Krause (a pseudonym) v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2022 0142
SIMON KRAUSE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 302
JUDGMENT APPEALED FROM:	DPP v [Krause] (County Court of Victoria, Judge Murphy, 27 April 2022)

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CRIMINAL LAW – Leave to appeal – Conviction – Unsafe and unreasonable verdict – Whether on whole of the evidence, open to jury to be satisfied beyond reasonable doubt applicant guilty on charges 5, 7 and 9 – Inconsistencies in evidence relied on by applicant concern uncharged acts or charges on which applicant acquitted – Unpersuaded jury must have had a reasonable doubt – Jury had clear advantage over Court of Appeal in seeing complainant give evidence.

CRIMINAL LAW – Leave to appeal – Conviction – Forensic disadvantage direction – Whether miscarriage of justice by failure of trial judge to direct jury on forensic disadvantage experienced by applicant as a result of delay in complaint – Where applicant’s trial counsel did not seek direction – Not persuaded passage of time gives rise to significant forensic disadvantage – Applicant should be bound by course taken at trial – No substantial and compelling reasons requiring judge to give direction – Leave to appeal refused.

Jury Directions Act 2015, ss 12, 15–16, 39.

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Counsel
Applicant:		Mr T McCulloch
Respondent:		Ms B Goding
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
TAYLOR JA:

The applicant faced trial before Judge Murphy and a jury on an indictment containing nine charges of sexual offending against his step-granddaughter. The first three charges related to alleged offending at the work premises of the applicant, a picture framing shop. The remaining six charges related to offending said to have occurred at the applicant’s home where he lived with his wife, the maternal grandmother of the complainant.
The alleged offending took place between 2005 and 2008 when the complainant was aged between around 9 and 12. For that reason, a number of the charges were alternative charges, in that the same conduct was alleged to have occurred when the complainant was under 10 years of age, or alternatively aged between 10 and 16 years of age.
The jury acquitted the applicant of the three charges relating to the sexual offending alleged to have occurred at the shop. It related to two incidents occurring on the same occasion, one of which involved playing a pornographic video game in the presence of the complainant (Charge 1), and the other a charge of sexual penetration by inserting his tongue into her vagina (Charge 2).[2]
[2]Charge 3 was an alternative charge based on the same conduct.
The jury convicted the applicant of three charges of sexual offending that occurred at the applicant’s home where the complainant went to stay. Based on the jury’s verdict this offending occurred when the complainant was between 10 and 16: one charge of sexual penetration by inserting his penis into the mouth of the complainant (Charge 5); one charge of sexual penetration by inserting his fingers into the vagina of the complainant (Charge 7); and one charge of sexual penetration by inserting his penis into her vagina (Charge 9).
The applicant seeks to overturn his conviction on two proposed grounds:
1.The guilty verdicts returned on charges 5, 7 and 9 were each unreasonable or could not be supported having regard to the evidence.[3]
2.The learned trial judge erred in failing to direct the jury on the forensic disadvantage experienced by the applicant as a result of the delay in complaint.
[3]Criminal Procedure Act 2009, s 276(1)(a).
Having regard to the role of this Court in considering proposed ground 1, it is incumbent on the Court to review all of the evidence. We have done so. What follows is a summary of the evidence.
The complainant lived with her mother and her mother’s partner in Warrnambool full-time. Arrangements were made for the complainant to stay with her paternal grandmother and the applicant in Traralgon during the school holidays. It was intended that her father would visit his daughter when she was staying with her grandparents.
In order to get the complainant to her grandparents’ house, her mother would drive her to Geelong and either her father or the applicant would pick her up and take her to Traralgon. At times her cousin, who was six years older than her, would also stay with their grandparents in Traralgon. The complainant recalled spending time helping in the applicant’s shop during her visits.
In her evidence, the complainant dealt first with the alleged offending at the shop. The complainant described the shop and drew a diagram of it which was tendered. The complainant gave evidence of there being a desk in the back office of the shop, with a computer and double-sided mirror through which you could see out but people could not see in. The applicant would play pornographic games on the computer with the complainant.
The complainant said that on one occasion after watching a pornographic game, the applicant sat her on the work bench top, removed her pants and underwear and performed oral sex on the complainant. The complainant said that shorty after this incident, the applicant gave her a small gold ring with amethyst and diamond. She was told by the applicant ‘to be a good girl’ and not to tell anybody. A photograph of the ring was in evidence.
The complainant gave evidence that on another occasion, she was also gifted several items of clothing from a discount department store. The complainant had pointed out things she liked and the following day, the applicant had bought everything she had pointed out. We pause to note that both the complainant’s parents gave evidence about the applicant buying things such as clothing and jewellery for the complainant.
The complainant then gave evidence about the offending which she said occurred at the applicant’s home. Before referring to that evidence it is convenient at this point to note that the prosecution relied on tendency evidence.[4] In particular, the prosecution sought to establish that the applicant had a sexual interest in the complainant and a willingness to act on that attraction. The tendency evidence included the following:
(a)when the complainant was aged 11 or 12, she recalled a time when she was in the bathtub in the main bathroom. She gave evidence that the applicant entered the bathroom, locked the door behind him and watched her bathe;
(b)the applicant played pornographic games with her present on about four occasions, including the time covered by charges 1 and 2;
(c)the complainant described an incident when she was aged 10 or 11. She was in the shower and the applicant entered the bathroom and locked the door. He taught the complainant how to shave her legs and ‘privates’;
(d)when the complainant was aged between 8 and 12, she said that she was in the applicant’s bed naked with him. The complainant’s younger cousin was staying over at the time. Her cousin came into the bedroom and saw the applicant and complainant in bed. She made a noise which alerted the applicant and he followed her out of the bedroom; and
(e)the complainant said that the applicant had given her a mobile telephone to contact him and encouraged her to run away from home and come and stay with him.

The evidence concerning the complainant running away from home in 2009

[4]Evidence Act 2008, s 97.

In relation to this last aspect, the complainant gave evidence about a time when she ran away from her home in Warrnambool, where she lived with her mother. There was a plan made between herself and the applicant to abscond from her mother. The applicant had supplied her with a mobile phone and money. She communicated with the applicant through text message and had arranged to meet him at Southern Cross Station. The police intercepted the complainant on a train at Footscray Station after her mother called and notified police that she was missing.
The evidence about the applicant providing the complainant with a mobile phone and encouraging her to run away related to events in 2009, that is after the charged acts were said to have occurred. As already noted, the prosecution sought to rely on the evidence as part of the matrix of facts that would, according to the prosecution, establish that the applicant had a sexual interest in the complainant and had taken steps to act on it.
In her evidence in chief, the complainant said that in July 2009 she had run away from her mother’s house. She said that the applicant had supplied her with around $40 and an old Nokia phone and that she was meant to use the phone to contact the applicant when she was on the train heading towards the applicant’s house. She said there was a plan with the applicant which, in answer to a question, she described in the following way:
I am not sure of the details of the plan but I - as a child was convinced that my mother was not so pleasant and I didn’t want to live with her anymore. I wanted to be with [the applicant] and [her father] um, so then there was the plan set in place where he supplied the money and the phone and with the intention for me to run away.
The complainant said she communicated with the applicant by text using the phone to let him know to collect her at Southern Cross Station. She said the police entered the carriage at Footscray Station looking for her and the police took her to the police station where she was collected by her aunt. She said her memory was that she did not speak to police on that occasion about the offending or where she got the phone from. The complainant’s mother gave evidence that the police had rung her and told her that the complainant had a phone with $300 credit on it, a key to the applicant’s house and directions to get to Southern Cross Station.
In cross examination it was put to the complainant that her grandparents had given her a phone to use when she stayed with them. She denied this, saying that it was given to her for the main purpose ‘to run away to communicate’. Asked whether it was given to her for the purpose of using it in Traralgon, the complainant said she was unsure. The complainant also said she was unsure when the proposition was put to her that she had talked to the applicant’s wife about running away. She accepted that when she texted about her arrival in Southern Cross, she did not know whether it was the applicant or his wife who had responded.
We note that in the pretext call, the applicant said:
Yeah, I don’t know - I don’t know what happened from - basically from when you - you ran away and got on the train and I was trying to meet you in Melbourne at the time, the police got there first and - and it all turned to shit from there basically, and I haven’t seen you since.
In his record of interview the applicant said that he got a call from the complainant saying that she was on the train and was coming to live with him. He said that he told the complainant not to move and that he and his wife drove towards the city to pick the complainant up. He said that the complainant, without his knowledge, had taken a spare phone out of the glovebox of his car, which was for her to use when she came to her grandparents’ on holidays. He recognised that this was the phone from which she had texted him.
Pausing there, a police officer, Jessica Graham who was the nominal informant, gave evidence. She was permitted[5] to read to the jury extracts of police notes taken by other police officers in 2009 relating to the complainant running away from home and being intercepted by police at a train station. The notes read to the jury included the following:
[The complainant] had returned to her mother yesterday from her grandparents’ house in Traralgon where she had stayed for the last two weeks during school holidays. The grandparents are [the applicant and his wife]. [The applicant] is a step-grandfather to [the complainant]. [The applicant’s wife] was away in Orbost for most of the school holidays as she and [the applicant] have a business there. Enquiries revealed that [the complainant] was on a train from Warrnambool to Traralgon to meet [the applicant]. [The applicant] was on his way from Traralgon to pick her up. According to [the complainant’s father], [the applicant] had given [the complainant] a mobile phone, money and a key to his house in Traralgon.
[The applicant] had also told her that these items would be kept secret and were for her to use to visit him anytime. This is done without the knowledge of [the complainant’s] mother, father, step father or [the applicant’s wife]. [The applicant] had also arranged to pick up [the complainant] from the Southern Cross Station. Footscray police found [the complainant] prior to [the applicant] being able to pick her up. [The complainant] then informed police that ‘[the applicant] had organised for her to run away’.

The charged acts

[5]An objection to part of the notes was withdrawn by the applicant’s counsel (T 120).

Returning then to the complainant’s evidence of the charged acts, the complainant said on one occasion the applicant entered the complainant’s bedroom. The applicant was sitting on the bed and had pulled his pants down. The complainant was kneeling on the floor. The applicant guided the complainant’s head down to his penis and put pressure on her head ‘making it go up and down to give [the applicant] oral pleasure’. This lasted for around 15 minutes and she recalled that he did not climax (Charge 5).
On another occasion, the complainant recalled that she was laying in her bed at around 9:00 pm. The applicant entered, got into bed with her and removed her pants. He inserted his finger into her vagina and was touching her clitoris. She recalled being around 10 years old (Charge 7).
The next incident occurred in her bedroom at her grandparents’ house when she was aged 11 years. The complainant was in the bed and the applicant was with her. They both had no pants or underwear on. She recalls the applicant attempted to penetrate her vagina with his penis. His penis entered but then the complainant screamed in pain. The applicant stopped and got dressed. The complainant recalls the next morning having blood in her underwear.

Evidence of complaint

The complainant said that in around 2011, she told her best friend that she had been assaulted by her grandfather but did not go into any detail. The friend was not called as a witness at the trial.
The complainant said that in 2013, she told her mother that she had been sexually assaulted by the applicant. The complainant said that she had told her mother in the context of an argument over the telephone with her mother. In her evidence in chief, the complainant volunteered that ‘it was come across in a way to make my mother feel bad’. At the time the complainant was living with her father, and her father took her to the police station to make a complaint.
The prosecution called Christine Robinson who was, in 2013, a detective leading senior constable stationed at the Knox sexual offence and child abuse unit. Ms Robinson gave evidence that she and another police officer had a conversation with the complainant on 8 October 2013. Ms Robinson took notes of the conversation. Without objection Ms Robinson was permitted to read from her notes to the jury.
Ms Robinson said that complainant had told her that:
(a)‘once I was there and showering he came in and had a camera. He filmed me in the shower’;
(b)the complainant had told her friend, and provided police with the friend’s telephone number;
(c)the applicant had bought her jewellery, rings and money for clothes;
(d)the applicant had ‘tried to actually have sex with me twice, he would make me give him a hand job’;
(e)it had happened two or three times and ended with the applicant ejaculating; and
(f)asked where it happened, the complainant answered in the applicant’s bedroom. Asked where the applicant had ‘tried sex’, the complainant said in the spare bedroom and that the applicant had stopped because ‘I was so young I was screaming’ and he did not want to wake up his wife.
In 2016, when the complainant was 18 years of age, she said she wanted to get ‘my story out’ and returned to the police. She said this was after she had an overdose and was admitted to a psychiatric ward and released into her aunt and grandmother’s custody living in Warrnambool.
As part of the investigation, the complainant undertook a recorded pretext call with the applicant. The applicant denied any wrongdoing in that call.

Cross examination of the complainant

The complainant was cross examined about her time in the shop. The complainant accepted that she was always under supervision in the shop, that the applicant’s wife also worked from the shop in her own craft business and that the applicant’s son also worked there. It was put to her that the shop did not have a two-way mirror but a wall with wooden slats between the shop and the back room that gave a view from the shop into the rear.
It was put to the complainant that the offending in the shop never happened. The complainant denied this.
The complainant was then cross examined about the alleged offending in the applicant’s home. The complainant accepted that when she was at her grandparents’ house she shared a bathroom with the applicant’s son and his partner.

Other evidence

The applicant called his son to give evidence about the layout of the shop. The applicant’s son stated that the shop had a privacy window consisting of timber slats that go up and down in a square hole to allow vision of ‘people coming and going’. He said that the slats were two to two and half foot by two foot ‘give or take’. This evidence was not challenged and was consistent with an answer given by the applicant in his record of interview that ‘you could see… both ways’ through the timber slats.

Submissions

In support of ground 1, the applicant submits that the evidence of the complainant was incapable of supporting the verdict having regard to:
(a)inconsistences in her account;
(b)improbabilities of the offending occurring as alleged; and
(c)delay.
In written submissions the applicant says that there were significant matters that bore on the complainant’s reliability and credit, which was ‘the central issue’ in the trial. In summary the matters relied on were:
(a)inconsistencies between the complainant’s account and the evidence of the applicant’s son about the layout of the shop, and whether there was a two-way mirror separating the shop from the rear room where the offending was said to have taken place;
(b)the complainant said that the applicant had entered the bathroom when she was in the bath and locked the door. She described the door having a ‘button type of lock’ on the door handle. Photographs were shown to her that showed a handle without a lock and a sliding lock separate to the handle. The complainant was shown a picture of the brass lock and it was put to her that the lock was not there when she would stay there. She said she was not certain;
(c)in her evidence to the jury the complainant said that on one occasion when she was showering the applicant came into the bathroom and showed her how to shave her legs and ‘privates’, but in her statements and complaints before trial she had never said that the applicant had taught her to shave her ‘privates’;
(d)the complainant gave evidence that when she was between 8 and 12 she was naked in the applicant’s bedroom and her younger cousin disturbed the applicant. The complainant said that the cousin screamed or yelled. The mother of the cousin gave evidence that she had spoken to the cousin, who could not remember anything occurring;
(e)the complainant said that when the applicant attempted to out his penis into her vagina he had to stop as she screamed, but there were other people in the adjoining rooms. The complainant said there was blood in her underwear the next morning. The applicant denied this could have occurred and stated that his wife did the washing and would have noticed blood in the complainant’s underwear;
(f)the complainant gave inconsistent evidence about the provision of a mobile phone to her by the applicant; and
(g)the complainant said in evidence that, apart from telling a friend in 2011, she had not told anyone about the offending until 2016 when she made a statement but the evidence showed she had told police in 2013.

In oral submissions, counsel for the applicant pointed to what were said to be inconsistencies in the complainant’s account about the applicant providing her a telephone and encouraging her to run away from her mother; differences between the 2013 account and her evidence at trial; and inconsistencies between her account of the shop and the evidence of the applicant’s son.
The applicant submits that the complainant’s accounts of sexual offending in the shop and the penile penetration that, on the complainant’s account, led her to scream, were improbable. In the case of the former, the applicant emphasises that the shop was busy, the applicant’s wife and son worked in the shop and there were often customers in the store. It was improbable that the applicant would have played a pornographic video game for 45 minutes and then engaged in the sexual offending for 15 minutes given the likelihood of other people being around. The unchallenged evidence of the applicant’s son was that there was slats and not a two-way mirror, allowing a line of sight from the shop into the back room.
In relation to the mobile phone, the applicant submits that the complainant gave evidence that the applicant had supplied her with a mobile phone and roughly $40 and encouraged her to run away, but the complainant later conceded she may have in fact been given a phone for her use whilst staying with the applicant. The complainant said she had communicated with the applicant on that phone whilst on the train, but qualified that by saying that she did not know if she had in fact been communicating with the applicant’s wife whilst she was on the train, stating ‘I don’t know who had the phone in their hand’. The complainant said she was unsure if she had discussed running away with the applicant’s wife, which would have been inconsistent with the applicant encouraging her to do. The complainant said she no longer had the phone when she returned to Warrnambool.

Consideration

Ground 1: unsafe and unreasonable verdict

Section 276(1)(a) of the Criminal Procedure Act 2009 provides that an appeal against conviction must be allowed if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
When the ‘unreasonableness’ ground is raised, the task for the appeal court is to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[6] This inquiry is purely factual; no discrete question of law arises. Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether — on that factual material — it thinks that upon the whole of that evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[6]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’).
In M, Mason CJ, Deane, Dawson and Toohey JJ explained:
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.[7]
[7]Ibid 494.
Subsequently, in Libke v The Queen,[8] Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in terms which emphasise the high hurdle which an appellant must overcome:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[9]
[8](2007) 230 CLR 559; [2007] HCA 30.
[9]Ibid 596–7 [113] (emphasis in original) (citations omitted).
In Pell v the Queen, the High Court said the following:
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.[10]
[10](2020) 268 CLR 123, 145 [39]; [2020] HCA 12.
There is, in this case, a further consideration. In assessing the evidence for itself this Court cannot ignore how the case was run, the issues that were in dispute and forensic decisions that were made may have affected the course of the trial. At trial the applicant made a forensic decision about how he would tackle the complainant’s evidence. In his closing address, trial counsel for the applicant, who did not appear in this Court, said the following to the jury:
Let me talk about [the complainant] as a witness. You heard from [the prosecutor] that it’s her suggestion that she was honest and clear. She was certainly clear in the evidence that she gave, she didn’t waver from what she was saying in court. I’m not impugning her honesty, I’m not saying that she’s a liar but ultimately it’s up to you as to whether you accept that she could be telling the truth about these things. There’s much in her evidence that is contradictory. There’s much in her evidence where she’s not able to say whether things happened or not. There’s much in her evidence where what she said in court this week is different to what she said in the past.
The distinction between matters of credibility and reliability are not always clear cut. And matters that affect the reliability of the testimony of a witness may be such as to preclude a jury from accepting all of the witness’s evidence to the criminal standard, even though there is no suggestion that the witness is deliberately giving false evidence. On the other hand, where fabrication is not an issue, inconsistencies in an account may reflect imperfections in memory or some other shortcoming but they may not be, either individually or collectively, fatal to the acceptance of the evidence as a whole or in respect of certain parts, even to the criminal standard.
It is notable that the inconsistencies relied on by the applicant concern either uncharged acts or charges on which the applicant was acquitted.
Dealing first with the complainant’s evidence about charges 1 to 3, which concerned offending said to have occurred at the shop. There were three aspects of the account that may well have led the jury to entertain a doubt. They were the evidence of the applicant’s son that there was no two-way mirror; the fact that there was evidence that suggested the shop was busy, with the applicant’s wife and son often present as well as customers; and the complaint to police in 2013 only referring to offending at the applicant’s home with no mention of the shop. Those matters did not affect the evidence concerning charges 5, 7 and 9 which occurred at the house, although it may be accepted that the applicant was not alone in the house with the complainant at the time of the alleged offending and the risk of detection must have been a potential factor in that offending, as it was in relation to the shop offending.
Nevertheless, there was a clear reason for the jury to draw a distinction between the two locations and unsurprisingly there was no ground of appeal that contended that the verdicts are inconsistent or irreconcilable.[11]
[11]See generally Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35.
The next matter on which the applicant’s submissions focused concerned the complainant’s account that she ran away at the behest of the applicant.
It may be accepted that the hearsay account given by a police officer who was not there at the time of reading from notes taken in 2009, in circumstances where neither the complainant nor her father gave evidence that reflected the notes, means that some caution should be exercised before accepting the evidence. However, two points of present significance can be made. First, the evidence did not go to a charged act. It was adduced as tendency evidence and was part of that evidence said to establish the tendency. The evidence that the applicant had watched the complainant bathe and spoke about shaving parts of her body were more powerful aspects of the tendency evidence. Second, the fact that the complainant had asked the applicant to collect her from the train station using a phone that originally came from him was not in dispute. Looked at objectively, the inconsistencies on which the applicant relied do not undermine the strong probative force of the evidence in establishing the asserted tendency.
The third main matter relied on by the applicant concerned asserted inconsistencies between the 2013 account, which the complainant could not recall giving, and her evidence at trial. In particular, the applicant says that in 2013 the complainant referred to the applicant using a camera when she was showering, requiring her to perform a ‘hand job’ and ejaculating, none of which featured in her trial evidence. Those inconsistences are matters that need to be weighed in assessing her evidence. That said, the differences were, in the forensic context of this trial, hardly devastating to the prosecution case. The 2013 statement was taken in a certain context, it was preliminary in nature, it did not arise out of a complaint and the notes did not purport to be a complete record of the conversations, albeit it might be expected the main allegations would likely have been recorded.
The fourth matter is delay.
Having reviewed the evidence as a whole, including by focusing on the deficits relied on by the applicant, we are entirely unpersuaded that the jury must have had a reasonable doubt. The evidence in relation to charges 5, 7 and 9 was clear and direct and remained intact through cross examination. It was not improbable that the offending occurred in a house in which other people were present. The evidence of the gifts, including the ring, and the tendency evidence were additional matters that strongly supported the convictions. Even if, which is not the case, we entertained a doubt as to the applicant’s guilt, this is a case where the jury had a clear advantage over this Court in seeing the complainant give her evidence in a way that would have assisted them in assessing and reconciling the inconsistencies and improbabilities on which the applicant relied.
Ground 1 must be rejected.

Ground 2: failure to give a forensic disadvantage direction

The applicant submits that there was a miscarriage of justice by reason of the failure of the trial judge to direct the jury on the forensic disadvantage experienced by the applicant as a result of the delay in complaint. The matters which are submitted to amount to a significant forensic disadvantage,[12] either individually or in combination, were:
(a)that by the time of the trial, the applicant’s wife had died in a motor vehicle accident (in 2010 or 2011). The evidence of the applicant’s wife may have corroborated the applicant’s account of the complainant’s phone contact with the applicant on the occasion of the complainant running away in 2009, and that the complainant had confided in the applicant’s wife about her own intention to run away from home before she in fact did so, and evidence as to the lock on the bathroom door;
(b)the inability to locate or for police to produce the mobile phone which the complainant asserted was given to her by the applicant in July 2009;
(c)the inability of police to produce notes apparently made by the complainant during the course of the 2013 interview;
(d)the absence of any medical examination being conducted on the complainant relevant to her assertion of bleeding into her underwear;
(e)that the true state of the lock of the bathroom door could not be established as a matter of certainty at the time the relevant alleged conduct was said to have occurred;
(f)the inability of police to locate or obtain a statement from the complainant’s friend, to whom the complainant said she complained in 2011; and
(g)the inability of the applicant to provide specific answers to all allegations (other than mere denials) in contradiction to the asserted offences in his police interview, which occurred more than seven years and up to 12 years after the asserted offences were said to have occurred.
[12]Jury Directions Act 2015, ss 12, 39 (‘JDA’).
The applicant’s trial counsel did not seek a direction of the kind that is the subject of this ground. Section 15 of the JDA provides that, subject to s 16, a trial judge must not give the jury a direction that has not been requested under s 12. Section 16 provides that the judge must give a direction, even if not requested, if the judge considers that there are substantial and compelling reasons for doing so.
Section 39(1) of the JDA provides that defence counsel may request under s 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused. Section 39(2) provides that a trial judge may direct the jury, as referred to in s 39(1), only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.
The applicant accepts that his counsel addressed the jury on the topics that are said to give rise to disadvantage and that the judge referred to the fact that, by reason of the delay, it was hard for the applicant to respond fully to the allegations that were put to him in the record of interview.
We accept that with the passage of time there is some evidence that is no longer available. Perhaps most importantly, the applicant’s wife has passed away. She may have been in a position to give evidence about the circumstances in which the applicant came to pick up the complainant when she ran away in 2009. In the scheme of this trial, we are not persuaded that this gives rise to a significant forensic disadvantage.
None of the other matters, either alone or in combination, take the matter much further.
Whatever the reason trial counsel did not seek the direction, and it may have been because he did not consider that the detriment caused by delay amounted to a significant forensic disadvantage within s 39(2) of the JDA, the applicant should be bound by the course taken at trial. Further, there were no substantial and compelling reasons that would properly have led to a departure from s 15.
Ground 2 must be rejected.

Conclusion

Leave to appeal against conviction should be refused.

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[2023] VSCA 302

7 December 2023