeal, allowed the appeal and directed that the applicant be retried on charges 1, 2, 4 and 5.

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[2024] VSCA 81

30 April 2024