Jianmin Yang (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0084

JIANMIN YANG (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	PRIEST, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2023
DATE OF JUDGMENT:	14 June 2023
DATE OF REASONS:	23 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 154
JUDGMENT APPEALED FROM:	[2022] VCC (Judge Coish)

---

CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – Applicant convicted on charges of rape, attempted rape, common assault, and criminal damage – Complainant the wife of the applicant – Evidence of alleged violence by complainant to young daughter – Evidence of removal by Child Protection Services of child from the custody of complainant – Impermissible suggestion by prosecutor in final address for jury to speculate why applicant’s young daughter not living with him – Trial counsel did not request judge to give curative direction – Whether substantial miscarriage of justice – Application for leave to appeal conviction granted – Appeal allowed – New trial ordered.

Criminal Procedure Act 2009, s 276(1)(b).

Knowles v The Queen [2015] VSCA 141; TKWJ v The Queen (2002) 212 CLR 124; Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659; Weiss v The Queen (2005) 224 CLR 300; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Huynh v The Queen [2020] VSCA 222; Paulino v The Queen [2018] VSCA 306; The Queen v Momcilovic (2010) 25 VR 436.

---

Counsel
Applicant:		Mr C Mandy SC with Mr A Imrie
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Fumens Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WALKER JA
KAYE JA:

The applicant was convicted, by the jury empanelled on his trial, of three charges of rape, one charge of attempted rape, one charge of common assault, and one charge of criminal damage. Following a plea made on his behalf, he was sentenced to a total effective sentence of 9 years’ imprisonment, with a non-parole period of 6 years.
The applicant has sought leave to appeal against his conviction on two grounds. First, it is contended that his counsel failed to adduce evidence, which would have substantially undermined the credibility of the complainant. The second ground concerns an impermissible invitation, by the prosecutor to the jury in final address, to indulge in speculation concerning the fact that the applicant’s young daughter was not then living with him. The applicant has also sought leave to appeal against sentence on the ground of manifest excess.
At the conclusion of argument, the Court formed the view that the application for leave to appeal against conviction should be granted, and the appeal allowed, on ground 2. In those circumstances, counsel for each side agreed that it is not necessary for us to determine ground 1. The following are our reasons for upholding ground 2.

Background circumstances

The applicant was born in China in 1971. He migrated to Australia in about 2000. In June 2011, he met the complainant via a dating website, and they subsequently married in 2012. They shared a matrimonial home. In 2012, the complainant gave birth to their daughter. Following their marriage, the relationship between the applicant and the complainant had deteriorated, and became increasingly dysfunctional. The offending took place in three incidents over a five day period in late June 2017.
The first incident occurred on Monday, 26 June 2017. The prosecution alleged that the applicant, in the course of an argument with the complainant, grabbed her around the neck and choked her (charge 1 – assault) and smashed her iPhone (charge 2 – criminal damage).
The second incident took place on the following Wednesday, 28 June. On that occasion, the complainant had been asleep. The applicant entered the room, woke her, and requested sex. The complainant refused that request, but, she alleged, the applicant penetrated her vagina with his fingers (charge 3 – rape), and then inserted his penis into her vagina and ejaculated inside her (charge 4 – rape).
In the third incident, which occurred on 30 June 2017, the applicant entered the complainant’s bedroom, and, in the course of an argument between them, a violent altercation took place. The applicant grabbed the complainant’s neck, sat on top of her and inserted his fingers into her vagina (charge 5 – rape). He then attempted to penetrate the complainant with his penis, but did not succeed in doing so (charge 6 – attempted rape).
Following that incident, the complainant fled the home and made her way to a police station, where she reported some of the offending. She was photographed and medically examined by a doctor at a Hospital Emergency Department.
The applicant was interviewed by police on the following day, 1 July 2017, and subsequently charged with the offences.

Summary of evidence

For the purpose of addressing ground 2 of the application for leave to appeal against conviction, it is only necessary to summarise the relevant evidence briefly.
The complainant gave evidence as to her marriage to the applicant, the birth of their daughter, and the circumstances in which they lived together. In July 2015, she moved from the master bedroom, that she had shared with the applicant, into the guest bedroom with her daughter, and the applicant remained in the master bedroom. In October 2015, she travelled to China with her daughter and a relative, and they returned to Australia in December. The complainant stated that, throughout 2016 and 2017, she requested a divorce from the applicant on a number of occasions. She said that that request arose from the applicant’s gambling, his frequent attendance at dancing clubs, and financial issues. In particular, the applicant would question her about her spending, and at the same time, he was giving his own family large amounts of money.
The complainant then described the three incidents, which gave rise to the charges. In respect of the first incident, which took place on 26 June 2017, she said that the applicant entered her bedroom while she was sitting on her bed, talking on her mobile telephone. Her daughter was asleep in the same bedroom. An argument then occurred between the complainant and the applicant, in the course of which the applicant grabbed her around the neck with both hands. He then took her telephone in one hand, and smashed it against the table and broke it into two halves. Her daughter woke up during the incident and asked the complainant what was happening. The complainant and the applicant comforted her, and she went back to sleep.
On the following day, 27 June, the complainant purchased a new telephone. She took photographs of the broken phone and her neck, and those photographs were tendered in evidence.
On Wednesday, 28 June, the applicant entered the complainant’s bedroom at about midnight. On that occasion, their daughter was sleeping in the applicant’s bedroom. The applicant woke the complainant up and attempted to have sex with her. He removed the complainant’s doona, and then tried to remove her underwear. The complainant resisted, and the applicant held her hands behind her back and managed to remove her panties. He then put his finger into her vagina with some force. After a few minutes, he removed his finger and penetrated her vagina with his penis until he ejaculated inside her. The complainant said that, during the incident, she cried, she said, ‘No’, and she also told the applicant to use a condom, which he refused to do. After the applicant ejaculated, he collected his clothes and then left the room. The complainant cleaned herself and then returned to sleep.
Late in the evening on 29 June 2017, the complainant was speaking on the telephone with a friend in China. The call concluded just after midnight. On that occasion, their daughter was asleep in her own bedroom. The applicant entered the complainant’s bedroom while she was on the telephone. The complainant terminated the phone call. An argument ensued about who the complainant was talking to. The applicant tried to take hold of her telephone. He struck her with his fist on the left cheek, and she began to bleed from the mouth. He pulled her head back by her hair, and sat on top of her, using both of his hands to choke her. The complainant was trying to scratch him in an attempt to remove his hand, and she was screaming. She felt that she was about to die. She could not speak or anything because he was pressing her neck so tightly. The applicant asked the complainant who she was talking with, and he said that he was going to have sexual intercourse with her. At that time, the telephone was on speaker, and the applicant picked it up, pressed the speaker button, and threw it on the ground. There was then some discussion between the applicant and the friend, in which the applicant told the friend that he was the complainant’s husband. The applicant told the friend that he and the complainant were about to have sexual intercourse.
The complainant moved onto her stomach at that time, and the applicant sat on her back, held her hands tightly behind her back, and proceeded to insert his finger into her vagina. He then attempted to put his penis into her vagina, but was unsuccessful in doing so. The complainant said that the incident occurred for about half an hour. She said that during it, she screamed very loudly and shouted for her daughter. She managed to struggle and escape from his grasp, randomly grab some clothes, took the car keys, and drove to a police station. There, her injuries were photographed, and, subsequently, she underwent a medical examination at a hospital.
In cross-examination, the complainant was questioned, initially, about the circumstances of her relationship with the applicant, and the differences that emerged between them in about 2015 and 2016. The complainant disagreed with the proposition that, at that point, they remained sleeping together in the master bedroom. Following that line of questioning, counsel for the applicant then cross-examined the complainant about each of the three incidents. A substantial part of that cross-examination comprised questions, in which counsel put to the complainant the applicant’s version of events, which, in response, the complainant rejected.
Counsel for the applicant then cross-examined the complainant about the content of WeChat messages she had participated in between 1 July and 20 July 2017. Counsel put to the complainant that, during that period, she had sought to negotiate with the applicant’s family a family law settlement, on the basis of which she would withdraw the complaint that she had made to the police about the applicant.
Finally, the complainant was cross-examined by counsel about an attendance by members of the Child Protection Services at her premises on 29 October 2021. She agreed that the members of that Service spoke with the daughter about her conduct towards her daughter. She disagreed that while those members were speaking with her daughter, she sat outside the door, listening to what her daughter was saying. She denied that she heard her daughter say to the Child Protection Service members that she had shouted at her daughter, that she had slapped her on the face, that she had hit her daughter on the head with a bat, and that she had pulled her daughter’s hair and torn her dress. She also said that she did not hear her daughter say that she had received a beating from the complainant, and that ‘I think my dad is more safe.’ She agreed that after Child Protection Service members had interviewed her daughter, she had told her daughter that they were going to take her away to her friend’s place.
The friend gave evidence of a telephone conversation, which he had with the complainant in June or July 2017. He said that, in the course of the telephone call, the complainant was surprised and screamed, ‘What are you doing?’, and then the telephone was hung up for the first time. The friend said that he then managed to reconnect the call with the complainant, and he heard some arguments proceeding. In the course of that argument, the male at the other end picked up the phone and said, ‘Do you know who I am, I’m [the complainant’s] husband’. In response, the friend commenced to argue with the male. The complainant told him over the telephone to hang up, which the friend did.
The doctor who examined the complainant, a medical practitioner who specialised in forensic medicine, gave evidence as to her examination of the complainant on 30 June 2017. In brief compass, the forensic physician found evidence of injuries to the complainant’s lips, scalp, jaw, and neck. There was tenderness in the abdomen and the right breast, and bruising to the hands, right arm, right shin, and left knee. The forensic physician also noted lacerations in the genital region, and an abrasion at the vaginal entrance, coupled with bruising around the cervix.
Senior Constable Laura McLennan gave evidence concerning the complainant’s attendance at the police station at 1:35 am on 30 June 2017. She said that the complainant looked as if she had been crying, she was quite dishevelled, her hair was in a mess, and she was not wearing any shoes. The complainant told her that she had had an argument with her husband, which had a sexual element attached to it, and in which her husband had touched her breasts and inserted his finger into her vagina. As a consequence, Senior Constable McLennan contacted the Sexual Offences and Child Investigation Team (‘SOCIT’) of the Victoria Police, and spoke to Senior Constable Matthew Evans.
Detective Evans gave evidence as to his attendance at the police station on the same date at 3:10 am. He observed that the complainant had redness to her neck, a swollen left side of the face, and red marks on her arms. She disclosed that there had been digital penetration and physical assault. As a consequence, Detective Evans arranged for the complainant to be examined by the above-mentioned physician. Detective Evans took photographs of the complainant, depicting her visible injuries, and the photographs were tendered in evidence.
On 1 July 2017, Detective Evans contacted the applicant and made an appointment for him to attend for an interview on the following evening. The recording of that interview, and a transcript of it, was tendered in evidence.
The applicant gave evidence at the trial. He described how he had met and married the complainant. The applicant said that, in July 2015, his daughter had moved into the second bedroom, while he and the complainant moved into the third bedroom while the master bedroom was undergoing renovation. Those works were not completed until about September 2016. The applicant said that, in 2016, before the complainant and his daughter left on a trip to China, he and the complainant had an in-depth discussion in relation to them breaking up, and that the topic of divorce was discussed.
The applicant said that the complainant made a further trip to China in May 2017. He said that, following her return at the end of May, her relationship with him seemed to be quite happy.
The applicant then gave evidence concerning the three incidents that are the subject of the charges. On Monday, 26 June 2017, he woke up and got out of bed. He said that he was about to cook breakfast, to which the complainant responded, ‘The breakfast you cook tastes like shit. No humans can eat that’. An argument then followed, and, as the applicant walked away, the complainant threw her telephone at him, causing the screen of it to break. The applicant picked up the telephone, went to the kitchen, and threw the telephone onto the bench. He said that he then left the premises. He denied that, at any point, he had grabbed the complainant by the neck in the bedroom.
In respect of the second incident, which occurred on the evening of 27 June, the applicant said that he had worked until midnight that evening. He said that, when he returned home, he entered bedroom number three. He said the room was full of fragrance, and he thought that the complainant was going to make up with him. He got into bed, kissed the complainant, and the complainant kissed him back ‘passionately’. The applicant said that he felt that things were back to normal, and they indulged in some foreplay. He said that he put his fingers into the complainant’s vagina, while she touched his penis. He then inserted his penis into her vagina, and ejaculated as he was withdrawing. They then went to sleep. He denied that he raped the complainant, and said that the sex was passionate and consensual. He said that on the next morning, the complainant went to get a morning after pill, in order to avoid becoming pregnant.
On the following Friday, 29 June, the complainant returned home at about 11:00 pm. The applicant was then in their daughter’s room, telling her stories. Their daughter fell asleep, and he put her to bed. The applicant then went into bedroom number three. The complainant’s telephone was on the ground. She asked the applicant if he had taken a shower, and he replied in the affirmative. He then got into bed and kissed the complainant, and she responded by kissing him. They commenced foreplay, and he said that the complainant acted ‘very passionately’. He put his finger in her vagina. At the same time, he heard the telephone starting to vibrate. He ignored it, but when the telephone vibrated a second time, he was concerned it might have been a call related to his work. He said that, at that time, his telephone was next to the complainant’s telephone on the ground. He swiped on the telephone and answered the call. He asked who the person was on the other end. The man at the other end of the call said, ‘I’m looking for [the complainant]’. The applicant asked him, ‘Who are you?’, to which the other person said, ‘I’m her boyfriend’. The applicant then said, ‘I’m her husband’. At that point, the complainant yelled, ‘I’m not married’. The applicant said that she looked ‘insane’, she bit him, causing him pain, and he dropped the telephone to the ground. The applicant then pulled her by the hair to try to push her away. When she stopped biting him, she punched him in the face, and she continued to fight, using both her hands and feet, trying to scratch him. The applicant said he was trying to stop her, and it was pretty chaotic. He denied that, at that time, he attempted to rape her with his fingers. He said after the fight, he tried to retreat towards the window. The complainant grabbed her telephone and her clothes, and started to make her way out of the house. She got into the car. Subsequently, the police attended two days later, and he underwent an interview with police.
At the conclusion of the applicant’s evidence-in-chief, his counsel asked him where his daughter was then living. In response, the applicant said that she was living with a friend of the complainant, but not with the complainant.
In cross-examination, the applicant was questioned, in some detail, about each of the three incidents. A significant part of the cross-examination consisted of the prosecutor putting to the applicant points of difference between his evidence concerning each of those incidents and what he had said in the interview with the police concerning them. The prosecutor also cross-examined the applicant concerning the background to the circumstances of his marriage with the complainant. In particular, the prosecutor put to the applicant that he had controlled the complainant’s finances, that he had neglected her welfare, and that he had become angry with her when she tried to be independent from him.
Two witnesses were called by the accused to give evidence as part of his case. The first witness gave evidence that in 2016 he commenced doing renovation works at the applicant’s home. He said that between February and June 2017, he would attend their home about three times each week on a social basis. He said that, during that time, the relationship between the complainant and the applicant seemed to be quite normal.

Finally, the second witness, the applicant’s sister, gave evidence about a telephone call that she received from the complainant on 30 June 2017. The applicant’s sister said that the complainant told her that the applicant must agree to conditions that she proposed to get divorced, otherwise, his life would be worse than death. The complainant told the applicant’s sister that she would ‘show him in the end of raping and send him to the gaol’. The applicant’s sister said that the applicant must agree to the complainant’s terms, which was to transfer the house property to her, and to give her $200,000, and in addition, $150 as support money. The complainant responded that they needed to sit down and talk about the matter.
Ground 2
Ground 2 of the application for leave to appeal against conviction is in the following terms:
A substantial miscarriage of justice occurred because the learned prosecutor impermissibly invited the jury to speculate as to where [the daughter] had been residing and why in the absence of any evidence and in the manner acutely and unfairly prejudicial to the applicant.
The subject matter of that ground arose from part of the cross-examination of the complainant, and the last part of the evidence-in-chief given by the applicant, concerning the intervention by officers of Child Protection in October 2021, and the fact that, as a result of that intervention, his daughter was no longer residing with the complainant.
In the course of her final address, the prosecutor made submissions to the jury concerning the evidence that the complainant had said to the applicant and to his sister that she would not press the charges against the applicant, if he agreed to her proposal for the settlement of the matrimonial dispute between them. The prosecutor also referred to the complainant’s evidence, in which she had said that she would be prepared to give up remarriage if her daughter did not accept her future fiancé. The prosecutor remarked that that evidence was an indication of ‘what kind of a mother’ the complainant was.
Having made those remarks, the prosecutor then turned to the allegations that had been made that the complainant had been violent to her daughter. She commented that the issues in the case were ‘far removed’ from what had occurred in October 2021, and that the reference to what occurred at that time was a ‘mudslinging exercise’ to attack the complainant’s credibility. The prosecutor noted that the Department of Families Fairness and Housing (‘DFFH’) had not been involved in relation to the family with respect to the daughter’s welfare in 2017. It was in that context that the prosecutor made the comment, that is the subject of ground 2, and which is in the following form:
Interestingly enough, you will note that despite, apparently, [the daughter] alleging to the Child Protection officer that she would feel safe with her father, she was not placed in her father’s care either. Well, that’s interesting, isn’t it? All right, mum’s violent, apparently, to the child. But why is the child not living with dad even when, apparently, she says she feels safe? Where is the child? Just like [the applicant] gave evidence, it’s with a friend. Well, that’s interesting, I say to you. But what really is the whole point of that is simply to discredit [the complainant] before your eyes, that she is not a witness of truth, that she is otherwise the instigator and the like. A matter for you.
That passage occurred near the end of the prosecutor’s final address. Neither at the end of that address, nor at any other stage in the trial, did counsel for the applicant request that the judge give a corrective direction to the jury in relation to that passage, or that the jury be discharged without verdict. Instead, counsel commenced his final address.
At an early stage of that address, having set out a number of lies, which counsel submitted the complainant had told in her evidence, counsel then made the following comment to the jury:
I’m going to say something about this “why is [his daughter] not with him?” all right. If we’re going to go there, let’s go there. Why do you think [his daughter’s] not with him? Where are we? In a rape trial. If you’re a Child Protection worker, would you be placing her with a guy that’s alleged of rape, true or not? No, you wouldn’t. It would be pretty negligent, so she’s not with him.
On this application, counsel for the applicant submitted that the comment, made by the prosecutor to the jury, that his daughter was not living with the applicant, was entirely irrelevant to the issues in the trial. He submitted that the comment, of itself, was calculated to invite speculation by the jury that the applicant was a violent person, or otherwise of such bad character, that DFFH would not permit his child to live with him. Further, it was submitted, the comment by the prosecutor invited the jury to engage in a form of propensity reasoning, that the applicant was sufficiently violently disposed that he could not be entrusted with the care of his own child, in circumstances in which he was accused of crimes of sexual violence. Counsel further submitted that the comment was factually misconceived in any event, since, at the time of the trial, the applicant had not yet been assessed by DFFH as to his suitability to care for his daughter.
In response, counsel for the respondent accepted that the comment, made by the prosecutor to the jury, was an error, and that it should not have been made. For the reasons contended for by counsel for the applicant, that concession was entirely correct. The comment by the prosecutor was calculated to invite the jury to engage in speculation as to why the applicant did not then have the care and custody of his child. In that way, the comment was an impermissible attack on the applicant’s character, and had the potential to invite the jury to engage in impermissible propensity reasoning.
The critical question, then, is whether the comment, made by the prosecutor in her final address, amounted to a substantial miscarriage of justice in the circumstances of the case.
In that context, we should note that counsel who appeared for the applicant at the trial (who was different counsel to those who appeared on behalf of the applicant on this application) filed an affidavit, explaining why he had chosen not to seek a direction from the judge, or a discharge of the jury, but, rather, had himself responded to the comment made by the prosecutor in the manner in which he did.
In the circumstances, it was appropriate, for the purposes of procedural fairness, that counsel have the opportunity to explain his conduct. However, it is well-established that, save in limited or exceptional circumstances, an explanation given by trial counsel, as to why a particular course was or was not taken at trial, is not relevant to the question whether there has been a substantial miscarriage of justice. Rather, the question, whether the decision by trial counsel was reasonable or otherwise, involves an objective inquiry, in respect of which counsel’s subjective explanation is ordinarily not relevant.[1]
[1]Knowles v The Queen [2015] VSCA 141, [143]-[145].
In TKWJ v The Queen,[2] Hayne J (with whom Gummow J agreed) expressed the relevant principles in the following terms:
... when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?[3]
[2](2002) 212 CLR 124; [2002] HCA 46.
[3]Ibid 158 [107]; see also 128 [8] (Gleeson CJ), 137 [27] (Gaudron J).
In the present context, then, the question is not: ‘why did counsel not seek a direction from the judge or the discharge of the jury?’. It is: ‘could there be any reasonable explanation for not doing so?’.
Ultimately, bearing in mind s 276(1)(b) of the Criminal Procedure Act 2009, the critical question is whether the impermissible comment, made by the prosecutor to the jury, has resulted in a substantial miscarriage of justice. In a case such as this, that question is answered by a consideration as to whether the error, by the prosecutor, assessed in the context of defence counsel’s remarks in response, could reasonably have made a difference to the outcome of the trial.[4]
[4]Baini v The Queen (2012) 246 CLR 469, 479 [26], 482 [35] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659, 677 [85]; [2013] VSCA 25 (Maxwell P, Weinberg and Priest JJA).
In the present case, counsel for the respondent accepted that, if the comment by the prosecutor had not been corrected or otherwise responded to, there would have been a substantial miscarriage of justice. That concession is correct. The trial of the charges against the applicant very much involved the jury’s assessment of the evidence given by the complainant, on the one hand, as against the evidence, given by the applicant, in which he denied the allegations made against him by the applicant. It might fairly be accepted that the evidence, given by the complainant, and her credit, was substantially, if not totally, unscathed at the conclusion of the cross-examination, which was quite ineffective in the circumstances. It may also be accepted that there was other evidence that tended to support the complainant’s account, including the evidence of the forensic physician who examined the complainant. Nevertheless, on the face of it, the applicant gave cogent and feasible evidence, rebutting the allegations made by the complainant. In those circumstances, it was open to the jury not to be satisfied, beyond reasonable doubt, of the guilt of the applicant. That is particularly so in view of the evidence that, on the night of the third incident, the complainant had sought a financial settlement from the applicant in resolution of the allegations that she was making against him. In those circumstances, it could not be maintained that this is a case in which, notwithstanding the error made by the prosecutor, the conviction of the applicant would have been inevitable.[5]
[5]Baini v The Queen (2012) 246 CLR 469, 480 [30], 481 [33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Weiss v The Queen (2005) 224 CLR 300, 315-6 [35]; [2005] HCA 81 (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, 106-07 [36]; [2012] HCA 14 (French CJ, Gummow, Hayne and Crennan JJ).
In determining whether there has been a substantial miscarriage of justice, it is, of course, relevant to take into account that counsel for the applicant at trial, did not seek a discharge of the jury, or a direction from the judge to the jury, correcting the erroneous comment, made by the prosecutor to the jury. This Court has noted, on a number of previous occasions, that where no such application is made at trial, it may ordinarily be inferred that trial counsel made a forensic judgment, based on the context and atmosphere of the trial, that either it was unnecessary to do so, or that such a direction or application might not be in the best interests of the applicant at trial.[6]
[6]See, for example, Paulino v The Queen [2018] VSCA 306, [122] (Priest, Beach and Kaye JJA) ; cf The Queen v Momcilovic (2010) 25 VR 436,479 [160]; [2010] VSCA 50 (Maxwell P, Ashley and Neave JJA).
In the present case, it is not possible to conceive of any reason why a direction by the judge, to ignore the comment made by the prosecutor, could have been in any way detrimental to the case of the applicant. On the contrary, such a direction, by the judge to the jury, might have undermined the weight, given by the jury, to the other submissions advanced on behalf of the prosecution, and, at the least, would have allayed the obvious prejudice occasioned to the applicant, by reason of the impermissible comment made by the prosecutor. Further, our system of criminal justice proceeds upon the assumption that juries ordinarily heed the directions given to them by trial judges.[7] A trial judge’s direction will thus ordinarily be the appropriate remedy for an error of the kind in issue in the present case. It is not possible, objectively, to conceive of any advantage, which would have accrued to the applicant, not seeking either a direction by the trial judge or, perhaps, the discharge of the jury.
[7]Huynh v The Queen [2020] VSCA 222, [44] (Priest JA, Maxwell P [1] and Weinberg JA [79] agreeing).
As already noted, it was plainly necessary for there to be some response to the prosecutor’s remarks concerning the daughter’s living arrangements. While it may be that, in some contexts, a response to a prosecutorial error can properly be provided by trial counsel, in this case we consider that a direction from the trial judge, which the jury would be bound to follow, was necessary. A response given by trial counsel — which the jury may or may not accept — was incapable of being as effective as a judicial direction. While such a direction may have highlighted the issue, it would have done so in such a way as to ensure the jury correctly understood the manner in which they were to approach the prosecutor’s remarks.
Further, the particular submission that was made by counsel for the applicant at trial, in response to the impermissible comment made by the prosecutor, did not, and could not, alleviate the prejudice to the applicant arising from the prosecutor’s comment. Rather, as counsel for the applicant has submitted on this application, the submission made by trial counsel was itself incorrect, because it postulated a reason why a Child Protection worker had not placed his daughter with the applicant that was inaccurate. As a result, the jury was left to speculate, quite impermissibly, about the basis for the daughter’s living arrangements.
In the context of a trial involving rape charges and charges of physical violence, the response by counsel for the applicant at trial — ‘if you’re a Child Protection worker would you be placing her with a guy that’s alleged of rape, true or not?’ — was capable of conveying to the jury that the Child Protection worker had, indeed, assessed the applicant to be a person who presented a form of risk of physical violence, or worse, to his young daughter. The capacity of defence counsel’s response to convey that suggestion, in the context of an emotionally charged criminal trial, could not have offset the sting of the impermissible comment made by the prosecutor. Rather, it bore the risk of exacerbating that harm.
In those circumstances, it must be concluded that, as a result of the impermissible comment, made by the prosecutor to the jury, which is the subject of ground 2, there was a substantial miscarriage of justice in this case. For those reasons, we concluded that ground 2 must succeed, that the application for leave to appeal be granted, the appeal allowed, and an order made for a re-trial.

---

[2023] VSCA 154

14 June 2023