Irwin v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0160

MARK IRWIN	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST AP, SIFRIS and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2022
DATE OF JUDGMENT:	14 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 218
JUDGMENT APPEALED FROM:	DPP v Irwin (Unreported, County Court of Victoria, 25 June 2021, Judge M P Bourke) (Conviction)

---

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Indecent act with child under 16 – Whether prosecutor’s final address occasioned a substantial miscarriage of justice – Defence denied leave to cross-examine complainant as to sexual activities – Sexual activities may have provided alternative explanation for complainant’s knowledge of location of charged acts – Prosecutor emphasised lack of alternative explanation in closing address – Closing address unfair in light of denial of leave to cross-examine – Appeal allowed – Re-trial ordered.

CRIMINAL LAW – Appeal – Conviction – Whether verdicts unreasonable or cannot be supported by the evidence – Whether various factual inconsistencies such that jury ought to have entertained reasonable doubt – Verdicts open to the jury.

---

Counsel
Applicant:		Mr D Dann KC with Dr M Fitzgerald
Respondent:		Ms K Hamill
Solicitors
Applicant:	Doogue + George
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
SIFRIS JA
WALKER JA:

Introduction

Following a trial before a jury in the County Court, on 25 June 2021 the applicant was convicted of one charge of indecent act with a child under 16 and two charges of sexual penetration of a child under 16.[1]
[1]On 12 October 2021, the trial judge imposed a total effective sentence of 5 years and 6 months’ imprisonment on the applicant, with a non-parole period of 3 years and 6 months.
The applicant now seeks leave to appeal his conviction on three proposed grounds of appeal:[2]
Ground 1: A substantial miscarriage of justice has occurred as a result of the inability of the Applicant’s trial Counsel to explore evidence of the Complainant’s sexual history.
Ground 2: The guilty verdicts of the jury are unsafe and unsatisfactory.
Ground 3: A substantial miscarriage of justice has occurred by virtue of the learned prosecutor advancing submissions in his final address as to:
(a)the explanation for the complainant engaging in the alleged sexual activity the subject of the second toilet block incident; and
(b)how the complainant was able to connect the applicant with the toilet block the subject of both of the alleged toilet block incidents;
in circumstances where the applicant had been prevented from cross-examining the complainant as to particular aspects of his sexual history.[3]
[2]For convenience, the proposed grounds of appeal are referred to in our reasons as grounds of appeal.
[3]Leave was granted to add ground 3 during the hearing in this Court.
In our opinion, ground 3 is made out. Ground 2 is not made out and we have not considered it necessary to deal with ground 1. Leave to appeal will be granted, the appeal allowed, the convictions set aside and a new trial ordered.

Summary of relevant facts

The alleged offending occurred while the applicant, then aged 43 or 44, was a teacher at Geelong College. The applicant taught music, and had teaching responsibilities at the preparatory school campus from 1991 to 2003, before being appointed Music Director in 2004. The complainant was a student of Geelong College and was aged 11 and 12 at the time of the offending.
In his evidence, the complainant said that on an occasion in 2000, when he was aged 11, his music class was broken into groups of three or four students for separate lessons in various rooms in the school’s music block. The complainant and two other students went to Room 1 to have singing training with the applicant. Each of the boys went into the room one at a time while the others waited outside. When the complainant went into the room he told the applicant he could not sing because he had a cold. The applicant said that, if he had a cold, the complainant could sing higher notes or the complainant could ‘do a Michael Jackson’ at which time the applicant grabbed his own crotch. The applicant then said ‘like this’ and grabbed the complainant’s crotch while the complainant was standing (charge 1: indecent act with a child under 16).
The complainant gave evidence that following year, in 2001, when he was aged 12, he rode his bicycle from his house to the Barwon River. It was after school. He rode his bike through Balyang Sanctuary when he saw the applicant standing next to his car out the front of a toilet block. The applicant gestured for the complainant to come to him. The complainant followed the applicant into the toilet block. He followed the applicant into the cubicle he designated ‘Cubicle 1’ on a sketch that he had made of the toilet block when providing his statement to police, Exhibit B. The applicant kissed the complainant and then pulled down the complainant’s board shorts and masturbated and sucked the complainant’s penis (charge 2: sexual penetration of a child under 16). While doing so the applicant penetrated the complainant’s anus with his finger (charge 3: sexual penetration of a child under 16). The applicant sucked the complainant’s penis for about half an hour. The applicant also intermittently masturbated himself.
The complainant also gave evidence of an uncharged further incident involving the applicant when the complainant was aged 16 that also occurred at Balyang Sanctuary toilet block and was of a similar nature to that described immediately above.
In 2018, after hearing about the Royal Commission into Institutional Responses into Child Sexual Abuse, the complainant performed a Google search of Geelong College to see if any reports had come out of the school. In the process, he viewed the Geelong College website and saw that the applicant was still employed, now as Director of Music. The complainant called the number of Ms Pauline Ryan, an independent facilitator appointed by the school to handle complaints of abuse at the school, and whose details were on the school website. He disclosed the alleged offending to Ms Ryan. Ms Ryan notified police and the complainant disclosed the offending to police as well.
When interviewed, the applicant denied the offending and said the complainant’s name meant nothing to him. The applicant gave evidence and was cross-examined.
It will be necessary to refer to the evidence in greater detail when we consider each ground of appeal.

Ground 2: Unsafe and unsatisfactory

It is convenient to deal first with proposed ground 2.
Ground 2 invokes s 276(1)(a) of the Criminal Procedure Act 2009 (the ‘CPA’), which provides that the Court of Appeal ‘must allow [an] appeal against conviction if the appellant satisfies the court that … the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
Section 276(1)(a) of the CPA 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 of charges 1 to 3.[4] In M v The Queen, the majority observed as follows:
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.[5]
[4]M v The Queen (1994) 181 CLR 487, 493, 494–95 (Mason CJ, Deane, Dawson and Toohey JJ).
[5]Ibid 494–95 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted).
In Pell v The Queen, the High Court endorsed the approach in M v The Queen, and said this:
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.[6]
[6](2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted) (‘Pell’).
Applying that approach to the appeal in that case, the High Court said this:
Upon the assumption that the jury assessed [the complainant’s] evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised … above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.[7]
[7]Ibid 164–65 [119].
In the present case, the applicant relied upon the above statements of principle in Pell in relation to charges 1 to 3. Counsel for the applicant submitted that there were a number of features of this case that combined in such a way that any jury acting reasonably must have had a reasonable doubt about the applicant’s guilt on each of the charges. There were 16 particular matters[8] that, when combined, must have caused the jury acting reasonably to have a reasonable doubt about the applicant’s guilt on each of the charges. Counsel contended that the ‘compounding impact’ of the first five discrepancies identified in the complainant’s evidence meant that certain aspects of the applicant’s evidence should have been accepted. In combination, counsel submitted, the inconsistencies, discrepancies and other inadequacies in the complainant’s evidence, together with evidence from other sources, was such that the jury, acting rationally, ought to have entertained a reasonable doubt as to his guilt.

Particular 1

[8]A 17^th matter was added during the course of the hearing. It relates to the trial judge’s report to this Court and is discussed separately below.

The applicant submitted that there were aspects of the complainant’s evidence that defied belief. The following two matters were referred to:
(a)The complainant wrapped the top of his penis in toilet paper, sticky taped his penis to his stomach and left it there for a week so that his penis would not move around.
(b)The complainant’s evidence that the eye of a person over the peephole (smaller than a five cent piece) in the wall caused a noticeable change in the light inside the toilet block, in circumstances where it was during the day and the toilet block had a skylight and fluorescent lights.
In relation to (a), the complainant gave evidence during cross-examination as follows:
[DEFENCE COUNSEL]: - - - it’s gone away. But you then say that after returning home, you bandaged it with tissue or something like that?---Yes.
And then you used sticky tape to stick your penis to your belly. Is that correct? ---Yes. Yes.
And you say that you left it that way for a week, that you kept it sticky-taped to your belly for a week, so that it wouldn’t move around and cause you any further pain?---Yes.
And it stuck to your belly for a week?---Yeah, I had to keep putting it there so it didn’t move the skin around the — sorry, a bit graphic. Um, I had to keep it taped in that position so that the foreskin wouldn’t move down and be extremely painful.
Yes. Now, am I understanding you correctly that you say that you had it bandaged and you didn’t change the bandages for a week?---Not the actual — no, not the toilet paper stuff. I just had to keep, like — you know, moving it around and taping it.
Do you say that the sticky tape was effective during the day, that it kept the toilet paper stuck to your skin during the day?---As long as it was where my underwear band was, then yeah, ‘cause that was the position I had to sort of have it at.
And this is with household sticky tape?---Uh, I think so, yeah.
You didn’t miss school because of the discomfort or the pain that you were feeling?---I don’t think so. I didn’t want anyone to know about that.
During further cross-examination, in response to a suggestion that the injuries and his attempts at first aid were ‘completely implausible’, the complainant gave evidence that his actions ‘would’ve been the best effort at first aid that I could’ve provided at that age without telling anyone. Um, I used what I could, and — you know, in the bathroom at that time’.
We do not accept that the complainant’s evidence that he taped his penis and his unassisted attempts to deal with his injury necessarily defies belief. The complainant was 12 years old, and the conduct he described needs to be judged in that light. We do not regard the conduct he described as so improbable that it, whether alone or together with the other particulars referred to, was not reasonably open to the jury to accept the complainant’s evidence in this regard.
In relation to (b), the complainant said in his evidence in chief:
Okay. Can you remember how you were feeling at that time?---Um, I — I would just, like, disassociated. Just not moving, or doing anything. It was — the thing that really scared me then was this, you know, seeing there was a hole in the wall with the next cubicle, and — and I could sort of, the light changed, like — like someone had blocked that hole or something from the other side. So I sort of looked in, and there was an eye, like directly staring at me, which was that — then — then my heart was racing for the rest of that time. And that was about halfway into that.
The complainant gave the following evidence during cross-examination:
Yes?---Um, so there was light changes, so I looked, cause I didn’t know what that, you know, why the light was changing there. And then there was — had an eyeball literally right up on the wall.
And those changes in light, in fact they were quite obvious - - -?---Mm.
- - - while you were in the cubicle?---Yes.
Very noticeable?---Yes.
That was what drew your attention to there being something on that wall beside you?---Yes.
And this was a toilet block where — well, first of all, it was still daylight when you went to this toilet block- - -? ---Yes.
- - - on this occasion. There was skylights in the roof of the toilet block?---As far as I recall, yes.
There were fluorescent lights inside the toilet block?---Yes.
And what you say is that some movement inside the second cubicle — some movement inside the second cubicle caused an obvious change in the lighting where you were?---Yes.
That is what you say?---Yeah. Well you could — you could see something, you know, that hole — the lighting change at that hole.
And you say that you could just look towards the hole, and you could see through to where someone was with their eye right up against the hole on the other side?---My eye would’ve been less than 5 centimetres away from the other one, and that’s burnt in my memory, that eye from that close.
Sorry, just one moment. So your eye, you say, was about 5 centimetres from the one on the other side of the partition?---Yes.
When the whole of the complainant’s evidence is taken into account, we consider that the evidence does not inescapably defy belief. The complainant said he was standing very close to the peephole (about five centimetres away) and said that an eye over the peephole affected a change in the light at that location. A review of the evidence as a whole clearly suggests that the complainant was not referring to the light in the toilet block generally — the ambient light — but to the specific and proximate change of light at the peephole, as observed from the position in which he was standing. He said it was noticeable and it affected him profoundly. The complainant’s evidence was not so improbable that it was not reasonably open to the jury to accept it on this aspect.

Particular 2

The applicant submitted that there were a number of inconsistencies in the complainant’s evidence. We shall address each inconsistency in turn.
We observe at the outset of our consideration of this facet of the applicant’s case that, as s 54D of the Jury Directions Act 2015 contemplates, people may not remember all the details of a sexual offence, or may not describe a sexual offence, in the same way, every time. Indeed, it is relatively common for there to be differences in accounts of a sexual offence given to different people at different times. We also note that the jury was given a direction to that effect pursuant to s 54D.
The first three suggested inconsistencies were as follows:
(a)the complainant gave evidence that he made up a story that he had a cold so that he would not have to sing, but he had told Ms Ryan that he did have a cold;
(b)the complainant gave evidence that in relation to the first incident he was one of three boys, but he had told Ms Ryan that he was one of four boys; and
(c)the complainant gave evidence that in the first toilet block incident there was only one peephole, but he had told the police that there was more than one peephole.
We are of the opinion that, if these may be considered to be inconsistencies, they are of a relatively minor nature, concerned with matters peripheral to the alleged offending. These are the kinds of inconsistency that a jury, acting in accordance with a direction under s 54D, was entitled to regard as inconsequential and as not requiring them to dismiss the complainant’s account.
The next matter relied upon was that the complainant gave evidence that the applicant digitally penetrated his anus, but he had not told Ms Ryan of such anal digital penetration.
We do not consider this to be a direct inconsistency between what the applicant told Ms Ryan and the evidence he gave at trial. Rather, it is something that he omitted to tell Ms Ryan. We are of the opinion that, when viewed in context, it is not surprising that the complainant made no mention to Ms Ryan of the digital penetration of his anus. The conversation with Ms Ryan was over the phone. It was a preliminary inquiry and was not intended to be — and was not — a full and comprehensive statement. It was not a substitute for a statement to police; rather, it was a discussion of options. Ms Ryan was an independent facilitator who was there to listen to those that contacted her and not to interrogate them.
The next inconsistency relied upon was that the complainant gave evidence that after the first toilet block incident he saw the applicant perform a U-turn in his car before driving off; but at the committal hearing, he said he did not see the applicant’s car after the applicant left the toilet block.

In relation to this matter, we are of the opinion that this inconsistency was relatively minor. Further, the complainant conceded that he may have confused events involving the applicant’s car as between the first toilet block incident and the second toilet block incident. The jury heard him give that evidence and it was open to them to accept his explanation.
The next matter relied upon was that the complainant gave evidence that he first experienced or noticed pain and discomfort during the sexual activity in the first toilet block incident. Later during evidence, he said that he first noticed pain and discomfort when he was riding his bike home after the incident. In his statement to the police, however, he did not suggest that he felt pain or discomfort during any part of the sexual activity.
In relation to this matter, the complainant gave evidence in cross-examination as follows:
That’s okay. Now in your evidence on Friday and Monday you described injuries that you had suffered after this incident in the toilet block. Now when did you first become aware of a sensation of pain or discomfort during that incident?---Afterwards when I was on the bike.
Okay so you didn’t notice pain or discomfort as the incident was occurring?---Well yeah there was a lot of discomfort but it wasn’t the excruciating pain like later on.
So in your police statement you said that you had not noticed the injuries until after riding home. Is that what you told the police in 2018?---Yeah, yeah. I wouldn’t have actually looked physically under my clothes until I got home.
And yet you say that they were quite significant injuries involving tears to your foreskin or under your foreskin?---Yes.
And there was bleeding that you noticed?---Yes.
After you inspected the area?---Yes.
…
And in that statement at paragraph 45, you had this to say — ‘I rode my bike home and after arriving, I noticed that my penis and anus were both very sore’. Can you see that?---Yes.
That’s what you told the police in 2018?---Yes.
And what you said there was that you had noticed that your genitalia and your anus were sore after arriving from your bike ride home. Can you see that?---Yes.
You did not say in your police statement that you had experienced soreness or pain while the incident was occurring in the public toilet block. Do you agree? ---Yeah I don’t think there’s mention of that there.
When viewed in context, the complainant’s evidence drew a distinction between pain and discomfort. The evidence was not necessarily inconsistent, and may be construed as an attempt to describe the continuing and different sensations both during and after the event.
The final matter relied upon was that Ms Ryan gave evidence that the complainant had told her that his motivation for contacting her was because he was aware that the applicant was still teaching children. However, the complainant gave evidence that he thought the applicant was dead.
In relation to this matter, we are of the opinion that, when viewed in context, the complainant’s evidence does not disclose any inconsistency. In his evidence the complainant said that he thought the applicant was dead but, having done an internet search, he had discovered that the applicant was still a teacher at the school. The complainant then contacted Ms Ryan and said words to the effect that he originally thought the applicant was dead but discovered through a search that he was still teaching at the school.
We consider that the suggested inconsistencies in the complainant’s evidence are not of such significance that the jury was required to conclude that — individually or in combination — they had a material bearing upon his credibility or reliability. The inconsistencies relied upon by the applicant were all put to the jury and, by its verdict, must be taken to have rejected them (as they were entitled to do). As we have observed, the jury was properly directed in accordance with s 54D of the Jury Directions Act 2015. The complainant made appropriate concessions in relation to any inconsistencies and, where he was able to, provided cogent explanations for them. It was open to the jury to accept those explanations.

Particular 3

The applicant submitted that the second toilet block incident was glaringly improbable because the complainant’s evidence was that after the incident in the music lesson he had been careful to avoid the applicant. In that context, it was submitted that ‘alarm bells would have been going off’ when the complainant saw the applicant outside the toilet block at the time of the second toilet block incident, especially given the first toilet block incident. Further, the complainant gave evidence that he could have continued riding past the applicant; he did not have to stop. His decision to stop should, it was submitted, have caused real concern for the jury.
The complainant gave evidence as follows:
And at that point when you have followed him you simply cannot account for your reasoning process in deciding to go into the toilet block with him. Is that fair to say?---Yeah, I don’t know why.
Because on your account you had been subjected to sexual abuse by this man when you had been an underage child?---Yes.
Not just any abuse but quite painful and prolonged sexual activity at this very location. Do you agree with that?---Yes. Yes.
Activity that you now say left you with very significant long term injuries?---Yes, it’s not functional injuries, it’s appearance injuries.
This was someone who you had deliberately tried to avoid in a school setting? ---Yes.
Where it would’ve been much harder to keep away from him at times?---Yes.
And you were on work business at this time. You had somewhere to go in connection with your work?---Yes.
And you were on an errand for your boss or something like that when this incident occurred?---Yes.
And again you were on a bike and you didn’t have to stop. You weren’t backed into a corner as it were?---No, no.
So if you’re telling the truth about the earlier incident then everything about this situation would’ve been setting off alarm bells for you. Do you agree?---Yes.
And it just would not make sense for you at that point in your life to follow him into that toilet block again if you’re telling the truth about the earlier incidence [scil, incidents?]? ---It wouldn’t make sense the first time me going in there let alone the second time.
…
[PROSECUTOR]: And in relation to the second toilet incident when you were 16. You were again challenged in cross examination about why — why you would go into that toilet block for the second time knowing what had happened on the first time and part of your answer seemed to be that you were suggesting that you were still confused that you were still processing what had happened on the first occasion. Is that right, or not?---Yes.
And in terms of your state of mind as at the time you saw Mr Irwin outside the toilet block on the second occasion. Can you now remember exactly what you were thinking about deciding, making that decision to go in there, the toilet?---Oh, I think I was [not] thinking[,] otherwise if it was a conscious informed decision it wouldn’t of happened.
What was your confusions, as best you can articulate it?---After those first two incidents there was a hell of a lot of confusion when I sort of got really into puberty um, around a lot of different things around sexuality and — and you know all of those sorts of things there was a hell of a lot of confusion around that time.
And was that before the first toilet incident that you were experiencing that, or not?---No, after the first toilet incident.
It was submitted that the complainant’s evidence in relation to this uncharged act was improbable and affected the credibility or reliability of the complainant’s evidence as a whole.
In our opinion, based on our review of the evidence before the jury, it was not inherently improbable that the complainant would have followed the applicant into the toilet block on the second occasion. He was 16 years old. He gave evidence that he was confused. It was reasonably open to the jury to accept the complainant’s explanation in this regard.
In any event, if the jury had a doubt about the complainant’s evidence in relation to this uncharged act, they were not obliged to take that into account in evaluating the remainder of his evidence, although they were of course free to do so. It was open to the jury to have convicted the applicant without reliance on that evidence at all.

Particular 4

The applicant submitted that the evidence as to the almost identical way in which the first and second toilet block incidents took place should have troubled any jury acting reasonably. The complainant’s evidence was that the applicant was driving the same car, parked in the same position, engaged in the same sexual activity and it occurred in the same cubicle within the toilet block. He also gave evidence that he did not become aware of the reputation of the toilet block as a place where men could meet for sex until he was an adult.
We do not regard it to be inherently implausible that sexual conduct occurred in very similar ways on two occasions, such that the jury must have held a reasonable doubt in relation to charges 2 and 3, and that the complainant’s credibility and reliability were so impugned as to require reasonable doubt in relation to charge 1. We repeat our comments in relation to the uncharged act referred to above in relation to particular 3.

Particular 5

The applicant submitted that the complainant’s evidence to the effect that the applicant had the same new model grey sedan in both toilet block incidents should have caused concern to the jury, acting reasonably. The uncontradicted evidence was that at the time of the first incident the applicant owned a dark blue Mazda 626 hatchback and at the time of the second incident, he owned a newer model light grey Mazda.
The complainant gave evidence during cross-examination as follows:
So as you see that in your mind’s eye it’s a dark grey Mazda 6 sedan, is that right?---Yes.
You would say more of a gunmetal grey as opposed to a silver colour?---Yes.
And a sedan; a sedan, not a hatchback?---Yes.
As you picture it now it’s — or it was then a relatively new model Mazda. That is, a 21st century model?---Well, I don’t know the exact year but, yeah, it was - - -
A new car?---It — yeah, it didn’t look — it wasn’t an old car from memory. It had, I guess, sort of the curving lines of modern vehicles and not sort of the boxy angular lines of older construction - - -?---Yeah, correct. Yeah.
I’m just going to put this to you, Mr Irwin — sorry, [complainant], that Mr Irwin didn’t own a grey sedan of that description in 2001?---Yeah.
Do you understand what I’m suggesting to you?---Yeah.
He owned a blue car at that time, a car that was royal blue in colour or electric blue. Do you understand?---Yeah. Yeah.
And it was an older model hatchback, not a sedan?---Yeah.
You could be mistaken about your recollection of the vehicle he was in or near on that occasion. Do you agree?---Yeah, yeah. I could be.
So as you recollect that incident and have in your mind’s eye this dark grey Mazda 6 sedan, you could be mistaken about that detail. Do you accept that?---Yes. Yeah.
You could be overlaying something from a later incident, one that occurred after you had left the school?---About the car, like a different — well, yeah, if you’re saying he had a different car when that happened then I must be mixed up about the car.
HIS HONOUR: I don’t think that’s what’s being put to you. You might need to put it to him again.
[DEFENCE COUNSEL]: It’s possible that you didn’t see a dark grey Mazda sedan on that occasion in 2001 when you were 12 years old?---Well, yes, it’s possible. I mean that’s what’s stuck in my mind, is that dark grey sedan. Um, that’s why I was quite clear about it but you’re saying that that car wasn’t around then, then — yeah.
The complainant conceded that he was mistaken about the car the applicant was driving at the time of the first toilet block incident. He was, however, correct that the applicant drove a Mazda sedan. Further, given the events that subsequently unfolded, it is unsurprising that it was a peripheral detail relating to the first toilet block incident — namely the colour of the car — that the complainant got wrong.[9] The complainant explained the mistake about the car by reference to his confusion between the two events. It was open to the jury to accept that explanation.
[9]It is not, and was not at trial, suggested that the complainant was mistaken because of the passage of time.
Further, we do not accept the applicant’s submission that ‘any jury that overlooked or disregarded this defect in the complainant’s evidence as a function of the passage of time would have been involved in a process where the effect of the forensic disadvantage direction was impermissibly inverted’. It is open to a jury to reason that the passage of time has made it more difficult for a complainant to remember peripheral details of alleged offending, so as to explain an inconsistency in relation to such details. That process of reasoning is not necessarily impermissible, and was not impermissible in the present case (if, indeed, that is how the jury reasoned).

Particular 6

The applicant submitted that the way in which the first toilet block incident unfolded did not make sense in circumstances where the complainant gave evidence that he had sought to avoid the applicant after the music lesson incident. To follow him into the toilet block and into a cubicle was, it was submitted, inconsistent with this mindset.
The complainant gave evidence during cross-examination as follows:
As you approach on your bicycle you’re coming through an open area with roads and trails, bike trails. Do you agree?---Yes.
You could have continued riding. You weren’t sort of in a cul-de-sac where you had to stop?---No.
And you would agree that there was no reason that came into your mind at that point in time why you would go into an enclosed space with someone who you say had sexually interfered with you only a few months earlier?---Yeah, although at that age I wouldn’t have considered it sexual interference.
But it was an unpleasant experience?---Yeah.
That’s what you say?---Yes, yeah.
You can’t say that there was any reason why you go into an enclosed space again with a person who had caused that unpleasant experience for you?---Yeah, correct. I don’t know why I did that.
…
So you must have known that it was not something that you were expected to do at that age, to go into a cubicle with someone who was one of your school teachers. Do you agree?---Yeah, definitely.
You understood social conventions and social rules around that sort of situation, that you wouldn’t go into a toilet cubicle with an adult who wasn’t family?---Yeah. Yeah, definitely I would have known that at that age, that’s why it’s so — I don’t know why — why I did, or why I was confused about that or whatever.
Apart from confusion, you can’t think of any reason that you had to go again into an enclosed space with this person who had, on your account, sexually interfered with you at school a matter of months earlier?---No, I don’t — honestly I don’t know why I went in there and I wish I hadn’t have.
We are not persuaded by this point. Despite wishing to avoid the applicant, his voluntary act of following the applicant into the toilet needs to be considered in context. The complainant was 12 years old and the applicant was his teacher, thus there was a significant power imbalance between them.
The jury was properly invited by the prosecutor to consider the age and power imbalance between the complainant and applicant in relation to the first toilet block incident. Notwithstanding the complainant’s knowledge that it was inappropriate for him to be in a cubicle with his teacher, and his avoidance of the applicant in the school grounds, he remained a child of 12 who had unexpectedly come across his teacher. The jury was entitled to take that dynamic into account in considering the complainant’s actions, as well as his explanation, reflecting back on the incident as an adult, that the applicant was his teacher and he unthinkingly followed. The complainant’s evidence in this regard was not so improbable that it was not reasonably open for the jury to accept it.

Particular 7

The applicant submitted that the evidence of the complainant to the effect that his heart started racing only after seeing the eye through the peephole was strange in circumstances where the painful sexual activity had been engaged in for about 15 minutes.
The complainant gave evidence during cross-examination as follows:
You mentioned the presence of a person in the second cubicle during this incident when you saw them through the eyehole, do you agree?---M’mm.
But - - -?---Yeah, that — that’s the main thing that sticks in that whole thing, is that meeting an eye through a hole.
…
And you, presumably, had some sense that the person looking through from the other side was an adult?---I have no idea, I just remember the eyeball — I’ve been having, yeah, nightmares of that eyeball ever since.
And on your evidence, that person is looking through at the same height as you are, in order to meet eyes through that hole?---Yes.
Now, how far back from the toilet bowl were you? Were you a foot away from Mr — from the toilet bowl, or a bit closer?---No, probably — yeah, probably a foot — uh, a foot away.
Yes. Now, the incident — oh, just to round that off, perhaps, I will just suggest to you that that evidence does not make sense; that there would be a hole in the wall at the height for a child and, presumably, an adult, in the opposite cubicle. What do you say to that?---It doesn’t make sense? Well, no, it doesn’t make sense, but it was there, in that position.
And I’m suggesting to you it is just a figment, and a detail that you’ve embroidered onto this account that you’re giving?---That — no. That, I’m certain of that. That’s one of the biggest memories in my life, the biggest visuals as well.
We do not consider the point to be persuasive. The complainant regarded the presence of an eye at the peephole as intrusive and it clearly affected him severely. It was a critical event that he remembered.
The complainant was not silent as to his level of distress or reaction prior to seeing the eye at the hole in the cubicle wall. He gave evidence that he froze, disassociated and was not moving whilst the offending took place. Seeing the eye at the peephole was, in essence, what jolted the complainant out of that frozen state. When viewed in the context of the complainant’s full answer, there is no merit to this submission of the applicant.

Particular 8

The applicant next referred to the complainant’s evidence relating to seeing the eye in the peephole, that is that it was burnt in his memory and the main thing he remembered; but he made no mention of it to Ms Ryan.
We refer to our comments at paragraph [29] above.
That the complainant did not mention the peephole to Ms Ryan does not considered in light of Ms Ryan’s role and the fact that this was the complainant’s first disclosure of the offending, render his evidence less credible or reliable. He was not attempting to provide a detailed statement to her, a task that he undertook later with police.

Particular 9

The applicant next referred to the brazenness with which the offences were committed.
In relation to the music room incident, the door was open, three students were outside, there was a busy walkway and there was nothing to stop others from walking in. The conduct lasted a matter of seconds and in circumstances where the complainant and the applicant were alone, together in a relatively small room, undertaking a scheduled school task. There was nothing unusual about the complainant and applicant being in the room together that would give any particular reason for someone to have looked into the room or, if they did, to pay attention to what was occurring therein. Whilst it may be that a passer-by could, from the right angle, have seen into the room, it would equally have been the case that the applicant, from inside the room, was able to see out. He would therefore have been able to touch the complainant at a point in time where the risk was minimised, albeit not eliminated.

Furthermore, the fact that the offending was said to have occurred in circumstances where there was an obvious risk of discovery did not mean the evidence was untruthful. The jury was entitled to accept the complainant’s account, despite the inherent risks in the brazenness of the applicant’s behaviour.
In relation to the first toilet block incident, the complainant’s evidence was that there were two other people inside the toilet block, and that someone was in the next cubicle. His evidence was that the applicant said to him — a 12 year old student — ‘let me suck your dick’. As observed above, the toilet block in question was known as a place where men met other men for sexual activity. The applicant had given evidence that he had gone to the toilet block for sexual encounters with other men and that there were occasions when others were in the toilet block during his adult sexual encounters there. In that context, the presence of other men does not, in and of itself, attract the same level of risk as it may be expected to in other settings. In addition, there was no evidence to suggest that any other adult in fact observed the applicant with a 12 year old boy. There was no evidence before this Court to show whether the complainant looked older than 12, or whether the other men present in the toilet block had an opportunity to see him clearly so as to gauge his age. In our opinion, it was open to the jury, who saw and heard the witnesses give evidence, to conclude that the offending against the complainant was, although opportunistic, considered and balanced against the risks that the applicant was used to weighing up when attending at the toilet block.
Finally we observe that it is, unfortunately, the experience of the courts that sexual offending is not uncommonly perpetrated in circumstances in which the offender ran a risk of detection.[10] It was well open to the jury to find that both incidents occurred, notwithstanding the brazenness of the conduct and the risk of detection.

Particular 10

[10]See, eg, Cavanaugh v The Queen [2021] VSCA 347, [162] (Kaye JA), [249] (Walker JA, with whom Maxwell P agreed); Schulz v The Queen[2019] VSCA 179, [93] (Maxwell P, Niall and Weinberg JJA); O’Brien (a pseudonym) v The Queen[2014] VSCA 94, [67] (Nettle JA).

The applicant next referred to the inability of the complainant to recall that the applicant remained his music teacher throughout the year in which the first toilet block incident took place. It was submitted that the complainant would remember being taught by the applicant for the rest of that year.
The complainant gave evidence during cross-examination as follows:
And you told the prosecutor in answer to his question, whether you had any further contact up until the end of Year 8 with Mr Irwin, you said no?---Yeah, I didn’t have any one-on-one contact with him or anything. I would’ve seen him around the school, of course and - - -
Yes?---But yeah, not one-on-one contact.
And did you also see him around the senior school when you were there in the years 2003 and 2004?---I — I think I was asked this question yesterday as well. Like, I might have seen him around, but again, I didn’t have anything to do with him.
Can I — I suggest that he would’ve been at school assemblies on a regular basis in at least the year 2004 at the senior school?---You can suggest that, yeah.
Yes?---I don’t recall that.
Do you recall him playing piano accompaniments at school assemblies on a regular basis during that year?---At — at senior school?
Yes?---No.
Now, your school report for the year 2001, when you say this incident occurred, suggests that he was your classroom music teacher in that year. Do you have any recollection of him being your classroom music teacher in the year 2001? ---Well, yeah, he was in the classes, with, um, Mrs McCartney.
No, no, I’m suggesting to you that he was the teacher responsible for your class in Year 7, according to your school report. Do you disagree?---Uh, yeah, I don’t — I don’t remember him as being the main teacher that year.
There’s another envelope in there with you that was provided to you?---Is that the sealed documents one?
Yes, perhaps if you could just - - -?---Okay.
- - - unseal that?---Yes.
Does that contain your school reports for semester one and semester two for the year 2001?---Yes.
And if you look at the report for semester one of 2001, on the second page where the subject is music, can you see that your teacher for that subject is Mr M Irwin?---Yes, that’s what it says.
And there is a commentary on your performance, written by Mr Irwin?---Yes.
…
[DEFENCE COUNSEL]: Well, what I’m putting to you, [complainant], is that when you gave evidence to this jury yesterday that you had no further contact with Mr Irwin of any note in the year 2001, you were completely overlooking the fact that he was your classroom music teacher for the entirety of that year. What do you say to that?---I still don’t recall him being my main teacher that year. Um, I know he was around in the music thing, but I don’t recall him being the main teacher.
He would’ve had you in his class twice a week if he was your main classroom music teacher for the year?---Okay. Did we have music twice a week? Is that on there? ‘Cause — yeah, sorry, I’m vague about the exact frequency of stuff.
Although the complainant did not recall the applicant being his classroom music teacher in 2001, the evidence was that the structure of the music classes for Year 7 students meant that they were taught by different teachers throughout the year, having perhaps only one class each week with their main music teacher, with other teachers coming in to work with them for their second weekly class. Further, the complainant’s evidence as to his efforts to avoid the applicant was that he did so as much as he could at that age, at recess and lunch — outside of the classroom setting.
These were plausible reasons as to why the complainant may not have recalled the applicant being his music teacher throughout the year in which the first toilet block incident took place. It was open to the jury to accept these reasons.

Particular 11

The applicant next referred to the complainant’s evidence that it was only at the trial that the complainant for the first time gave evidence that he suffered permanent injury as a result of the first toilet block incident.
The complainant gave evidence during re-examination as follows:
And is that [injury] still present today?---Yes.
And if you look down now, if you looked down, naked at your penis, what would you see?---That um the markings around the — the head of the penis like raised markings from where the foreskin has been torn back from being pulled back really hard.
And was that abnormality, if I can put it that way, was that apparent in any way before this toilet incident?---No, my foreskin had never been pulled back to that level and where the markings are is exactly where it was the most painful for that week afterwards.
All right. And in relation to the present day, that — those injuries to your penis, do they cause you any difficulty, or not?---No, there is no functional difficulty with it.
We do not regard this point as persuasive. The private and sensitive nature of the disclosure is entirely understandable. When disclosed, the complainant was not referring to any functional permanent injury.

Particulars 12 and 13

The applicant next referred to the facts that he answered police questions in the record of interview, gave evidence at trial and was of good character.
There is nothing to suggest that the jury did not take these matters into account. We have likewise taken these matters into account. These matters do not render the complainant’s account implausible, either alone or in combination with other matters relied upon.

Particulars 14 and 15

Next, the applicant drew attention to the fact that the judge gave the jury a forensic disadvantage direction, in circumstances where no medical evidence had been adduced concerning injury to the complainant’s penis.
Furthermore, the judge gave the jury an ‘unreliable evidence’ direction in relation to the complainant’s evidence.
The members of the jury were properly directed in relation to forensic disadvantage and good character and were given a direction akin to an unreliable witness direction. The trial judge’s directions to the jury are not impugned.
The experience of the courts is that juries ordinarily heed the directions they are given. As was observed in Huynh v The Queen, ‘the system of criminal trial by jury must proceed on the supposition that jurors will follow the directions that are given to them’.[11] That statement echoed what had been said in Gilbert v The Queen:
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one — accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.[12]
[11][2020] VSCA 222, [44] (Priest JA, Maxwell and Weinberg JA agreeing).
[12](2000) 201 CLR 414, 425 [31] (McHugh J).
There is nothing to suggest that, in the present case, the jury did not follow the trial judge’s directions.

Particular 16

The applicant referred to the complainant’s delay in coming forward and the inconsistency between his evidence that Ms Ryan was the first person he spoke to and other evidence that he had told three people about the events before speaking to Ms Ryan.
As is recognised in s 52 of the Jury Directions Act, delay in making a complaint in cases of sexual offending is a common occurrence. Some people may complain about sexual offending early, while others may not complain for some time, and still, others may never make a complaint.
In light of those matters, we do not consider that the complainant’s delay in disclosing the applicant’s sexual offending against him carried any real weight.

The Judge’s report

In addition to the sixteen matters discussed above, the applicant also relied upon the judge’s report in support of ground 2. We set out its contents, and discuss its relevance, below when dealing with ground 3. It is enough at this stage to say that the report appears to deal with answers given by the applicant to police in his record of interview concerning his homosexuality and his sexual practices, which were not – as they should have been – objected to by the defence. In our view, the evidence should not have been before the jury. It was highly prejudicial and bereft of legitimate probative value. But its reception could not have compelled the jury to entertain a reasonable doubt about the applicant’s guilt.

Conclusion as to ground 2

In determining whether a verdict was not open to the jury, an appellate court is required to make its own independent assessment of the evidence. In doing so, however, it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury is the body entrusted with the principal responsibility of determining the guilt or non-guilt of the accused person. As the High Court stated in Baden-Clay, ‘the setting aside of a jury’s verdict on the ground that it is “unreasonable” … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’.[13]
[13]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted).
Bearing that in mind, in our view, the jury were capable of assessing the evidence relating to the particulars referred to, and determining whether, and if so to what extent, each matter impinged on the truthfulness or credibility of the complainant’s evidence. There was nothing in the evidence which compelled the jury to conclude that the complainant was making it all up. Many of the particulars had limited relevance to the credibility of the complainant or the question of whether the alleged offending occurred.
We have dealt with each particular separately, reflecting the manner in which the applicant’s counsel advanced his submissions. It should not be thought, however, that we have considered the evidence in a piecemeal fashion. Indeed, we have considered and assessed the particulars and their effect cumulatively, in the context of the evidence as a whole. Based upon that assessment, we are of the view that none of the matters relied upon by the applicant, either individually or collectively, required the jury to have had a reasonable doubt that the applicant committed the offences with which he was charged. After observing the complainant being cross-examined over a number of days, it was open to the jury to find that he was an honest, credible and reliable witness. We consider that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Accordingly, ground 2 is not made out.

Ground 3: The prosecutor’s closing submissions

During the course of the hearing, the applicant was given leave to add ground 3 to the application. Ground 3 is in the following terms:
A substantial miscarriage of justice has occurred by virtue of the learned prosecutor advancing submissions in his final address as to:
(a)the explanation for the complainant engaging in the alleged sexual activity the subject of the second toilet block incident; and
(b)how the complainant was able to connect the applicant with the toilet block the subject of both of the alleged toilet block incidents;
in circumstances where the applicant had been prevented from cross-examining the complainant as to particular aspects of his sexual history.
In order to properly deal with ground 3, it is necessary to refer to the course of the trial, including the openings, the evidence, the applications to rely on the complainant’s sexual history, the charge and the submissions. Before doing so, however, it is necessary to say something of the judge’s report to this Court.

The judge’s report

By s 316(1) of the CPA, the Registrar of Criminal Appeals may require a trial judge to provide a written report on a case tried by the judge, giving the opinion of the trial judge on the case or any point arising in the case. The true value of such a report is that it may shed light upon some matter that may not be readily apparent from a perusal of the transcript.[14] But if a trial judge has expressed an opinion on a matter on which this Court is in as good a position as the trial judge to form an opinion, the trial judge’s opinion should be given little or no weight.[15]
[14]R v Ahmet (1996) 86 A Crim R 316; see also R v Marziale (Unreported, Court of Appeal, 18 April 1996). See also R v Groom [1999] 2 VR 159; R v Franks [1999] 1 VR 518; R v DFA [2001] VSCA 197, [44]; R v JMV (2001) 124 A Crim R 432 R v Sloane (2001) 126 A Crim R 188; RPS v The Queen (2000) 199 CLR 620, 626 [14] (Gaudron J), 651–2 [93] (Callinan J).
[15]Raimondi v The Queen [2013] VSCA 194, [59]; Monforte v The Queen [2018] VSCA 277, [106].
In a report provided to this Court at the Registrar’s request, the judge said this:
I feel obliged to raise my concern as to the possibility and effect of an irrational prejudice of the jury in response to the accused’s homosexuality and his prior sexual activity in public toilets; although candidly described by him as many years ago in a markedly different social context.
I felt this concern prior to verdict. It persisted after and despite my remarks to the jury in the early part of the charge. My concern was not related to any matter raised or stated by counsel.
Without recourse to other material, the source of the judge’s concern is somewhat obscure. It is only when regard is had to the applicant’s record of interview with police that the judge’s expressed concerns may be appreciated. Hence, among others, the applicant was asked the following questions and gave the following answers:[16]
[16]Emphasis added.
Q235That area that he’s talking about, the Balyang sanctuary, is that an area that you frequent at all?
AI would go down there occasionally.
Q236Yeah?
AMmm’hm.
Q237For any particular purpose? Or - - -
AI would go up there – it’s – it’s gay – it’s a gay beat. A well-known gay beat.
Q238O.K.
AMmn’hm.
Q239And are you going down there for – for that reason? Or - - -
AYes.
…
Q243O.K. Well, I assume what you're saying by being a ‘gay beat’, you – you go there to meet other males. do you, at the toilets? or - - -
AYes. But they – they would be adult males, not students.
Q244O.K. And what about – well, not students or – did you do younger persons - - -
ANo.
Q245- - - frequent - - -
ANo.
Q246All right. How is it that you generally would meet someone down there? Is it - - -
AIt’s – it’s just standing – standing around and, you know, we – we - - -
Q247It’s not a pre-arranged thing? Or - - -
ANo.
…
Q260What sort of behaviour did you engage in down there?
AIf any behaviour, it was – it was very short.
Q261O.K.
AA minute.
Q262Did it - - -
AOne-on-one stuff.
Q263Did it include oral sex?
AYes.
Q264O.K. Did it include anything like he’d described, where it’s - - -
ANo.
Q265- - - sticking fingers in anuses or anything?
ANuh.
…
Q286O.K. So you deny - - -
AAnd – and - - -
Q287- - - sexually - - -
AYou know, I mean, I'm – I’m aware of ages of – of children, having worked with – with kids for years, and years, and years, and years. And I – it – no.
Q288So he - - -
AThere’s – there’s – no question that I would be predatory with – with any – any student who looked anywhere near that age. In fact, with – it – it – my – my sexual encounters have been with – with older men. You can – you can tell. They – they – they drive a car, they – they come around. Not – not children.
…
Q300Can you say - you said that you mainly met older men down there?
AYes.
Q301Any idea of the youngest? As in, what sort of age bracket the youngest - - -
AIf I - - -
Q302- - - was in.
AIf I would be estimating that it would probably be in their 20s.
…
The applicant’s answers in the record of interview to which we have referred had no legitimate probative value, yet they were highly prejudicial. The questions had the tendency to paint the applicant in the eyes of some as a sleazy individual, engaged in sordid behaviour in unsavoury circumstances. In our view, there was no legitimate purpose in putting this evidence before the jury. The questions and answers could only have invited rank propensity reasoning. Had there been an objection to them, the trial judge undoubtedly would have excluded the evidence, either because it was wholly irrelevant, or alternatively because such little probative value it possessed was outweighed by the danger of unfair prejudice.[17] We are at a loss to understand how the prosecution thought it proper to lead the evidence of those questions and answers.
[17]Evidence Act 2008, s 137,

It is against that backdrop that ground 3 falls to be evaluated.

The course of the trial

In his opening address on 18 June 2021, the prosecutor said this:
However, you will hear that an almost identical incident between the complainant and the accused took place in the very same toilet block when the complainant was aged 16 years.
The complainant will describe in his evidence another episode of penetration after the accused had invited him into that toilet block. Because the complainant was aged 16 at the time of that alleged incident, the conduct of the accused does not constitute a crime. Nonetheless, the relevance of the conduct falls for you to be considered. It may be that it provides context, context to the earlier offending which is the subject of the charges in the indictment.
In response to the prosecutor’s opening, defence counsel for the applicant told the jury that his client denied that the conduct referred to in the charges took place. Nothing was said about the second toilet block evidence.
On 4 May 2021, prior to the jury’s empanelment, the witness Pauline Ryan — who had produced her notes in obedience to a subpoena — gave evidence pursuant to s 198B of the CPA. The trial judge said that the aim of the examination was directed to a defence application under s 342 of the CPA.
Ms Ryan’s statement to police, dated 18 February 2019, in effect became her evidence-in-chief. The statement reflected the contents of notes she made on 18 October 2018, documenting a telephone conversation that she had with the complainant. The notes relevantly record that the complainant told her the following:
Years later the same thing happened again. I was doing a horticultural apprenticeship. I was about 16 yrs old. I was again riding my bike and he was there in the same park. Over the years I’ve told 3 people — friends when I was drunk.
…
What he did to me set me off seeking that out. From 13 to around 21 I was basically being a prostitute to mostly complete strangers, 50% of the time being paid. That made me feel powerful, it wasn’t really like sexual.
I stopped in my early 20’s. I’ve been in relationships with males and females.
Counsel for the applicant briefly cross-examined Ms Ryan. After confirming that she wrote down what the complainant said, including what he said about his sexual activity between the ages of 13 and 21, the examination concluded.
Discussion between the judge and counsel then took place in open court. Counsel for the applicant sought ‘a further Basha^[[18]] hearing in respect to the complainant’, which would be a ‘very narrow hearing’ in relation to the complainant’s sexual activities. Counsel recognised that he ‘would obviously have to make that application, that this a 198B application for the complainant, in addition to a 342 application, in addition to any issues arising under s 32C [of the Evidence (Miscellaneous Provisions) Act 1958]’.
[18]R v Basha (1989) 39 A Crim R 337. The kind of procedure recognised in Basha is now is now permitted by s 198B of the CPA.
Ultimately, the judge ruled that the defence needed to make application under both s 342 of the CPA and s 32C of the Evidence (Miscellaneous Provisions) Act 1958, and he reserved decision on whether to permit defence counsel to cross-examine the complainant under s 198B of the CPA (which he referred to as ‘R v Basha cross-examination’. The judge said:
I think there needs to be an application under both sections, and whether or not I give permission for a Queen v Basha cross-examination, I can decide in the course of hearing argument. I’m presently not convinced for the reasons I’ve tentatively put to you.
On 17 June 2021, at the commencement of the trial, the applicant renewed his application under s 342 of the CPA for leave to cross-examine the complainant as to his sexual activities. Both parties made submissions and the judge gave a ruling on 18 June 2021. In his ruling, which we set out in full, the judge said this:
I will grant leave to both parties to lead evidence or cross-examine about the sexual event alleged at paragraphs 51 to 57 of the complainant’s statement to police of 22 October 2018. The complainant was 16. The conduct was not a criminal offence and the accused is not charged. I understand that, given leave, the Crown will lead the evidence; although it has opposed leave being granted. I find substantial relevance and that it is in the interests of justice having regard to the factors stated in s 349(a)–(d) [of the CPA] on the following basis.
(1)The sexual conduct is very strikingly similar to, fundamentally the same as that alleged in Charges 2 and 3 about four or five years earlier. The evidence being led would allow challenge to the credibility and reliability of the complainant’s account of those charged acts on grounds for example of invention, reconstruction, even substitution or transference.
(2)Even if denied, the later event gives some foundation or explanation of the complainant’s knowledge of the toilet block, the accused’s motor vehicle and the accused’s attendances there, bearing in mind his, that is the accused’s admissions in the record of interview.
(3)Factors of distress, humiliation, and embarrassment and the need to respect privacy and dignity, while still present, are lessened by the fact that the evidence the complainant will give of the charged acts is related to the same perpetrator and they are so very similar.
(4)As to this, the evidence led and cross-examination can be, to an extent, more restricted and limited to the purposes and relevance found.
(5)The risk of arousing discriminatory belief, prejudice or hostility are also lessened significantly in my view. The latter event is said to occur when the complainant was still young at 16. For example, the Crown would be entitled to put, and a jury entitled to take the view that a power imbalance existed in the alleged offender’s offences still existed to a significant extent.
(6)The accused’s opportunity to examine, test and have compared all very similar sexual conduct alleged between the accused and the complainant is consistent with s 349(d), ‘the right of the accused to fully answer and defend the charge’. I do not grant leave to elicit or cross-examine on what the complainant told the Geelong College therapist, Pauline Ryan, in what he would legitimately have seen as a confidential exchange not connected to the alleged offending. That is, there was a period in his life (at about 13 to 21 years) of sexual promiscuity and, to use his term, prostitution, mostly with strangers. The relevance and forensic purpose put is markedly outweighed by factors of distress, humiliation, undermining of privacy and dignity, risk of discriminatory and prejudicial reaction et cetera I would find classically so. That is my ruling.
Following the ruling on 18 June 2021, in the course of discussion with the prosecutor the judge observed that
the proposition that the complainant has knowledge of the area does not entail eliciting any sexual activity, therefore it doesn’t require leave and my ruling of leave as to the first aspect really implicitly allows it. I think [defence counsel], who is [sic] permitted to say, ‘Well, you knew of this toilet and you knew that he went there’.
The complainant’s evidence then proceeded. Relevantly, in examination in chief, the complainant said as follows in relation to the second toilet block incident:
All right. Now, you said that you do not know why you went into the toilet block with him. Have you focused on what — since the incident happened — on why you did this?---Yeah, a lot.
And what, if any, reason did you have for doing that?---The only thing — the only sort of thing, like, recently that I’ve been able to come up with, as to why I went in there again when I was older, was because the — so the first time that that happened I had — I had no idea what had happened, really. And um, it — it just — you know, it just stopped, and he left. Um, and I — I think — I don’t know, I must’ve — the only thing I can think of is — is trying to figure out what it was, um, and what happened. And — and potentially that’s the reason why I’d gone in there. But um, that’s the only reason — the only thing that I can think of.
Emotionally, at that stage, on the second occasion, how were you? How had you been between the first and the second occasion?---Not well, at all. Um, particularly up the — hitting puberty, so probably, I don’t know, Year 8, um, upwards. I had a lot of problems with, um, puberty.
In cross-examination and in relation to the second toilet block evidence, the complainant said as follows:
Now, did you know the reputation of that toilet block at Balyang Sanctuary as a gay beat, or a place where men could meet for sex with strangers?---No.
Not at that age, when you were 12?---I would’ve had no idea what that was at that age.
And as you grew up, living in the area, did you come to know of its reputation as a place where men could meet?---Uh, not until I was a lot older, like an adult.
An adult still living in Geelong?---Yes.
And I think you said that you left when you were about 22 and moved to Melbourne, is that right?---Yes.
And apart from the occasions, the two times that you talk about with Mr Irwin, had you used that toilet block on other occasions, or been inside that toilet block on other occasions?---Not that I recall.
And apart from the two times that you say that you encountered Mr Irwin there and there was sexual activity, had you seen him in the vicinity of that toilet block on other occasions, as you rode past?---No, I only saw him, yeah, those times.
…
So if you’re telling the truth about the earlier incident then everything about this situation would’ve been setting off alarm bells for you. Do you agree?---Yes.
And it just would not make sense for you at that point in your life to follow him into that toilet block again if you’re telling the truth about the earlier incidence? ---It wouldn’t make sense the first time me going in there let alone the second time.
Now by this point in your life — that is, after you had left school — you did know the character and reputation of that toilet block area?---Not by 16.
On 22 June 2021, before the completion of the cross-examination of the complainant, the applicant renewed his application to introduce the sexual history of the complainant. Counsel submitted that the complainant’s evidence was ‘at odds’ with what he had told Ms Ryan about his ‘sexual promiscuity’: the fact that ‘between the ages of 13 and 21 he engaged in regular, or what would appear to be regular, sexual activity with strangers’, and that the ‘sexual activity that made him feel powerful’. He submitted that ‘the jury might think that an admission of regular sexual activity at the same time, which made him feel powerful, creates a very different impression to this idea of a shrinking and vulnerable boy going through puberty’. Counsel submitted that, if the complainant was in ‘the habit of engaging in regular sexual activity with strangers, then he would be in no state of confusion about what had happened’.
The judge once more refused the application, however, observing that counsel’s argument ‘falls well short of satisfying a very stringent legislative provision’.
In the complainant’s re-examination, the following exchange occurred:
What was your confusions [sic], as best you can articulate it?---After those first two incidents there was a hell of a lot of confusion when I sort of got really into puberty um, around a lot of different things around sexuality and — and you know all of those sorts of things there was a hell of a lot of confusion around that time.
And was that before the first toilet incident that you were experiencing that, or not?---No, after the first toilet incident.

Closing submissions

In his closing address, the prosecutor said as follows (emphasis added):
His narrative was that of a naive young boy, approaching puberty who was sexually abused by one of his adult teachers. His description reflected confusion about what was taking place, shame about what was taking place, embarrassment and ladies and gentlemen, it reflected the overwhelming power imbalance between a man of 50 and a boy of 11 or 12. The wide disparity in experience of life, matters of sexuality, understanding of the world.
…
Now, for completeness, I’ll take you to the second toilet incident. Now this is an incident which is not the subject of the charge quite obviously because on his evidence he was 16 years old at the time and sexual penetration was only a crime if the child was under 16. But it has been raised in this case as part of a context. The defence rely on aspects of that second toilet incident, as you’ll hear, and so does the prosecution. The prosecution relies on this incident because it illustrates, in my respectful submission, the level of confusion, the power imbalance that I talked about, the difference in maturity, the difference in understanding of what was going on between the accused on the one hand and the complainant who was still very young on the other hand.
From about p 127, the complainant said, paraphrasing again, basically the same thing happened when I was 16. I came across Mr Irwin. He had the gardening job. He’d ride from Newton to Belmont. Went past the toilet block. Saw him again. He said dark grey Mazda 6 sedan, thought it was the same car, Irwin standing beside it. He sucked his penis, the same thing happened inside the toilet block with the exception that he ejaculated on that occasion. Maybe 10 or 15 minutes it took, same cubicle.
Now, what is instructive, it may be instructive, it’s a matter for you, is his reason for doing that because you’ll remember he was cross-examined about why would you do that when you knew that that had happened on the earlier occasion. He said this, this is at p 130, ‘The only sort of thing like recently I’ve been able to come up with as to why I went in there again when I was older was because, the first time that happened, I had — I had no idea what happened really and um you know, it just stopped and he left and I don’t know the only thing I could think of is trying to figure out what it was. What happened, potentially that’s why I’d gone in there. That’s the only thing I can think of.’
As I say, confusion and thrown into the mix that he also said that particularly hitting puberty, ‘I had a lot of problems with puberty,’ and he had problems at school he told you about and mental health issues.
…
If [the complainant] is just lying through his teeth about what happened, lying through his teeth, making up a wild story implicating the accused, framing him for something he didn’t do, lying about the toilet incidents, lying about being having his genitals cupped, it’s amazing that he was right on the money about the homosexual connection between the accused and the toilet block, around that time.
In his closing address, defence counsel said this:
Again, nothing compelling him to go in. No invisible hand forcing him in. He had a job to do, he had a destination where he was meant to be at work and he was in an open area on a push bike, didn’t have to approach Mr Irwin at all. Didn’t have to interact with him at all. His attempt to explain that was, I’d suggest, utterly unsatisfactory. Utterly unconvincing. Didn’t even rise to the lowest rung on the ladder of belief. He tried to explain his state of mind and his reasons for going in at p 130 and you would totally reject that explanation. He said the first time he had no idea what happened. Just stopped and he left. Well what does he mean in retrospect as a child, a person of 16 now, looking back and saying that he had no idea what happened on the earlier occasion. He must know. He must have an understanding.
He already said that he knew at 12 that it was off limits for an adult to be in a toilet cubicle with an unrelated child. Something that went against every social convention, every normal acceptability. He knew that at the time of the earlier incident. So it’s hard to make any sense of that part of the explanation. That when he arrives there the second time, he has no idea what happened earlier. He’d already said it had extremely painful and permanent consequences, claimed to you that he’d been some kind of shadow of himself after that. Embarrassed to use changing rooms. Struggling mentally. If those are his claims, well use your common sense to judge this incident of a 16 year old and the explanation that he gives for it. That he was trying to figure out what happened. It is just unconvincing. Just doesn’t stand up to common sense and experience of human nature and human responses.
In his charge to the jury, the judge relevantly said as follows:
The Crown puts to you that [the complainant’s] compliance at 16 shows the very power imbalance here. The accused’s sense of authority, even his presumption that he would have or would have the complainant follow him in on both occasions.
The defence puts this. That neither event at the toilet block happened. That the complainant alleges fundamentally the same event on both occasions, and that he simply complied on the second occasion is not believable, the defence puts to you. It shows the implausibility, it shows the implausibility and the lack of reliability and credibility in his, [the complainant’s] account of all that he alleges against the accused.
Now my voice now. You must be careful in your use of the later second toilet block evidence, the one at 16. It has only that purpose and relevance I have identified for you, context. You may only find the accused guilty of the offences charged if satisfied beyond reasonable doubt by the evidence describing those charges, that conduct. You need to keep the evidence of the later event which is not charged in perspective. You must not decide the case on feelings on sympathy or prejudice because of what you learn about the accused, or what is otherwise alleged against him.
In this case the need to avoid acting on feelings of emotion or sympathy is important. For example, the complainant’s evidence about why, as he looks back, he thinks he followed the accused into the toilet when 16, entailed description by him of difficulties in teenage or puberty, a sexual confusion, self-harm and the like. Well that evidence of those difficulties is only relevant to that. That is, why he thinks he complied and to explain, to give some explanation for his delay in complaint. You must not allow an emotional response to that.
…
He was cross-examined also about his evidence of the later event at the toilet block when he was 16. Its striking similarity about why he followed in, given the earlier alleged abuse of him by the accused. He was put to him that he had not given a truthful account about any of this sexual conduct. It was put to him that none of it happened. His evidence in response was to emphatically deny this.

Legal principles

This Court considered the principles relevant to a ground of appeal based on the conduct of prosecuting counsel in Bugeja v The Queen.[19] In that case, Weinberg JA said as follows:
[19](2010) 30 VR 493.
The starting point, in relation to a ground of that type, must be to consider the role of prosecuting counsel. As has been said many times before, that role differs from that of an advocate representing an accused person in a criminal matter. The prosecutor represents the State. His or her duty is to fairly and impartially place before the jury all relevant and cogent evidence, and not to obtain a conviction by any or all means. Having presented the evidence, the prosecutor should then address the jury as to how it should be viewed, but always doing so in a manner that is scrupulously fair.
The cases establish that the prosecutor should not, for example, adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack on the accused. It is not, of course, suggested that the prosecutor in this case did any such thing.
That is not, however, the end of the matter. It is clearly established that the prosecutor should not invite the jury to accept any argument that does not carry conviction in his or her own mind. Nor should the prosecutor put forward any argument or submission that is misleading, unfair, or otherwise unsustainable. To do so is to act contrary to the basic responsibilities that the prosecution must shoulder, and may well lead, in a given case, to a miscarriage of justice.
In King v R, Murphy J summarised the ethical responsibilities that rest upon a prosecutor in the following terms:
The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manoeuvre legally available in order to secure a conviction.
In R v Lucas, Smith ACJ made essentially the same point. His Honour said:
For the purpose of establishing such an allegation of unfairness it is not necessary for the applicant to be able to point to the conduct of an identified person or persons concerned in the prosecution as having been blameworthy. It is sufficient for him to show that the totality of the acts of those concerned on behalf of the Crown in the preparation and conduct of the prosecution has operated unfairly against him … [T]he duty of a prosecutor is to prosecute and not to defend, nevertheless it has long been established that a prosecution must be conducted with fairness towards the accused and with a single view to determining and establishing the truth.
Newton J and Norris AJ, in their joint judgment in Lucas, put the matter this way:
[P]rosecuting counsel are ministers of justice, who ought not to struggle for a conviction … it is their duty to assist the court in the attainment of the purpose of criminal prosecutions, namely, to make certain that justice is done as between the subject and the State.
In Whitehorn v R, Deane J said:
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping ensure that the accused’s trial is a fair one.
These broad statements as to the duties of the prosecutor extend, of course, to the content of his or her closing address. They lead to the conclusion that a prosecutor must not, in that closing address, invite the jury to proceed upon a theory which is known to be, at the least, highly dubious, and has the very real potential to mislead the jury. That conclusion is expressly supported by the authorities.[20]

Applicant’s submissions

[20]Ibid 503–4 [56]–[63] (Bongiorno JA agreeing at 506 [76]) (citations omitted).

The applicant submitted that in relation to the second toilet block incident, the prosecutor, in his closing submission, painted the picture of a young, naive, confused boy subject to a power imbalance, who did not really know what was going on, even at age 16. The prosecutor also implied that the complainant was not familiar with the toilet block and its reputation as a place where men could meet other men for sexual activity.
The applicant referred to the transcript set out at paragraph [107] above and submitted that by linking the second toilet block incident to the first, and submitting that the confusion remained in circumstances where, for the three years preceding the second toilet block incident, the complainant was regularly engaged in sexual activity with complete strangers for money which made him feel powerful, the jury was profoundly misled. Had this evidence been led it would have shown the complainant in a completely different light.

Respondent’s submissions

The respondent submitted that the prosecutor’s closing submission was not put as a general proposition that the complainant was someone who was not well versed in sexual matters, or did not understand the sexual nature of what had occurred in each of the toilet block incidents. Rather, it was put on the basis of the complainant’s confusion having regard to the relationship between the complainant and the applicant, and the relative power imbalance.

Analysis

In our opinion, the closing address of the prosecutor in relation to the characterisation and relevance of the second toilet block evidence was misleading, unfair and led to a substantial miscarriage of justice.
Having succeeded in opposing the application and renewed application under s 342 of the CPA, the relevant inadmissible evidence, concerning the complainant’s history of sexual activity with strangers as a prostitute, was known to the prosecutor. That evidence having been ruled inadmissible, the prosecutor should have avoided relying on the second toilet block incident as being relevant in the manner in which he identified, knowing it to be at the very least potentially or sufficiently partial, inaccurate and misleading.
(a)First, by linking the second toilet block incident to the first toilet block incident in terms of naivety, power imbalance and the confusion experienced by the complainant, the prosecutor implied that, at the time of the second toilet block incident, the complainant was not someone who was familiar with sexual matters, a position he knew to be untrue.
(b)Secondly, the prosecutor in substance invited the jury to conclude that the complainant would not have known about any connection between the applicant and the toilet block, which was known as a place men went to have sex with other men. But it was potentially the case that, as a young male prostitute, the complainant was aware of the reputation of the toilet block. It was also possible that he had observed the applicant in or near the toilet block on some occasion. These were matters that the applicant was not permitted to explore in his cross-examination of the complainant. In those circumstances, this aspect of the prosecutor’s closing address was also misleading and unable to be contradicted by the applicant.
Although he was entitled to rely upon the judge’s rulings, he was not entitled to mislead the jury. In our opinion, the prosecutor put an unfair spin on the evidence in circumstances where the defence had been precluded from adducing evidence to contradict or properly deal with these issues.
We will thus grant leave to appeal on ground 3; allow the appeal on that ground; set aside the applicant’s convictions; and order a new trial.

Conclusion

Given our conclusions on ground 3, we do not consider it necessary to deal with ground 1.
Section 277 of the CPA provides that, if the Court allows an appeal against conviction, it must set aside the conviction and either order a retrial or a judgment of acquittal. That reposes a discretion in the Court. Unless the interests of justice require the entry of a verdict of acquittal, ordinarily an appellate court would order a new trial where there is sufficient evidence to support a conviction.[21] Although there may be factors that, in a particular case, suggest such a course is not appropriate,[22] the circumstances of this appeal do not compel the entry of a verdict of acquittal. Despite the actions of the prosecutor which formed the basis of ground 3, there was a pathway to a conviction. That, coupled with the fact that a significant portion of the applicant’s sentence remains to be served, warrants an order that there be a re-trial, leaving the question whether one be had to the discretion of the Crown.
[21]R v A2 (2019) 269 CLR 507, 534 [84]–[85] (Kiefel CJ and Keane J); [2019] HCA 35.
[22]R v Taufahema (2007) 228 CLR 232, 256–7 [55] (Gummow, Hayne, Heydon and Crennan JJ); [2007] HCA 11.
On the retrial, the judge will not be bound by the trial judge’s ruling under s 342 of the CPA. Any reconsideration of a defence application under s 342 — should one be made — will necessarily be influenced by whether the record of interview survives in its current form.
---

[2022] VSCA 218

14 October 2022