Meyer (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0102

CONOR MEYER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant.

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JUDGES:	MAXWELL ACJ, PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2018
DATE OF ORDERS:	9 May 2018
DATE OF REASONS:	31 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 140
JUDGMENT APPEALED FROM:	DPP v [Meyer] (Unreported, County Court of Victoria, Judge Gucciardo, 17 March 2017)

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CRIMINAL LAW – Appeal – Conviction – Indecent assault, sexual penetration of child under 16 – Two complainants – Whether verdicts unsafe and unsatisfactory – Unfavourable prosecution witness – Leave to prosecutor to cross-examine after defence counsel’s cross-examination – Aggregate of errors – Whether substantial miscarriage of justice – Duties of prosecutor – Leave to appeal granted – Appeal allowed – Evidence Act 2008 s 38, Criminal Procedure Act 2009 s 276.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Sarah Pratt and Associates
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL ACJ:

Summary

I have had the advantage of reading in draft the reasons for judgment of Priest and Kaye JJA. I gratefully adopt their Honours’ comprehensive account of the evidence given at the applicant’s trial and of the issues raised by the grounds of appeal.

Their Honours would allow the appeal, but only on the basis of the ‘aggregate of errors’ relied on under ground 4. For reasons which follow, I respectfully disagree. In my opinion, there was no miscarriage of justice and the appeal against conviction should be dismissed.

As will appear, I do not regard any of the matters which are now the subject of specific complaint (and which together comprise the ‘aggregate’) as having caused any material prejudice to the defence case. In almost each instance, I regard the course taken by defence counsel as a powerful indicator of the absence of prejudice. None of the matters now the subject of complaint prompted defence counsel to take any of the following steps:

·apply for a discharge of the jury;
·apply for the judge to disqualify himself;
·seek pursuant to s 12 of the Jury Directions Act 2015 a specific direction about the matter; or
·take exception to any aspect of the charge.

In James v The Queen, I referred to a series of decisions in the High Court and in this Court which

emphasise that, in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to informed decisions made by defence counsel about the best way to conduct the trial in the interests of the accused. As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.[2]

[2](2013) 39 VR 149, 152 [4].

As the joint judgment notes, counsel who appeared for the applicant at trial has very long experience as defence counsel.[3] Moreover, his conduct of this trial revealed him to be, at every stage, a vigorous defender of his client’s interests, astute to take objection whenever he perceived it to be necessary to do so. For example, counsel took a number of exceptions in the course of the judge’s charge, each of which resulted in a redirection.
[3]See below [226].

The decisions which counsel made, in the atmosphere of this trial, not to seek corrective action in respect of the matters now complained of were decisions made in the exercise of his client’s right to a fair trial. There was no miscarriage of justice.

Before I turn to ground 4, I wish to emphasise the significance of their Honours’ conclusion — with which I agree — that grounds 2 and 3 should be rejected.

Grounds 2 and 3

Ground 2 is the ‘unsafe and unsatisfactory’ ground.[4] That ground can only succeed if it is shown that it was not reasonably open to the jury to arrive at the verdicts which they returned. Put another way, the verdicts will stand unless the applicant demonstrates that the jury must have had a doubt about his guilt.[5]
[4]Criminal Procedure Act 2009 s 276(1)(a).
[5]R v Klamo (2008) 18 VR 644, 653-4 [38]–[39].

Priest and Kaye JJA have given detailed reasons for rejecting the unsafe ground. In their Honours’ view, it was open to the jury to be satisfied beyond reasonable doubt as to the credibility and reliability of the evidence of the complainant (‘AL’) as to the events giving rise to charges 4, 5, 6, 10, 18 and 20. Their Honours draw attention, in particular, to what they describe as the ‘careful and discriminating approach’ which the jury adopted in reaching their verdicts on the charges based on AL’s evidence.[6]
[6]See below [160]–[172].

I respectfully agree with their Honours’ analysis of the issues raised under that ground, and with their conclusion. It is thus the unanimous conclusion of the Court that the evidence before the jury established, beyond reasonable doubt, the applicant’s guilt of the charges on which he was convicted.[7]
[7]Cf Weiss v The Queen (2005) 224 CLR 300, 316 [41].

I turn to ground 3. This was the only ground contending that a specific ‘error or irregularity’ in the trial had resulted in a substantial miscarriage of justice.[8] Their Honours have, again, analysed with great care the relevant circumstances and the arguments advanced in support of this ground. They have concluded that, although s 38 of the Evidence Act 2008 was not complied with, that non-compliance did not cause a substantial miscarriage of justice.[9] Once again, I respectfully agree with their Honours’ analysis and conclusion.
[8]Criminal Procedure Act2009 s 276(1)(b).
[9]See below [191]–[207].

As appears from the joint judgment, one of the principal arguments advanced in support of ground 3 was that the prosecutor’s non-compliance with s 38 resulted in the opening up, to the applicant’s disadvantage, of the topic of pre-trial conferences which defence counsel had had with the applicant’s wife. As their Honours point out, however, any prejudice which resulted was wholly attributable to the decision of defence counsel to open up this topic in the course of his cross-examination of Mrs Meyer.[10]
[10]See below [202]–[203].

Explaining the course he had adopted, defence counsel said to the trial judge that he had acted ‘in a noble and appropriate manner’. He had opened up the topic, he said, ‘as a matter of disclosure’, in order to pre-empt what he anticipated would be cross-examination of Mrs Meyer on this topic by the prosecutor. As discussed with counsel in the course of argument on this application, however, defence counsel had other options open to him. The most obvious course would have been to seek a ruling from the judge (in the absence of the jury) as to whether this was a topic which the prosecutor could raise with the witness. As the judge said to counsel at the time, quite correctly, the prosecutor would have had no basis for cross-examining on this matter if defence counsel had not raised it himself.

Importantly, and in any event, their Honours have concluded that the raising of this topic had little effect on Mrs Meyer’s credibility. I respectfully agree. A fair reading of the transcript reveals that Mrs Meyer emerged almost entirely unscathed from the prosecutor’s cross-examination. There is no substance in the applicant’s contention that her credibility was ‘destroyed’.

As their Honours point out, the jury could not have been surprised to learn that Mrs Meyer had assisted her husband in the preparation of the case.[11] It was inevitable that she would be associated, in the jury’s mind, with the defence side of the case. The jury would, moreover, have appreciated the acute difficulty of the position in which she found herself, as a prosecution witness in the trial of her spouse on very serious charges of this kind.
[11]See below [198].

Ground 4: aggregate of errors

Ground 4 contends that the applicant’s trial ‘miscarried by reason of an aggregate of errors’. According to the written case, the trial

was marked by a series of incidents, which may not have individually given rise to a substantial miscarriage of justice, but which together have that result.[12]

[12]Citations omitted.

The ‘aggregate of errors’ is said to comprise the matters relied on under the other grounds, together with eight additional matters. Counsel for the applicant (who did not appear at the trial) emphasised in oral argument that none of the eight additional matters could be said, by itself, to have caused a substantial miscarriage of justice. In relation to item 8, that concession was expressly based on the failure of defence counsel to object to the course taken.[13]
[13]See [52] below.

It is, of course, open to a court of criminal appeal to conclude that, although no single error or irregularity caused a substantial miscarriage of justice, an aggregation of defects nevertheless denied the accused a fair trial.[14] At the same time, the intrinsic difficulty of this ground will be immediately apparent. When this Court concludes that the individual grounds of appeal are not made out, an ‘aggregate of errors’ ground advanced in the alternative will almost inevitably fail.[15]
[14]R v Kotzmann [1999] 2 VR 123, 157 [114] and the cases there cited (‘Kotzmann’); Ghebrat v The Queen (2011) 214 A Crim R 140, 142 [6].
[15]See, eg, R v Ferguson (2009) 24 VR 531, 593 [381]; Ho v The Queen (2011) 219 A Crim R 74, 86 [54]; DPP (Cth) v Fattal [2013] VSCA 276 [59]; Booysen v The Queen [2014] VSCA 150 [23].

Unusually, the ‘aggregate of errors’ ground here is not simply an alternative to a series of specific error grounds. Instead, the applicant has collected together a multitude of lesser complaints under a ‘catchall’ ground. That is an approach which has been strongly deprecated by this Court. In Davis (a pseudonym) v The Queen, the Court (Priest and Santamaria JJA and Cavanough AJA) said:

Under the umbrella of ground 5 — which contended that ‘an accumulation of errors and irregularities in the trial … led to a substantial miscarriage of justice’ — the applicant’s counsel sought to shelter a number of discrete complaints. Although the Court permitted counsel to adopt that course on this occasion, it should not be considered to be an acceptable course to advance distinct complaints — that should properly each be the foundation of separate grounds of appeal — under the cover of a ‘catchall’ ground. A ground claiming that an aggregate of errors has led a trial to miscarry is only appropriate where an appellant relies separately on distinct grounds of appeal which, when considered individually, might not found a conclusion that there has been a substantial miscarriage of justice, but which, when considered collectively, might found such a conclusion. Any future attempts to bundle up discrete complaints in a single ground alleging an aggregate of errors is unlikely to be received as tolerantly as it was by the Court in the present case.[16]

[16][2016] VSCA 272 [136] (emphasis added).

Against that background, I turn to deal with the eight additional matters (‘items’) relied on in support of ground 4. Priest and Kaye JJA would reject the complaints the subject of items 3 and 7.[17] I respectfully agree with those conclusions, and their Honours’ reasons. I turn to deal with the remaining items — 1, 2, 4, 5 and 6.
[17]See below [220], [252].

Item 1 concerned the prosecutor’s cross-examination of the applicant about his having sought legal advice the day after the pretext conversation. In my opinion, this complaint is without substance.

As the joint judgment notes, the trial judge specifically directed the jury not to draw any adverse inference against the applicant because he had consulted a solicitor in this way.[18] Counsel for the applicant in this Court accepted that this was an appropriate direction.
[18]See below [212].

This Court must, of course, proceed on the assumption that jurors will follow the directions which they are given.[19] On that assumption, there was no risk of impermissible reasoning.
[19]See, eg, Dupas v The Queen (2010) 241 CLR 237, 247–8 [26]–[28]; R v Mokbel (2009) 26 VR 618, 638 [90]; Mwamba v The Queen [2015] VSCA 338 [44].

Item 2 concerned a question which the prosecutor asked the applicant during cross-examination. The prosecutor referred to evidence given by the applicant, to the effect that AL had told him that her life was ‘in ruins’ and that she did not want to see him again. The prosecutor’s question was in these terms:

Would you suggest that when she saw you the last time and told you she didn’t want to see you again that that, according to you, would be the motivation for her telling all these appalling lies about you?

As Priest and Kaye JJA point out, a question of this kind is impermissible for the reasons given by the High Court in Palmer v The Queen.[20] But, as the plurality in Palmer pointed out, it is one thing to describe the asking of the question as improper, it is another thing to decide whether justice miscarried as a result. Brennan CJ, Gaudron and Gummow JJ said:

A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry. Nevertheless, as the question is irrelevant to any issue in the case, it ought not be asked.[21]

[20](1998) 193 CLR 1, 7–9 (‘Palmer’).

[21]Ibid 9.

It is notable that this matter was not made the subject of a separate ground of appeal. In other words, the applicant did not contend that the asking of the question ‘caused justice to miscarry’. Rather, according to the written case, the asking of the question ‘risked diverting the jury’s attention from the proper assessment of the credibility of prosecution witnesses’.

That contention may be disposed of shortly. First, defence counsel raised a strong objection immediately after the question was asked. A debate ensued, involving defence counsel, the prosecutor and the judge, as a result of which the prosecutor did not press the question. In those circumstances, the jury is likely to have disregarded the entire issue.

Secondly, defence counsel sought no corrective action from the judge. Properly alive to the impropriety of the question, as demonstrated by his objection to it, defence counsel could have asked the judge to give a direction to the jury to disregard the question. But he did not do so, evidently concluding that there was no risk of impermissible reasoning. In the circumstances, this was a sound forensic judgment.

Thirdly, there is nothing to suggest that the jury were diverted from a proper assessment of the credibility of prosecution witnesses. On the contrary, as Priest and Kaye JJA point out, their ‘careful and discriminating’ approach to their verdicts shows just how scrupulously they approached the question of credibility.[22]
[22]See below [161].

Item 4 concerned an intervention by the trial judge during the cross-examination of the complainant, when defence counsel was questioning her about her continued contact with the applicant in the years after the alleged sexual offences. The evident purpose of the questioning was to test the complainant’s credibility by pointing out the apparent inconsistency between her allegations that he had sexually abused her and her subsequent continuation of friendly relations with him.

When defence counsel asked AL how she felt about the applicant after the last of the alleged incidents, she confirmed that she was friendly towards him because ‘he was a family friend’. She further confirmed that she had attended his
28^th birthday party ‘as a family friend’.

The question which prompted the judge’s intervention was as follows:

If he had done these things to you he wouldn’t be a friend, he’d be something — somebody, I suggest, that you would detest.

At that point, the judge said to counsel:
I think these propositions … are arguments. I don’t want to stray into a discussion about the methodology about why children remain in the circle of offenders, why they keep going back to the sacristy, why battered women keep going back home. These are arguments.

For the reasons given in the joint judgment, this intervention was quite inappropriate. Whatever might be said about victims of violence continuing to associate with perpetrators, the judge had no business raising that general topic in the course of what was a perfectly legitimate line of cross-examination. I also agree with their Honours that, given the issues recently ventilated before the Royal Commission into Institutional Responses to Child Sexual Abuse, the reference to ‘going back to the sacristy’ was particularly inappropriate.

I am not, however, persuaded that his Honour’s remark caused any material prejudice to the applicant’s case. The most powerful indicator of the absence of prejudice is defence counsel’s failure to object. The transcript records that counsel simply continued with the cross-examination. Had counsel been concerned that his Honour’s remarks might lead the jury to reason impermissibly, or to give the cross-examination less weight than it deserved, he could have applied for a discharge of the jury. He did not do so. Alternatively, he could have asked the judge to direct the jury to disregard the remark. Again, he did not do so.

As mentioned earlier, defence counsel is a very experienced criminal barrister. The transcript of this trial shows that he was astute to raise objections, and seek directions, whenever he considered that the applicant’s interests necessitated that course. As has often been stated, counsel immersed in the atmosphere of the trial is far better placed than is this Court to determine the likely impact of such a statement on the jury.[23] This Court should be slow, in my opinion, to conclude that an accused person’s position was prejudiced when defence counsel evidently did not consider that to be so.
[23]See, eg, Arico v The Queen [2018] VSCA 135 [142]; Cooper v The Queen [2013] VSCA 153 [14]; R v Wright [1999] 3 VR 355.

Item 5 concerned interventions by the judge during defence counsel’s cross-examination of witnesses. The applicant’s written case identified five instances of comments made by the judge in the presence of the jury which, it is said, undermined the credibility of counsel. According to the submission, criticism of this kind ‘risks conveying that the judge views the defence case as hollow’.

Priest and Kaye JJA have described the circumstances in which each of the impugned comments was made, and I need not repeat those details.[24] Importantly, their Honours regard only two of the five comments (the second and the fourth) as being of any real moment. Their Honours have also identified a number of other interventions which were not relied on in the written case.[25]
[24]See below [228]–[238].
[25]See below [239]–[240].

In my respectful opinion, there is no basis for concluding that the judge’s comments caused any prejudice to the defence case. The joint judgment sets out the relevant passage from the decision of this Court in Piccolotto v The Queen, which affirms

the power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted. Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible.[26]

[26][2015] VSCA 143 [41] (citations omitted) (‘McPadden’). See Papazoglou v The Queen (2010) 28 VR 644.

At the same time, the Court in Piccolotto identified the risk that, if the judge ‘frequently intervenes by correcting and rebuking defence counsel’, the jury may infer that the judge has formed ‘an unfavourable view of the merits of the defence case’.[27] In my opinion, nothing said by the judge in this case is likely to have conveyed to the jury any impression about his Honour’s view of the merits of the defence case. Once again, I regard the position taken by defence counsel as of very great significance.
[27]Ibid [32] (citations omitted).

The position is, I consider, similar to that considered recently in McPadden v The Queen, where the Court (Priest and Hargrave JJA and Kidd AJA) said:

In their totality, the interjections impugned in this case are of a different order to those in Piccolotto and Percival. Certainly, they did not occur with nearly the same persistence. Moreover, save for one comment, the interjections provoked neither an application for the judge to disqualify himself nor an application for the discharge of the jury. Furthermore, no directions were sought with respect to the interjections, presumably because the applicant’s counsel did not see any need for directions to guard against any prejudice flowing from the judge’s comments. By contrast, in Percival, an application was made to discharge the jury, and directions were subsequently given; and in Piccolotto, an application was made for the judge to disqualify himself on the basis of bias, and directions were also subsequently given.[28]

[28][2018] VSCA 57 [52] (citations omitted).

In the present case, defence counsel did protest to the judge — in the absence of the jury — about one of the interventions. But there was no application for a discharge of the jury, and no application for the judge to disqualify himself, and no directions were sought, with respect to any of the judge’s comments. Here, as in McPadden, the obvious inference is that defence counsel did not see any need for directions to guard against any prejudice flowing from those comments.

Item 6 concerned the use of a screen in court between the applicant and the complainants as they gave their evidence. As the joint judgment points out, this course is permitted by s 360 of the Criminal Procedure Act 2009. At the time of this trial, however, the judge was required by s 361 to warn the jury that they must not draw any inference adverse to the accused, or give the evidence any greater or lesser weight, because of the use of a screen.

It is common ground that the judge did not give the direction required by
[29]See R v Moroz and Mendelis [2007] VSCA 30 [51]–[52].
s 361. But his Honour did explain that the use of a screen was commonplace in sexual assault cases, and the jury would therefore have understood that there was nothing unusual about the applicant’s case in this respect. The risk of unfair reasoning was remote.[29]

Again, I regard it as crucial that defence counsel took no objection to the direction given. Counsel was, of course, fully aware of the use of the screen. It must be assumed that, if he had had the slightest concern that its use might affect the jury’s view of the applicant or of the evidence which the complainants were giving, he would have raised it with the judge.

As I said in relation to item 4, counsel was imbued with the atmosphere of the trial. He was much better placed than is this Court to assess the risk of unfair reasoning. We should be slow to substitute our opinion for that of trial counsel.

For completeness, I note that s 361 of the Criminal Procedure Act 2009 has since been repealed.[30] The Explanatory Memorandum to the amending legislation stated as follows:

[A]s the use of alternative means and recorded evidence is now commonplace, mandatory directions are no longer necessary. Further, the wording of the direction (particularly the reference to ‘adverse influences’) may be difficult for jurors to understand. If jurors do understand the directions, research shows that ‘limiting’ directions such as these may, by placing ideas in jurors’ minds, have the opposite effect to that which is intended.[31]

[30]See Jury Directions and Other Acts Amendment Act 2017 s 13(1).

[31]Explanatory Memorandum, Jury Directions and Other Acts Amendment Bill 2017, 16.

Item 8 concerns the following direction which the judge gave in the course of his charge:

Now, yesterday in submissions you heard [defence counsel] say to you rhetorically ‘Why say something different in evidence unless you’re being untruthful or deceitful?’ And I wish to direct you further about not just that comment but what I have just told you in directions of law.
The experience of the law shows that people may not remember the details of a sexual offence, or may not describe the sexual offence in the same way each time, and trauma may affect different people differently, including by affecting how they recall events, and it is common for there to be differences in accounts of a sexual offence, and both - this is important - both truthful and untruthful accounts of a sexual offence may contain differences. It is up to you to decide whether or not any differences in the accounts of [AL] and [HK] are important in assessing their credibility and reliability, and whether you believe some or all or none of their evidence.[32]

[32]Emphasis added.

As can be seen, the giving of this direction was prompted by a rhetorical question which defence counsel had posed in final address. Counsel had emphasised what he described as ‘the demonstrated, repeated inconsistency, untruthfulness’ of the complainants’ evidence. The clear implication of the rhetorical question was that the only explanation for a change in the account which a complainant gave was that she was ‘being untruthful or deceitful’.

As can also be seen, the direction was expressed to be supplementary to ‘what I have just told you in directions of law’. As the joint judgment notes, the preceding section of the judge’s charge consisted of the standard directions — properly characterised by his Honour as directions of law — about what use the jury could make of prior inconsistent statements.[33] In the course of those directions, his Honour said:

You should keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details.

[33]See below[253].

This was an entirely orthodox direction to which, unsurprisingly, there was no challenge. Relevantly for present purposes, the essential thrust of the impugned direction was to the same effect as the unchallenged direction which preceded it. That is, the judge was applying the general proposition — that truthful witnesses can give inconsistent versions — to the specific context of evidence given by complainants in sexual assault cases. It is wholly unsurprising, in those circumstances, that defence counsel took no objection to the direction which is now the subject of complaint.

The failure to take exception is, once again, the most powerful indication that the giving of the direction created no risk that the jury would, as a result, reason in an unfair manner. Had defence counsel perceived any such risk, it must be assumed that he would have taken exception at the appropriate time, and sought a redirection.

Importantly, it was the failure of defence counsel to take exception which meant that this direction was not made the subject of a separate ground of appeal. Counsel for the applicant expressly conceded that, because no exception was taken, he could not submit that the direction had produced a substantial miscarriage of justice. As I have explained, I regard the failure to take exception as demonstrating that the giving of the direction caused the applicant no prejudice.

In any event, the direction was innocuous. His Honour was merely stating an incontrovertible truth, namely, that a person who is required to recount an event on successive occasions over time is unlikely to give precisely the same account each time. To the extent that defence counsel’s question implied the contrary — that is, that a person’s successive accounts, if they were true, would be expected to be word-for-word the same — then the judge was right to correct any misapprehension which might thus have been created in the minds of the jury. The requirements of a fair trial for the prosecution justified that correction.

As Priest and Kaye JJA have noted, a direction in almost exactly the terms used by the trial judge is now provided for by s 54D of the Jury Directions Act 2015.[34] The Bill which included that provision was introduced into the Victorian Parliament in February 2017, before the applicant’s trial commenced, but it was not passed until August 2017 and did not commence until October 2017.[35] (So closely does the impugned direction follow the language of what became s 54D that it may be inferred that the judge was anticipating its enactment.)
[34]See below [255].
[35]See Jury Directions and Other Acts Amendment Act 2017.

In the United Kingdom, directions on matters of this kind are governed by the common law. In 2010, in Miller v The Queen,[36] the Court of Appeal (Criminal Division) said:
[36][2010] EWCA Crim 1578.

In recent years, the courts have increasingly been prepared to acknowledge the need for a direction that deals with what might be described as stereotypical assumptions about issues such as delay in reporting allegations of sexual crime and distress …[37]

The Court continued:
[Defence counsel] submitted that this approach offended the common law principle that judicial notice can only be taken of facts of particular notoriety or common knowledge and so provided to juries during the course of a summing up as established without evidence. That, however, is precisely what dealing with these generalisations is intended to do. As Latham LJ explained in R v D … :
The judge is entitled to make comments as to the way evidence is to be approached, particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning.[38]

[37]Ibid [23] citing R v MM [2007] EWCA Crim 1558, R v D [2008] EWCA Crim 2557 and R v Breeze [2009] EWCA Crim 255.

[38]Ibid [24] (citations omitted).

What his Honour said in the present case should be viewed in the same light. It may be accepted that his Honour had neither judicial nor legislative authority to describe what he said as a direction, rather than as a comment. But, for the reasons I have given, the giving of the direction was in the interests of justice, constituted by ensuring a fair trial for both sides, and was incapable of causing any unfairness to the applicant. In the passage under scrutiny, the judge made unambiguously clear, as he had done in his directions on prior inconsistent statements, that it was for the

jury — and the jury alone — to decide whether the differences in the accounts the complainants had given affected their view of the credibility and reliability of those witnesses.

PRIEST JA

KAYE JA:

The applicant was charged on indictment with 27 counts of committing sexual offences against two young girls, who were under the age of 16 years, in the period June 1980 to September 1981. After a trial in the County Court, the applicant was convicted of 13 of those charges, and was sentenced to a total effective sentence of six years and six months’ imprisonment with a non-parole period of four years. He seeks leave to appeal against his conviction on those charges.

The applicant was born on 1 March 1956, and he was 24 years of age at the time of offending. The two complainants, who were sisters, were AL (nee AB), who was born on 29 September 1966 and HK (formerly HB), who was born on 22 September 1967. Charges 1 to 20 on the indictment concerned offences alleged to have been committed by the applicant against AL, and charges 21 to 27 concerned offences alleged to have been committed by the applicant against HK. The applicant was convicted on charges 4, 5, 6, 10, 18 and 20 (involving AL), and each of charges 21 to 27 (involving HK).

At the time of the offences, the two complainants lived with their parents, and their younger brother and younger sister, at Mooroolbark. In September 1979, the applicant and his wife, Audrey Meyer, moved into the house at Mooroolbark, which was opposite the complainants’ home. Subsequently, the applicant’s wife gave birth to two young sons, Glen, who was born in August 1980, and Leigh, who was born in December 1981.

After the applicant and his wife moved into the neighbourhood, AL and HK often visited the applicant’s family home, either alone or together, to assist the

applicant and his wife care for their infant sons, and to use the applicant’s above ground swimming pool. As a result, a friendship developed between the applicant and his wife, on the one hand, and AL and HK. The offences, that were the subject of the charges, took place in the context of the visits by the two complainants to the home of the applicant.

Grounds of appeal

In his application for leave to appeal against conviction, the applicant originally relied on four grounds of appeal. Subsequently, he abandoned the first ground. The remaining three grounds are as follows:

2.The verdicts on charges 4, 5, 6, 10, 18 and 20 are unsafe and unsatisfactory.
3.A substantial miscarriage of justice occurred by reason of the prosecutor being permitted to cross-examine the witness Audrey Meyer in re-examination.
4.An aggregation of errors has resulted in a substantial miscarriage of justice.

In the course of our consideration of those grounds, in these reasons, it will be necessary to discuss matters which might reflect on the conduct, in the trial, by counsel, and, in particular, by the prosecutor. At the outset, we emphasise that counsel, who represented the applicant and the respondent in this application, were not the same counsel who represented the prosecution and the accused in the trial. Further, it is appropriate to observe that the presentation of the application, both by counsel for the applicant and by counsel for the respondent, was of a particularly high standard, and they both provided substantial assistance to the Court in the determination of the difficult issues involved in this application.

In order to address those grounds, it is necessary to summarise, in some detail, the evidence that was given in the trial.

The evidence

AL commenced her evidence by relating the circumstances in which she and her family became acquainted with the applicant and his wife. The first incident, described by AL, was that which involved charges 4, 5 and 6 on the indictment. At the trial, it was referred to as ‘the laundry incident’. AL stated that it was the first incident in which Conor Meyer assaulted her. She said that she was 14 years of age. The incident occurred one day in the laundry of the applicant’s home after school when she attended the Meyer’s home wearing her school uniform. Audrey, the baby (Glen) and the applicant were home. AL said that she was up against the laundry trough and the applicant was in front of her. The applicant started to touch her breasts through her school uniform, then he undid the buttons at the front and touched her bare breasts (these were uncharged acts). The applicant then put his hand down her pants and inserted his fingers inside her vagina (charge 5 — unlawfully/indecently assault a girl under the age of 16 years). He made AL feel his penis with her hand over the top of his shorts (charge 4 — unlawfully/indecently assault a girl under the age of 16 years). The applicant then knelt down, pulled AL’s pants down, and put his tongue inside her vagina (charge 6 — unlawfully/indecently assault a girl under the age of 16 years). His penis was erect at the time, and he said ‘Now look what you’ve made me do’. AL noticed that his shorts were wet. After the incident, AL went home.

The next incident, described by AL, was that which was the subject of charges 7 and 8 on the indictment, on which the applicant was acquitted. It was referred to as ‘the swimming pool incident’. AL stated that on that occasion she, together with a school friend Sharon Sanderson, visited the Meyers, and used their swimming pool. Sharon was wearing a one piece swimming costume, and AL was wearing a bikini. The applicant got into the pool with the two girls, and, a short time later, Sharon got out of the pool. Audrey Meyer then came out to the back door. AL and the applicant were then at the end of the pool. While Audrey was talking to the applicant, the applicant put his hand inside AL’s bathers and touched her bottom (an uncharged act). AL then turned around. The applicant pulled her bikini bottoms down exposing her vagina, rubbed his exposed penis between her legs (uncharged act), and partially inserted his penis into her exposed vagina (charges 7 and 8, which were alternatives).

AL next described the incident, that was the subject of charges 1 and 2 on the indictment, on which the applicant was acquitted. That incident was referred to as ‘the VFL Grand Final incident’, because it was alleged by AL to have taken place on the day of the 1980 VFL Grand Final, between Richmond and Collingwood football clubs. AL stated that, on that day, the applicant and she had driven to the milk bar to get some drinks. They then drove to a secluded area located between the football oval and tennis courts in Mooroolbark, where the applicant parked the car. He then lent over, kissed her on the mouth and placed his tongue in her mouth (an uncharged act), put his hand down her pants and inserted his fingers in her vagina (charge 1). He then exposed his penis, placed one of her hands on it and ejaculated into her hand (charge 2).

The next incident, described by AL, was the subject of charges 9 to 12, which were alternative charges, and which was described as ‘the driveway incident’. The applicant was convicted on charge 10. On that occasion, on one evening AL attended the Meyer premises wearing her school uniform. When she left the Meyer home, the applicant commenced to walk home because it was dark. AL stepped off the applicant’s veranda, and her back was pushed up against the house. The applicant then began kissing AL, placing his tongue in her mouth and touching her breasts over her clothes. She told the applicant that people would be able to see them. The applicant responded that that would not happen, because they were in dark shadows. He told her that if she told anyone, they would go to Queensland together, and AL would not see her family again. During the incident, the applicant lifted one of her legs up, moved her underpants to the side, and put his fingers inside her vagina (charge 10 — indecent assault).

The next incident, referred to as the ‘garage incident’, concerned charges 13 and 14, on which the applicant was acquitted. On that occasion, the applicant asked AL to accompany him to the garage to get some drinks from the refrigerator. When they went there, he began to kiss her, and he placed his tongue inside her mouth (uncharged act). He then placed one of his hands down her pants and inserted his fingers into her vagina (charges 13 and 14).

AL then described the incident alleged in charges 15 and 16, on which the jury was unable to reach a verdict, and which was referred to as ‘the carport incident’. On that occasion AL attended the Meyers’ home wearing her school uniform. Later the applicant walked her back home because it was dark. The incident occurred when they reached the carport, that was in front of the garage at AL’s home. The applicant placed his hands on AL’s shoulders, pushed her to her knees, and positioned her face in his groin. He then forced his erect penis into her mouth, began thrusting it in and out of her mouth, and ejaculated into her mouth.

The final incident, involving AL, was the subject of charges 17 to 20. It was described as ‘the bedroom incident’. On that occasion, she was present at the Meyer family residence. The offending took place in the master bedroom of the home. AL said that, at the time of the incident, she was lying naked on the bed. She could not recall how she came to be in that position. The applicant, who was clothed, knelt down at the end of the bed. He put his fingers inside her vagina (charge 18 — indecent assault). He then pulled a vibrator out from under the bed and asked her if she knew what it was, to which she replied ‘no’. The applicant turned the vibrator on, and put it inside her vagina (charge 20 — sexual penetration of a child aged between 10 and 16 years). As a result, she suffered pain, and asked the applicant to stop. However, he did not do so.

AL stated that all the incidents, that she described, took place over a period of four months to six months, while she was 14 years of age. She said that contact with the applicant ceased, when she went to hospital for a gall stone operation. Subsequently, she married her first husband, SR, when she was 19 years of age. In 1990, she suffered health problems, and sought assistance from a medical practitioner, Dr Graeme Edwards. During that period, Dr Edwards provided her with counselling and medication. AL subsequently divorced SR, and then remarried another man, Asim Aganovic, by whom she had two children. Mr Aganovic passed away in September 2008. In 2010, AL suffered medical problems, and became an inpatient of the Maroondah Hospital. She later suffered further health problems in 2010 and she obtained medical assistance from Box Hill Hospital. In about 2008, she also consulted a psychologist, Mr Ross Wall, who provided her with counselling.

Subsequently, AL reported the matters, that were the subject of her evidence, to the police at Knox Police Station. She made a statement to the police over a period of eight months. During her dealings with the police, she made a pretext call to the applicant from the Knox Police Station, and a recording of that conversation was played to the jury.

In the pretext call, after a brief introduction, in which they discussed their families, AL said that she was now a mother of two children, and she needed to contact the applicant because she had two children and she needed an explanation about ‘all those times we were together’. The applicant then responded ‘And it was dumb … it was just a bad bad thing mate’. He told AL she should not blame herself, that he had no explanation other than that she was a ‘super attractive girl’. AL responded ‘I was just a young girl’ to which the applicant said ‘I know, it was so wrong’. The applicant then continued ‘And I was only a young man meself, I was only 25 or something … It was just a bad time’. AL said ‘I was 14 and I was 15 …’ to which the applicant responded ‘No you were 16’. He then named the employer who he was working with at that time. He repeated that he did not want AL to blame herself or think it was her fault. He said he should not have done it, ‘I shouldn’t have even hugged’. AL responded ‘… it happened more than once, it wasn’t just a once off …’ to which the applicant said ‘It did a couple of times …’.

AL then said that it ‘pretty involved with things that happened …’. The applicant said it happened a long time ago, and ‘I know it knocked you around a bit’. He said that he should have had more control and that he lacked moral fibre.

Further on in the telephone call, AL asked if Audrey knew of the facts. The applicant responded ‘… she only thinks we kissed, but we went — did a couple of naughtier things than that, but luckily, thank Christ we never had intercourse … but it was bad enough anyway … I should never had touched ya it was just … it was just disgusting’. Further on the applicant said that AL had every right to ‘flirt and muck around’, but ‘it should only be flirt and muck around it, it shouldn’t be flirting and then stupid … it was stupid it was disgusting’. A bit further on in the call, he said that she should forget about ‘the terrible thing that happened’. He said it is different if two married people who have lived a life have an affair. He then said ‘That’s different but you were a kid and I should know — look, I was immature, that’s not excuse, but I should have known better’.

AL was cross-examined at significant length at the trial. The principal matters, addressed in cross-examination, were as follows.

AL agreed that, after the incidents had ceased, she continued to have contact with the applicant and his wife Audrey. In particular, she continued to visit the Meyer household, in order to see Audrey and the baby. She said that she was friendly towards the applicant and he was a family friend. After she married, she visited the applicant’s home in Old Kent Road, Mooroolbark. At that time, she did not have any difficulty with the fact that she was seeing the applicant, because she then did not remember what he had done to her. She said that she had forgotten the incidents, that she described in her evidence, for a period of ten years, between 1980 and 1990, during which she had no memory of them. She also said that she did not tell her friends, Sharon Sanderson or Melayne Watson, about the incidents.

AL said that she first recollected the incidents in 1990, when the applicant visited the unit in Lilydale in which she was then living with her first husband. The applicant was an electrician, and her husband had asked him to do some work in connection with a house that they were planning to build. On the occasion of that visit, when her husband was not home, the applicant was lying on top of her on the kitchen floor holding her hands above her head, and he raped her. When she struggled, he said to her, ‘You didn’t put up a fight like this ten years ago’. She said that that remark by the applicant unblocked her memory. She said that it all just ‘hit her’, and she remembered seeing a brick wall in front of her.

Counsel for the applicant then put to AL that in 1990 she and the applicant had engaged in a romantic affair, in which there was hugging, kissing and heavy petting, but no penetrative sexual activities. AL denied those suggestions, and she denied the suggestion that, at that time, she went to the pictures with the applicant and that she went on a drive up a mountain with him.

AL denied the suggestion, put in cross-examination, that it was not until August 1981 (the first birthday of the Meyer’s baby Glen) that she regularly started to visit the Meyers. She said that after she had a gall bladder operation when she was 15 years and 8 months old, she ceased attending the Meyers’, because she was really sick. She agreed that her father, who was strict, had directed her sisters and her to change out of their school uniforms when they got home. Despite that parental direction, she did visit the Meyer home wearing her school uniform.

AL was cross-examined about differences between her evidence at the committal proceeding, and the evidence that she gave at the trial, concerning the laundry incident (charges 4, 5 and 6). She said that she had forgotten each of the incidents after they had occurred. In other words, between each incident, she had forgotten about the previous incident. She said after each incident occurred, she would have a shower, and wash the incident away and put it out of her mind.

AL was next cross-examined about differences between her police statement, and her evidence, relating to her description of the swimming pool incident, which was the subject of charges 7 and 8, and on which the applicant was acquitted. The cross-examination focused on the position of Audrey Meyer at the time that the incident was said to have taken place. It was also put to the witness that the Meyer swimming pool was not functioning at the time of the alleged offence (the summer of 1980 to 1981), and a photograph of the swimming pool, in an empty state, was produced to the witness.

Counsel also cross-examined AL about the Grand Final Day incident, that was the subject of charges 1 and 2, and on which the applicant was also acquitted, and about the carport incident, that was the subject of charges 15 and 16, and on which the jury was unable to reach a verdict. In respect of that incident, she did not accept the suggestion, put in cross-examination, that there was no carport at her parents’ house until 1998. AL was then cross-examined at some length about her description of the master bedroom at the Meyers’ house, that was the subject of charges 18 and 20 (on which the applicant was convicted). She was cross-examined, in particular, in relation to differences between her description of the bedroom, and a photograph of the bedroom that was shown to her in cross-examination.

Counsel next cross-examined AL about her history after the incidents had concluded. She said that she had a mental breakdown after she had split up with her first husband, and she consulted Dr Protassow about her emotional and psychiatric issues. She said she told Dr Protassow about the incidents, which were the subject of her evidence. Her second husband, who she married in April 1997, committed suicide in September 2008. Before that occurred, she was dealing with depression. After his death, she became severely depressed in April 2009, and she was admitted to the psychiatric ward of the Maroondah Hospital for four or five weeks. In October 2010, she again became severely depressed and suicidal. She said that was not due to her husband’s death, but because she was having nightmares about the applicant’s abuse of her.

AL reiterated that she had forgotten about the incidents until 1990, when she was raped by the applicant. She agreed that she had then waited a further 24 years before making a statement to the police. She said that when she was with her second husband, she shut the memories out again, but subsequently she started having nightmares. When her son turned 14, she saw on the television news that a celebrity had been arrested for sexual assault, and she thought that she had to deal with her memories of the applicant’s abuse of her.

AL agreed that she had never told her sister HK about the details of what the applicant did to her. She said that she did not tell Melayne Watson that the applicant had sexually abused her in the shower. She also did not remember saying to her friend Sharon Sanderson on one occasion that her first sexual experience was with the applicant, and that it was unwanted and unpleasant.

In re-examination, AL said that she did not have mental health problems until she was 24 years of age, when she started having nightmares about what had happened. Accordingly, she went to see Dr Edwards and subsequently Dr Protassow. When she met her second husband, she was able to block the memories out. However, in about 2008, when her daughter was about two years of age, she started having flashbacks and nightmares, so she commenced to attend the Eastern Centre Against Sexual Assault (ECASA). At about that time she was hospitalised. Her husband had died suddenly, and the nightmares and anxieties had continued to a point that she could not cope. Finally, she went to the police, because of the work she had been doing trying to learn to cope with her anxiety and nightmares. When she saw the news about the celebrity being charged with sexual assault, she realised it was not her fault, and she could not hold the secret anymore.

HK gave evidence as to the circumstances in which she visited the Meyer home, and of the four incidents which were the subject of the charges against the applicant. She said that she came to know Conor and Audrey Meyer shortly after they had had moved into their home. HK was then 13 or 14 years of age. She said that the two families were friends. Her father was strict, and she regarded the Meyers as a young and trendy couple, and their home was somewhere to go to and have fun. Originally, her relationship with Conor Meyer was as a friend, but he would make suggestive comments to her, such as ‘[She] looked hot, [she] looked nice’. She used the swimming pool at the Meyers’ house, she listened to music with them, and danced and watched television with them. In the lead up to the incidents, that were the subject of the charges, the applicant commenced to make comments about her breasts, saying that she had ‘grouse boobs’.

Each of the incidents described by HK occurred when she visited the Meyer home, and Conor was there, but Audrey was not at home. On the first occasion, HK was dancing with the applicant. He went to the kitchen to get a drink. When he returned, she was facing the window. The applicant came up behind her, put his hands on her hips and kept dancing. He pulled her in close, and his hands went up her top and under her bra. He touched her breasts, and said ‘You’ve got grouse boobs’. HK said ‘I have to go home’, and she left. That incident constituted charge 21 (indecent assault).

The second incident, which comprised charge 22 (indecent assault), again occurred in the lounge room, when HK and the applicant were dancing. On this occasion, the applicant was in front of her. He lifted up her top, told her she had ‘grouse boobs, best boobs of anyone’, put his head over her shoulder, and touched both of her breasts.

The third incident, described by HK, was the subject of charges 26 and 27. On that occasion, she was seated on a green velvet couch in the applicant’s house watching television. The applicant went to the toilet. When he returned, he knelt on the floor in front of her between her legs, lifted up her top, and told her she had ‘grouse boobs, best boobs around’. He then sucked her left breast (charge 26 — indecent assault), and rubbed HK’s thigh with his hand near her groin (charge 27 — indecent assault). HK pushed his hand away and said ‘I’m not ready for this’. The applicant responded, ‘It’s okay it’s normal you’re beautiful’. The applicant then walked her down the driveway and across the road to her home.

The final incident described by HK was the subject of charges 24 and 25. On that occasion, when HK knocked on the front door, the applicant opened it, and she walked into the lounge room. The applicant walked behind her and put his arms over her shoulders as if to hug her. He told her she was beautiful. His arms were crossed over her chest and he rubbed her body and breasts (charge 24 — indecent assault). The applicant’s right arm went down her waist inside her underwear and he touched her vagina. She tried to pull his hand away, but he resisted her, and penetrated her labia with his fingers (charge 25 — indecent assault). She pushed his hand away, and said ‘I’m not ready for this’. The applicant responded ‘It’s okay, it’s okay, it’s natural’. HK then left the house.

After that incident, HK kept her distance. She made a point of only visiting the Meyer house when Audrey was home. She said that the assaults had taken place over a period of months. At the time of each assault, she was aged 14 years, attending Year 8 in high school.

HK stated that sometime later (in fact in about 2008), her sister AL suffered mental health problems that were like a nervous breakdown. AL first went to the Maroondah Hospital and then to the Box Hill Hospital. At that time, HK attended an appointment that AL had with a psychologist, Ross Wall. He told her that the reason AL had a breakdown was because she had been assaulted as a child, and subsequently, ten years later, again by the same person. At one of the appointments, it was mentioned that the person who did it was a neighbour. When HK heard that, she said, ‘I think I know who it is, because he tried stuff on me as well’. Subsequently, HK spoke to the police about her situation. AL had already spoken to the police, and the informant, Detective Senior Constable Luke Collyer, had contacted HK and asked her if she would talk to him.

In cross-examination, HK stated that she had first remembered the first incident (the subject of charges 26 and 27) during the period leading up to the committal proceeding. Thus, she first remembered that incident thirty five years after the incident had occurred. She had remembered the other incidents, described by her, after AL had had her breakdown in 2011. She agreed that, therefore, between 1981 and 2011, she had forgotten that the applicant had done those things to her. She only remembered them when AL told her what the applicant had done to her. Initially, AL told her that the applicant had assaulted her. It was only subsequently that AL told her that the applicant had also raped her.

HK stated that she had tried to forget the events, and that she had done that successfully by putting them to the back of her mind and moving on. In addition, she had waited a number of years after AL had a breakdown before she made her statement to the police, because she did not want to face it herself. She was then more concerned about the health of her sister.

HK agreed that after the incidents occurred, she continued to have contact with the applicant and Audrey. She invited them to her wedding in 1987, because she wanted Audrey to attend. She agreed that after the third incident (the subject of charges 26 and 27), she told the applicant she did not want him to do what he was doing. But she returned to the Meyer home one week or so later, when the fourth incident occurred. She could not explain why she had returned to their house, so shortly after the third incident.

HK agreed that, when she and her siblings were children, they were directed to change out of their school uniforms when they got home. She did not remember visiting the Meyer home while she was in her school uniform. She said that she did not tell her father what had happened, because her father was quite scary. She was concerned that if she told her father she would be told that she had wanted it and liked it.

HK said that on each occasion when the incidents occurred, it was obvious to her, shortly after her arrival at the Meyers’, that Audrey was not home. Nevertheless, she was happy to remain at the house. She continued to visit the Meyer home until they moved to Old Kent Road. However, she would only do so if she knew Audrey was there. She could tell that Audrey was home, by seeing if her car was in the driveway.

Melayne Watson gave evidence that she attended Mooroolbark Primary School and Mooroolbark High School with AL. They were good friends. During that time, she came to know the applicant and his wife Audrey, and she would visit them with AL. On one occasion, after they had visited the applicant and Audrey, AL said to her, ‘Melayne, promise me don’t go to [Conor] and [Audrey]’s by yourself’. Subsequently, AL had another conversation with Melayne about the applicant, within a year of Melayne leaving school at the age of 16. AL told her that the applicant used to ‘touch her up, feel her up, something sexual, but I can’t remember’. AL told her that it always happened in his house, and she also said that something had happened once in the shower. Melayne said that AL became angry with her while they were talking, because she did not think that Melayne was taking it seriously.

In cross-examination, Ms Watson said that they never discussed the matter again. She also said that she never swam in the Meyers’ swimming pool. She always got on very well with the applicant and Audrey, and she invited them to her wedding in 1985. She also visited the Meyers in their home in Old Kent Road, and he acted always appropriately towards her and her husband.

Sharon Rogers (formerly Sharon Sanderson) also gave evidence as to her friendship with AL when they attended Mooroolbark East Primary School and Mooroolbark High School together. In the course of that friendship, she came to know the applicant and his wife Audrey, and she visited their home three or four times. On one occasion, when she was 14 or 15 years old, she was walking home from school in company with AL and another school friend, Jacquie Burgess. Jacquie brought up her first sexual encounter. AL said that her first sexual encounter was with her neighbour Conor, and that it was forced on her. She was unemotional when she said this, and Sharon was quite shocked. Subsequently, after AL married her first husband SR, Sharon visited their home in Mount Evelyn. AL told her that she was struggling with her marriage, because of what had happened previously, when she had been raped in her first sexual encounter.

In cross-examination, Ms Rogers said that she had a vivid recollection of the conversation that took place at the Mount Evelyn home, because of the unemotional way in which AL had said that she had been raped in her first sexual encounter.

SR, AL’s first husband, said that he had commenced a relationship with AL when she was 16 years of age. He regularly visited her home in Mooroolbark, and he came to know the applicant and Audrey. After they were married, and were living in Lilydale, they had plans to build a home on a block of land they had purchased. SR asked the applicant to provide a quotation for the cost of the electrical work. On one occasion, when SR went home earlier than expected, he saw a yellow van parked outside that looked like the applicant’s vehicle. When he pulled up he saw the applicant coming out of the unit looking flustered. The applicant was in a hurry, and he drove off quickly. SR walked into the kitchen. AL seemed quite upset. She said that the applicant had come onto her, that he was trying to kiss her, and that she fought him off. She was distressed, but she did not want to call the police. SR said that it looked as if AL had been in a struggle, her clothes and hair were disarranged. SR did not see the applicant at their home in Lilydale again after that occasion.

SR said that after that incident, his relationship with AL changed, because she became more remote. She sought medical treatment, seeing her general practitioner, Dr Protassow, and a counsellor. Some years later, after SR and AL had divorced, he met her at a birthday party at a mutual friend’s house. AL pulled him aside and asked if he would be a witness, because she wanted to sort out the occasions when she was raped. SR said that he was shocked to understand that she had been raped. She told him it had occurred when they were married.

In cross-examination, SR said that after AL had told him that he had tried to have sex with her, he wanted to pursue the applicant, but she told him not to. He denied that on the occasion on which he came home and saw the applicant, AL was having a cup of tea with him.

SR also said that AL commenced to see Dr Protassow in 1991. She saw him often. A year later, in 1992, AL told SR that she wanted to separate from him. It was 20 years later, at the party, that AL said that she wanted to talk to him about being raped. He said that information came out as a ‘bolt out of the blue’. Before that night, AL had spoken to him about things that had happened to her before they were married. She told him she had been taken advantage of, and she had come close to thinking she might have been pregnant earlier. She did not know when it happened, but she thought it was when she was 15 or 16 years old.

The next witness was CB, the mother of AL and HK. CB gave background evidence about their home, and AL’s health problems. She said that neither AL nor HK had ever spoken to her about the assaults, that were alleged to have been committed by the applicant. At one stage, she was told by AL that she was going to go to the police, and that HK would support her. Subsequently, HK told CB that the same person had also tried to assault her. However, neither AL nor HK told her the identity of the person who was responsible for the assaults.

In cross-examination, CB stated that her children had been required to change out of their school uniforms into civilian clothing when they got home. She confirmed that AL had never told her about the sexual assaults alleged by her. The only time she learnt about them was when, at the request of AL, CB and her husband attended a consultation with the counsellor, Ross Wall, who told them about them. On the way home after that consultation, HK said, ‘He tried the same thing on me but did not get anywhere’. HK refused to say who the culprit was. CB and her husband were not friends with Conor Meyer, and they were not happy that the Meyers were invited to the weddings of AL and HK. However, but both girls wanted the Meyers to attend them.

GB, the father of AL and HK, gave evidence, concerning a number of background matters. He said that he did not find out about the sexual assaults, alleged by AL, until after she had been an inpatient at Maroondah Hospital and Box Hill Hospital. When he learnt of the assaults, GB asked AL who had perpetrated them, but she would not tell him. She said, ‘I’m not going to tell you because he’s threatened to harm our family’. GB also stated that he and his wife attended a meeting with the counsellor, Ross Wall. AL and HK were present. At the meeting, Mr Wall said that AL had been raped when she was 14 years of age, and subsequently when she was 24 years of age.

In cross-examination, GB stated that he had built the carport to his premises in 1998. He first learnt of any allegations of sexual abuse of AL after AL and her first husband (SR) had split up, when she told him that she had been sexually assaulted and raped when she was 24. She said that she had told her husband what had happened, but he would not believe her. GB told AL she should go to the police, but she said she was not ready to do so. She said she was already speaking to a counsellor about it.

WB, the brother of AL and HK, also gave evidence. He said that after AL had her second breakdown and was hospitalised in Maroondah Hospital, he became aware that she was making allegations of sexual assaults. She told him that she had been molested as a child, and that in later years the same person had raped her. GB said that on one occasion, when AL told him about those matters, HK was also present. HK said that she had been molested by the same man, but it was not as bad as AL.

Dr Graeme Edwards had conducted a medical practice in a clinic in Mooroolbark in the early 1990s. He was first consulted by AL in about 1991. Unfortunately, the clinic, where he had left his notes, was burnt down and his notes were not available to him. However, he recalled that, on the first consultation, AL was the most psychologically emotionally distressed person he had ever seen. During the whole of the first two consultations, which each lasted about half an hour, she sat in his room and cried. On the third consultation, she told him that she had been raped by a man in her own home recently. She was totally distraught and she did not go into much detail. In subsequent consultations, she described the incident in more detail. She said she had been well acquainted with that person over some period of time. Dr Edwards said that he diagnosed AL to suffer from post-traumatic stress disorder. He prescribed medication and sent her to a psychologist. He himself continued to see AL quite regularly for two years, and less regularly for a further three years. During subsequent consultations, it emerged that she had been sexually assaulted in the past by the same person, who had raped her more recently. Dr Edwards understood that he was the first person who AL had told about the assaults. He referred her to counselling and in addition AL undertook self-defence classes that were beneficial for her.

In cross-examination, Dr Edwards disagreed with the suggestion that post-traumatic stress disorder can result from a large number of different circumstances. He said that there is only a small number of circumstances that can give rise to such a disorder. Dr Edwards stated that AL had told him that the rape incident at her home had brought back a flood of memories from the past of sexual assaults on her. She told Dr Edwards that she had been sexually assaulted over a significant period of time.

Mr Ross Wall, a registered psychologist, saw AL in April 2008 to treat her for post-traumatic stress disorder. AL gave him a history of a sexual assault in her childhood. In October 2008, Mr Wall contacted the Box Hill Sexual Assault and Child Offence Unit of Victoria Police, so that a police member could give AL information as to what might happen, if she was to report the matter to the police. In May 2009, Mr Wall called a meeting with AL and her family to discuss her situation. It was a general discussion about the sexual assaults of AL in her childhood. Further meetings took place in subsequent months, which were mainly concerned with guiding family members to support AL. Subsequently, in November 2010, Mr Wall contacted Box Hill police and spoke to a police officer requesting that AL be given information as to procedures that would apply if she made a complaint of sexual assault. A meeting took place between AL and police on 25 November. However, AL was extremely anxious, and the meeting did not last long. A further meeting took place in December, because AL had been admitted into the intensive psychiatric unit in Maroondah Hospital.

In cross-examination, Mr Wall said that AL had told him that she was 13 or 14 years of age when she was sexually assaulted. Mr Wall diagnosed that she had post-traumatic stress disorder as a consequence of that abuse. Mr Wall said that AL had not told him that her memories had been blocked, or that there was any triggering incident that caused her memories to become unblocked.

Dr Andrew Protassow also gave evidence. He took over AL’s case after Dr Edwards left the clinic. Dr Protassow diagnosed that AL had an anxiety problem that was difficult to treat. In cross-examination, he said that he did not recall anything specific about her case or the cause of her anxiety. In particular, he did not recall AL saying to him anything about a sexual assault. The first occasion, on which he heard of any allegation of sexual abuse of AL, was when the informant spoke to him in 2015.

Audrey Meyer, was the next witness. She married the applicant in 1978. They moved into the address at Mooroolbark in September 1979. She said that she did not meet the B family until 1981, following which the children, and, in particular, AL and HK, attended their home at different times. When they moved into the property, there was an above ground swimming pool in place. The family used it for the first summer, but it was removed in 1982. Initially, AL and HK would come to their home together, but subsequently they did so separately. Each girl would help her with the babies, who were born in August 1980 and December 1981 respectively.

Mrs Meyer said that she did not see anything untoward take place between AL and her husband, except on one occasion, which occurred when AL was about 17 years of age. Mrs Meyer happened to be looking out the front window, and she saw her husband and AL share a hug and kiss at the bottom of their driveway. When the applicant came home, she confronted him, and he apologised. On the next day, when AL visited, Mrs Meyer confronted her and they had a discussion about it. Mrs Meyer also gave evidence about the circumstances in which the search warrant was executed on their premises on 9 June 2015 and the applicant was arrested.

In cross-examination, Mrs Meyer said that the B family did not commence to visit her home until February or March 1981. AL always was very friendly towards the applicant, and she was a very ‘touchy feely’ sort of person. AL and HK were not wearing their school uniforms at all when they visited their home. They would leave before dark, because they had to be home for dinner.

Mrs Meyer described her daily routine when her children were young. There was no occasion when AL came to her place and she left her alone with the applicant. She said that more often, when AL visited, she would be home, and the applicant would be working. Mrs Meyer said that she had a very good relationship with AL, until she and her husband left the Mooroolbark home in 1985. AL and her husband SR came to visit them in their new house in Old Kent Road. In addition, Mrs Meyer held a surprise 30^th birthday party for the applicant (in 1986), which AL attended with her husband.

Mrs Meyer said that in 1990, she learnt that her husband and AL had an affair, when the applicant told her about it. He said he had been seeing AL, and he felt bad about it. He described it as a ‘waist up affair’, with no sex involved.

Mrs Meyer then said that she remembered the Grand Final Day of 1980, because the applicant and his family were Richmond supporters, and Richmond defeated Collingwood on that day (this evidence was relevant to charges 1 and 2, on which the applicant was acquitted). She said that the applicant attended the match, and, after it, the whole family, including the applicant, assembled at his parents’ home in Box Hill for a celebration. Mrs Meyer also gave detailed evidence about the layout and furnishing of their bedroom at the Mooroolbark home (which was relevant to charges 18 and 20, on which the applicant was convicted). She denied that she had a vibrator when they were living at Mooroolbark, and said that she and her husband only acquired two of them when they had moved into the Old Kent Road premises.

Mrs Meyer then gave evidence about the location of the above ground swimming pool at the Mooroolbark premises (that evidence was relevant to charges 7 and 8, on which the applicant was acquitted). She said that it was a shallow pool, and any person standing in the pool could be easily seen from the back doorway. She also said that the pool was not functional during the summer of 1980 to 1981, because there was a tear in the liner of it, and the applicant and she did not have sufficient funds to replace it. The witness then produced photographs of the weddings of AL and HK, and of their engagement parties.

Mrs Meyer said that when she made a statement to the police after the applicant was arrested, she did not mention the incident, when she observed the hug and the kiss between the applicant and AL, because she could not think straight on that day. She said it was an overwhelming and ‘horrendous’ day. She said that she could not recall if Sharon Sanderson ever swam in their swimming pool. Nor could she recall that the applicant walked either AL or HK home. She said that, at the beginning of the trial, the police had contacted her to provide a further statement, but she did not do so, because she had consulted with the applicant’s counsel.

The prosecutor then successfully applied for leave to cross-examine Mrs Meyer, for the purposes of re-examination, pursuant to s 38 of the Evidence Act 2008. As noted, that ruling, by the judge, is the subject of ground 3 of the application for leave to appeal.

In cross-examination by the prosecutor, Mrs Meyer stated that, in 1990, the applicant confessed to her about the affair that he had had with AL. She denied that he first confessed to her about that matter in 2015. She said the confession had had a detrimental effect on their marriage, and she had attended counselling in Croydon. She could not remember the location of the service, the name of the service or the name of the counsellor. She was cross-examined as to why she did not include, in her statement, reference to the incident, in which she had seen AL and her husband kissing. She responded that her head was a ‘mash mush’ that day, as her house had been raided by police. She had said in her statement that one night she looked out the window and had seen Conor giving AL a ‘big hug’, but she did not refer to the kiss, because she did not think of it at that time. She said she felt overwhelmed on that day. She said that she did not think it was inappropriate for people, who knew each other, to engage in a hug. She agreed that she did not mention, in her statement, that in 1990 her husband had confessed to having an affair with AL. Again, she explained that her head was a ‘mush’ on that day, and she could not concentrate properly.

She said that after speaking to the police, she saw an independent barrister, who she told that her statement was not correct. She agreed that, at an early stage, in the trial, a member of Knox Police telephoned her asking her to make a further statement. She said that she needed to talk to her husband’s barrister, which she did. She then said that she spoke to counsel who acted for the applicant. She also agreed that she had attended two conferences with the barrister at which her husband was not present.

The next two witnesses were members of the Knox Sexual Offences and Child Abuse Investigation Team of Victoria Police. Leading Senior Constable Diane Kelly gave evidence about the arrest of the applicant on 9 June 2015 and the execution of a search warrant at his home in Old Kent Road. She described how a vibrator was found in the bedroom of the home. The informant, Detective Senior Constable Luke Collyer gave evidence that he was first contacted by AL on 7 April 2015, and he commenced to take a statement from her on 1 May 2015. There were difficulties with that process, because AL became very nervous and she was experiencing an anxiety issue. Subsequently, a number of appointments took place over the next four and a half months, and a statement was ultimately signed on 24 October 2014. On 30 October, Senior Constable Collyer met with HK and she made a complaint. He took a statement from her between that date and 18 December 2014. Senior Constable Collyer gave evidence as to the manner in which the pretext call was set up between AL and the applicant. He also had researched the date of the patent of the vibrator that was located at the Old Kent Road premises, and he ascertained that the patent was originally filed in September 1975.

In cross-examination, Senior Constable Collyer confirmed that the applicant, who was then 61 years of age, had no previous convictions. He had found no record linking the applicant to the vehicle described by AL in relation to the incident (that comprised charges 1 and 2, on which the applicant was acquitted). He said that when he first spoke to AL, she said that she had been raped on multiple occasions by the applicant when she was aged 14 years.

After the prosecution closed its case, the applicant gave evidence. He denied committing any of the offences charged against him. He said that he first met the B family in March or April 1981. Following that, he had contact with AL and HK, until the applicant and his wife sold their home in Mooroolbark in 1985. When AL visited their home in Mooroolbark, she was very friendly, and she liked to touch him. She complained that her father was very strict. He said that he never went for a drive in the car with AL, and he did not walk her home at night. The applicant said that AL did not visit their home wearing her school uniform, and she was not at their home when it was dark or at night time.

The applicant said that his wife, Audrey, was a ‘stay at home’ mother. Whenever he got home after work, she was either preparing the meal or bathing the children. He said that the swimming pool at the house was not operative in the summer of 1980 to 1981. It was leaking a lot of water, so he drained the pool. He described how he attended the 1980 Grand Final, and subsequently attended the family celebration at his mother’s house in Box Hill. He said that he brought the first vibrator two years after they had moved to the Old Kent Road property (1987).

The applicant said that on an occasion in January or February 1983 he had kissed and hugged AL at the bottom of the driveway. When he went inside his home, he ‘got the rounds of the table’ from his wife and he apologised to her profusely. He said after they left the Mooroolbark premises and lived in Old Kent Road, he saw AL a couple of times when she visited them there. Both AL and HK attended his 30^th birthday party (in 1986). Audrey and he were invited to the weddings of both HK and AL.

The applicant said that subsequently, in 1990, he bumped into AL at a service station on the Maroondah Highway. They chatted, and she said she would like to catch up. As a result, he visited her home in Lilydale. When he arrived, her husband was not at home. After having a cup of coffee, they moved to the couch, where they kissed and were ‘fooling around’. When they heard AL’s husband pull up in the driveway, they separated, and he left ten minutes later. He said that, after that, AL and he would meet. He would pull his vehicle up behind her vehicle. One of them would get into the other’s vehicle. Their relationship was very intense and physical, with kissing and fondling of the breasts and rubbing each other, but it was ‘all above the waist’. On one occasion, they went for a drive in the country, but they realised that their relationship was not going anywhere, so they agreed not to continue. Following that, SR telephoned him, and told him to leave his wife alone, and the applicant responded ‘I already have’.

Without analysing those matters in any detail, in our view each of the interjections were not warranted and should not have occurred.[61] One instance will suffice. In the course of the cross-examination concerning the bedroom incident that was the subject of charges 18 and 20, counsel addressed questions relating to the witness’s recollection of matters of detail relating to the Meyer bedroom, including the colours of the doona on the bed, the type of the pillows on the bed, and the colour of the carpet and curtains. He then put to the witness, who agreed, that she had no recollection of how she came to be lying naked on the bed in that room, and as to how she left it. He asked the witness to explain why she could remember, in detail, the furnishings in the bedroom, but she could not say anything about how she got there or how she left it. The judge (without there being any objection by the prosecutor) interjected that the question was problematic, because it was an argument. While, it must be acknowledged, there were some issues relating to the question, nevertheless, it was a legitimate matter to be addressed in cross-examination as a basis for a submission later to be made to the jury by defence counsel in final address.
[61]R v Sharp [1994] 1 QB 261, 273.

In addition to those matters, counsel for the applicant also sought to rely on some interventions by the judge in the course of the trial that, it was submitted, were of assistance to the prosecution. Without canvassing those interventions, it may be fairly said that they did provide some assistance to the prosecution, but, overall, not unfairly so. We do not consider that any of them add to the force of the point sought to be made in respect of the fifth incident.

The principles, relating to the intervention by a judge in the course of a criminal trial, or indeed any trial, have been discussed in the authorities over a number of years, and are well understood.[62] The relevant principles were stated by the Full Court of this State in R v Mawson,[63] in which the Court (consisting of Winneke CJ, Adam and Barber JJ) stated:

It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice. In those circumstances, such a miscarriage may result for any of a number of reasons. It may, for instance, involve an impairment of a party's opportunity of putting his defence fully and fairly to the jury. An illustration of that kind of miscarriage is shown by the case of R v Clewer(1953) 37 Cr App R 37. The miscarriage may result from preventing witnesses at the trial from telling the full account of the facts as they understand them to be. An illustration of that kind of miscarriage is provided by the case of R v Bateman(1946) 31 Cr App R 106. Such a miscarriage may result from an apparent identification by the trial judge with one or other party to the litigation. A miscarriage of that kind is illustrated by the case of R v Cain(1936) Cr App R 204, or again the miscarriage may result from the jury being led to believe from the judge's intervention that he is himself convinced of the guilt of the accused person. The illustrations given are sufficient to indicate how this kind of departure from the due and orderly processes of trial may result in a miscarriage. It also becomes apparent that a departure from due and regular process in any such respect as those mentioned, may infringe another fundamental principle of criminal law, namely, that criminal justice must not only be done but must also appear to be done.[64]

[62]See, eg, Yuill v Yuill [1945] 1 All ER 183; Jones v National Coal Board [1957] 2 QB 55; R v Perks [1973] Crim LR 388.

[63][1967] VR 205 (‘Mawson’).

[64]Mawson [1967] VR 205, 207–208. See also R v Campbell, Godfrey & Moran [1970] VR 120, 127–8 (Winneke CJ, Gowans and Newton JJ); R v Esposito (1998) 45 NSWLR 442, 472 (Wood CJ at CL); R v Lars (1994) 73 A Crim R 91, 125–26 (Wood, Mathews and Badgery-Parker JJ).

In more recent years, the principles were restated by this Court in Piccolotto v The Queen:

The power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted. Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible. A trial judge who does not intervene to prevent undue delay or to ensure that the parties focus upon the critical issues may otherwise be the subject of criticism by an appellate court. That said, it is to be expected that such objections to improper or irrelevant cross examination, at least in the first instance, should be raised by the prosecutor. If the trial judge felt that the prosecutor was not discharging his duty, he should have raised those concerns with the prosecutor in the jury’s absence so that it would not be necessary for the judge to intervene in the jury’s presence and be seen to be stepping into the arena of dispute.
Secondly, as the conduct of counsel affected the proper course of the proceedings, the judge was entitled to reprove counsel to ensure that witnesses were treated fairly and that the court’s time was not wasted. In doing so, judges, being human, can be expected to react with impatience or irritation from time to time. They may sometimes have to be strong and forceful but they should, no matter the provocation, comport themselves with dignity.
If the trial judge frequently intervenes by correcting and rebuking defence counsel, even where the interference is justified and the mode of intervention is restrained, the risks may arise that the jury will infer that the judge has formed an unfavourable view of the merits of the defence case or, at least, of counsel whose conduct is in issue. A judge’s comments must not convey the impression, whether by intervention or otherwise, that the defence is ‘hollow.’ Further, and quite distinct from the risk that the jury might conclude that the judge did not view the defence case with favour, trenchant criticism of counsel carries with it the danger that the jury, acting upon the impression created by the judge, may have concluded that counsel’s conduct reflected a lack of judgment, or incompetency, so that valid arguments or points taken by counsel would then not receive the consideration due to them. For such reasons any sustained reproof or detailed criticism should be advanced as far as possible in the absence of the jury.[65]

[65]Piccolotto v The Queen [2015] VSCA 143 [41]–[43] (Redlich, Santamaria and Beach JJA).

As we have discussed, there were a number of interventions by the judge in the case, which are matters of concern. The preponderance of them did occur during the cross-examination by defence counsel of AL. Thereafter, the judge, while not refraining from intervening, was less intrusive in the conduct of the case by both the prosecutor and more particularly by defence counsel. It was not put, on this application, that the interventions alone were sufficient to constitute a substantial miscarriage of justice. However, a number of the interventions, and the recurrence of them during the cross-examination of AL, who was a key prosecution witness, were, as discussed, matters of concern as to their potential to impact on the fairness of the trial, in the manner described in the foregoing passages from the judgments in Mawson and Piccolotto.

The sixth incident, that is relied on in respect of ground 4, arises from the circumstance that, when each of the complainants gave their evidence, a screen was placed in the Court in order to block the applicant from the direct line of sight of the witnesses as they gave their evidence, as permitted by s 360 of the Criminal Procedure Act 2009. As a consequence of that arrangement, s 361 of the Act required the judge to warn the jury that it must not draw any inference adverse to the accused, or give the evidence any greater or lesser weight, because of the making of those arrangements. Although the judge gave the jury some directions concerning the arrangements, and why they were in place, he did not give to the jury the direction mandated by s 361. On this application it was submitted that the legislature, having seen fit to require that a particular direction be given to the jury, the absence of that direction must be treated as a matter of some substance, regardless of the fact that defence counsel at trial did not take any exception to the direction actually given to the jury by the judge.

At the commencement of the trial, the judge gave some preliminary directions to the jury. In doing so, he told the jury that in Victoria in cases in which it is alleged that a sexual assault has occurred, provisions have been made for alternative arrangements for the giving of that evidence, such as that which was to be adopted in the present case. The judge told the jury that this was not an exceptional arrangement, but that it occurred ‘in all cases’. He described to the jury the variety of differing arrangements that can be made in order to facilitate the giving of evidence by persons who complained of sexual assault. He explained that because the evidence may involve recounting allegations in respect to which there are strong emotions, one method that is utilised is to screen or shield the witness from the accused person. The judge emphasised that that process was ‘not an unusual procedure, it happens very often, and it’s done because like all the other alternative arrangements they are seen fit to facilitate rather than create problems inside the Court’.

On the next day, AL was called to give evidence. The judge again pointed out to the jury the arrangement that was in place, and then AL proceeded to give her evidence.

Clearly, the judge did not direct the jury in the terms specified by s 361 of the Act. That omission was of some moment. By enacting s 361, the legislature had sought to address a particular risk that the jury might engage in unfair reasoning against the accused arising from measures, permitted by s 360, that are designed to make the experience of a complainant, in giving evidence, less daunting. The judge did explain to the jury that the arrangements, that were adopted in that case, were commonplace in all cases involving allegations of sexual assault. That explanation, repeated during the preliminary direction, was addressed to the concern to which s 361 is directed. However, it lacked the direct impact that a direction, in the terms specified by s 361, would have had. In particular, it failed to expressly negate the risk that the jury might draw an adverse inference against the applicant arising from the steps taken to assist the complainants to give evidence against him. Defence counsel did not object to the direction so given by the judge to the jury. However, the fact that he did not do so did not detract from the right that the applicant had, as an accused person, to have the jury directed in the terms specified by s 361.

The seventh incident concerns evidence adduced by the prosecution as to the very significant mental health problems suffered by AL after the breakdown of her two marriages. It was submitted that the prosecution should not have been permitted to adduce expert evidence that there was no other possible cause of the difficulties suffered by AL, other than the sexual abuse of her by the applicant. Counsel for the applicant contended that the evidence, so admitted, bolstered the complainant’s credit, by suggesting that the abuse had in fact occurred. It was contended that the evidence involved a boot-straps form of reasoning, because the opinions, of the medical practitioners and counsel, to that effect, were entirely dependent on the acceptance of the complainant’s own account.

In response, counsel for the respondent contended that the applicant did not object to the calling of Dr Edwards, Dr Protassow and Mr Wall for a good reason. In particular, defence counsel sought to rely on those witnesses in order to impugn the credibility of AL, concerning the details of the complaint that she made to them, the timing of those complaints, and other events that occurred in the complainant’s life at the time of her diagnosis. Further, the prosecutor was not permitted to elicit evidence of opinion from those witnesses as to the veracity or reliability of the account given by AL. Their evidence was limited as to whether their diagnoses were consistent with the history given by the complainant.

As already noted, in her evidence in chief, AL gave evidence as to her circumstances after her first marriage failed, and after her second husband died. That evidence was connected with the circumstances in which AL ultimately came to make a complaint to the police about the allegations of sexual assault against her by the applicant. That evidence was not objected to. Indeed, AL was cross-examined about it, and in particular she was cross-examined in some detail, concerning the two severe bouts of mental illness that she suffered in 2009 and 2010. That cross-examination was directed to impugning the circumstances in which, and reason why, AL attended the police, and to undermining the quality of her memory of the events described by her in her evidence. In our view, the evidence adduced from Dr Edwards, Dr Protassow and Mr Wall was relevant to that issue. It is not put that the witnesses did not have sufficient expertise to express the opinions given by them in evidence. They were, correctly, precluded from expressing any opinion as to the credibility or otherwise of the complaints made to them by AL.

Further, it was quite evident to the jury, that the validity of the diagnoses made by each of the two doctors and the counsellor was dependent upon the validity of the history given to them by AL. Juries are regularly instructed, and understand, that the quality and validity of an expert witness’s opinion is necessarily dependent on the accuracy of the information on which the opinion is based. We do not consider that the views, expressed by the two medical practitioners and Mr Wall, did enable the prosecution to engage in a ‘boot-straps’ form of reasoning in the present case. Accordingly we do not consider that the sixth point, relied on in support of ground 4, is of substance.

The eighth incident concerns a direction given by the judge to the jury in his final charge. The judge, having given to the jury the standard directions relating to the use which it might make of inconsistent statements made by witnesses, told the jury (quite correctly) that the fact that a witness gives inconsistent accounts does not mean that that witness has lied. His Honour then gave the following direction, which is the subject of this aspect of ground 4 of the application:

Now, yesterday in submissions you heard Mr … for the defence say to you rhetorically ‘Why say something different in evidence unless you’re being untruthful or deceitful?’ And I wish to direct you further about not just that comment but what I have just told you in directions of law.
The experience of the law shows that people may not remember the details of a sexual offence, or may not describe the sexual offence in the same way each time, and trauma may affect different people differently, including by affecting how they recall events, and it is common for there to be differences in accounts of a sexual offence, and both - this is important - both truthful and untruthful accounts of a sexual offence may contain differences. It is up to you to decide whether or not any differences in the accounts of [AL] and [HK] are important in assessing their credibility and reliability, and whether you believe some or all or none of their evidence.

The judge then drew to the jury’s attention a number of the matters, relied on by defence counsel, as inconsistencies in the evidence of the two complainants.

The direction, set out in the passage above, conforms with a direction that a trial judge is now required to give to the jury, in a criminal proceeding relating to a charge of sexual offence, pursuant to s 54D of the Jury Directions Act 2015. However, that provision was inserted into that Act by the Jury Directions & Other Acts Amendment Act 2017, which commenced on 1 October 2017, seven months after the trial in this proceeding. At the time of the trial, there was no basis, at law, for the direction so given by the judge to the jury.

In submissions before us, counsel for the respondent suggested, somewhat faintly, that the direction might have been justified at common law under the principles described by this Court in R v Miletic.[66] It would, to say the least, be extraordinarily exceptional for a judge to give a ‘Miletic’ direction to a jury in support of a prosecution case. In the experience of this Court, that has never been done in this State. In any event, the principles, stated in Miletic, could not provide an appropriate justification for the judge having given such a direction to the jury.
[66][1997] 1 VR 593 (‘Miletic’).

Accordingly, it was erroneous for the judge to give the direction to the jury in the terms that he did, namely, as a direction of law, which the jury was required to adhere to. The detrimental effect, of the direction, was, to a limited extent, palliated, by the judge attaching it to the more general directions that he gave to the jury about the use which it might make of previous inconsistent statements by witnesses. Further, the direction did encapsulate what would ordinarily be the understanding of a lay jury. It could be expected that a jury would understand that a complainant, describing a sexual assault that occurred many years previously, might not remember relevant details relating to the assault, and might, on different occasions, give differing accounts of the incident constituting the assault. Nevertheless, it was wrong for the judge to elevate that consideration to a direction of law. By doing so, the judge, erroneously, gave a direction that had the potential to impact, unfairly, on matters raised by the defence in relation to inconsistencies by both complainants in the evidence that they had given to the jury.

It should be added, in fairness to the judge, that neither the prosecutor nor defence counsel took exception to the direction so given by the judge to the jury, and did not ask him to correct it. The failure, particularly of the prosecutor, to do so, is troubling. In that context, and in the context of other matters we have discussed relating to the conduct of the trial, it is important to emphasise that if a judge gives a direction to a jury which is incorrect or inappropriate, it is the duty of the prosecutor, as a minister of justice, to draw that matter to the attention of the judge, in order to ensure that the directions given to the jury are correct.[67] In that context, it is relevant to bear in mind the iconic statement of principle by Young CJ in R v Bazley:

… the long tradition of prosecutors is that they should perform their task as ministers of justice rather than as advocates seeking a particular result. It is, of course, clearly their task to present the Crown case fairly and fearlessly but to present it in a detached way and not to appear to urge a conviction. Moreover, experience suggests that the fairer the prosecutor the more devastating so far as the defence is concerned. Juries have been known before now to react against overzealous prosecutors.[68]

[67]See R v Caine (1990) 48 A Crim R 464, 475.

[68]R v Bazley (1986) 21 A Crim R 19, 29.

In summary, then, we are satisfied that a number of the matters, identified by the applicant under ground 4, did constitute errors in the conduct of the trial of the applicant. In addition, we have concluded, under ground 3, that the judge erred in granting the prosecutor leave to cross-examine Audrey Meyer after defence counsel had completed cross-examination of her. The critical question, under ground 4, is whether the combination or aggregation of those errors were such as to constitute a substantial miscarriage of justice for the purposes of s 276(1)(b) of the Criminal Procedure Act.[69]
[69]Kotzmann [1999] 2 VR 123, 157 [114] (Batt JA).

As already discussed, in accordance with the principles expanded in Baini, that question involves a consideration of whether, in the context of this case, the Court can be satisfied that the combined effect of the errors and irregularities did not make a difference to the outcome of the trial of the applicant, and also whether the aggregation of those errors constituted a serious departure from the prescribed processes for trial of the applicant.

In light of the matters that we have already discussed, the resolution of those questions is by no means straightforward. In particular, in determining whether the combined effect of the errors did not make a difference to the verdicts of the jury, it is necessary to bear in mind the limitations of this Court, in not having had the advantage of hearing and observing the witnesses, and in being detached from the atmosphere of the trial.

Bearing those limitations in mind, having reviewed and analysed the evidence at the trial, it can be fairly concluded that the prosecution case, on the charges on which the applicant was convicted, was strong. In particular, the prosecution case, in respect of charges 21 to 27 (in which HK was the complainant) was coherent and quite convincing. The transcript does not reveal that any substantial damage was occasioned to the evidence, or credibility, of HK in cross-examination. She was able to explain why she had not complained of the indecent assaults that the applicant had committed against her, and why she waited until after her sister, AL, had regained her health, to approach the police about them. Nevertheless, material issues were raised concerning the credibility and reliability of HK as a witness, particularly relating to her lack of memory of the incidents, described by her in her evidence, for more than three decades, and the delay by her in making any complaint to the police. While, as we have stated, HK’s answers to questions, relating to those matters, appear to be quite coherent from the transcript, any assessment of her credibility and reliability by this Court must, necessarily, be limited.

There were some genuine issues relating to the credibility of AL. Nevertheless, the prosecution case, in respect of the charges involving her, and on which the applicant was convicted, was quite strong. Her evidence was supported by the complaint evidence, and, in respect of the occurrence of the alleged rape in 1990, by her first husband. Most importantly, her evidence was quite powerfully supported by the contents of the pretext call.

On the other hand, notwithstanding the strength of the prosecution case, it could not be concluded that the case against the applicant was so overwhelming that, even if the errors in the trial had not occurred, the applicant would have been convicted. As we have mentioned, and as is ordinarily the position in cases of this kind, there were material issues that were explored in cross-examination relating to the reliability and credibility of both complainants. The applicant’s case did gain some support from the evidence of his wife. The applicant himself gave evidence denying the occurrence of the incidents in respect of which he was charged. As noted, his explanations, of the contents of the pretext call, were somewhat contrived, and challenged credulity. Nevertheless, having reviewed the evidence as a whole, it could not be maintained that, notwithstanding the errors that occurred in the conduct of the trial, the applicant was bound to be convicted of the charges on which the jury found him guilty.

The question, then, is whether it could be concluded this Court that the errors in the trial did not make a difference to the outcome of the trial. In order to consider that question, it is necessary to return, briefly, to the conclusions that we have already reached concerning those errors.

As we have already found under ground 3, the error, in granting the prosecutor leave to cross-examine Audrey Meyer after defence counsel had cross-examined her, did not affect the content of the cross-examination by the prosecutor. However, it did involve an unfair forensic disadvantage to the defence, as the matters raised by the prosecutor would have had a more substantial effect as a result of the timing of his cross-examination of her, than if the prosecutor had been granted leave to cross-examine Audrey Meyer after the conclusion of her evidence in chief.

Audrey Meyer was an important defence witness in respect of a number of matters, including, first, when she first met the B family, secondly, concerning her observations of the ‘kiss and hug’ incident, and, thirdly, concerning the revelation to her by the applicant of his affair with AL in 1990. As we have noted, it is unlikely that Audrey Meyer’s evidence would have been accepted, in relation to when she met the B family, because it was contrary to a significant body of evidence called by the prosecution. In addition, we expect that little damage was occasioned to Audrey Meyer’s evidence concerning the ‘kiss and hug’ incident, since she did describe, in her statement to the police, an incident in which she observed the applicant and AL hug each other.

The principal effect, of the cross-examination of Audrey Meyer, concerned the question of when the applicant revealed to her the affair that he alleged that he had had with AL in 1990. That matter was important to the defence, in that, if the jury accepted that the affair might have taken place in 1990, there was at least some foundation for the applicant’s claim, in his evidence, that parts of the pretext call related to that matter. As already noted, his explanation, in his evidence, to that effect, strained credulity. Nevertheless, the damage occasioned to Audrey Meyer’s evidence, about that matter, might have adversely affected his case on that point. As discussed, the same damage would have been occasioned to the defence case, if the prosecutor had sought, and obtained, leave to cross-examine Audrey Meyer at the conclusion of her evidence in chief. However, as already discussed, the context and timing of the cross-examination of Audrey Meyer, by the prosecutor in re-examination, had the potential to add materially to the damage inflicted on the defence case arising from that cross-examination.

Thus, the error, identified in ground 3, was not of itself of sufficient moment to give rise to a substantial miscarriage of justice in the trial. However, it did have an unfair effect on the defence case which should not have occurred. In that way, it is a relevant factor to take into account in determining whether, as a consequence of the aggregation of errors complained of, there was a substantial miscarriage of justice in the trial.

We turn, then, to the various incidents that were considered under ground 4. We have upheld the matters raised by the applicant in respect of the first, second, fourth and eighth incidents, and we have also upheld the complaints concerning a number of the matters raised under the fifth incident.

The first incident concerned the reaction by the applicant to the pretext call made to him by AL. The thrust of the impermissible questions, asked of the applicant by the prosecutor, was to infer that he had a ‘consciousness of guilt’ concerning the content of the matters discussed in the telephone conversation. While that matter impacted particularly on the defence by the applicant of the charges in which AL was the complainant, it also had the potential to adversely affect the credibility of the defence case as a whole.

Similarly, the second incident, which involved impermissible cross-examination under the principles stated in Palmer, again involved a material unfairness to the case of the applicant. While it directly impacted on his defence of the charges involving AL, the impermissible cross-examination by the prosecutor had the potential to obscure the onus of proof, generally, by suggesting that, in some way, it was for the defence to explain why the two complainants might have invented their evidence against him. The principles, discussed in Palmer, and in subsequent cases, have been borne from the longstanding understanding of the courts that, in the atmosphere of a criminal trial, the proscribed questioning as to the motive of a witness to tell an untruth, has a dangerous potential to have an unfair adverse effect on the defence in a criminal trial.

As already discussed, the remark made by the judge, in the presence of the jury, that was the subject of the fourth incident, was quite inappropriate. It was made in response to cross-examination by defence counsel of AL as to why she continued to maintain a relationship with the applicant, notwithstanding the incidents in which she claimed that she was abused by him. The comment, made at that stage, was calculated to have an adverse effect on the line of cross-examination that was being legitimately and appropriately pursued by defence counsel. In addition, and even more significantly, as earlier discussed, the content of the interjection had a significant prejudicial potential, arising from the reference by the judge to children returning to the sacristy. There was, we consider, a material risk that the comment made by the judge might have had a lingering effect on the manner in which the jury considered the charges against the applicant.

The majority of the matters, which we have upheld under the rubric ‘fifth incident’, were, again, directed to the charges involving AL. In particular, most of the interruptions by the judge, in cross-examination of a witness, occurred in the course of the evidence of AL. There was one interruption during the cross-examination of HK, but, as we have already noted, it constituted a, perhaps understandable, expression of frustration by the judge in relation to a trivial and peripheral inconsistency being pressed by defence counsel at that stage.

As discussed, the direction that the judge gave to the jury, as to the use of screens during the evidence of the complainants, did not conform with the requirements of s 361 of the Criminal Procedure Act. The direction, given by the judge, did explain the reason why the screens were in place during the complainant’s evidence, and to that extent partially, but not sufficiently addressed the potential unfairness to the applicant that is intended to be offset by a direction under s 361.

Finally, the impermissible direction given by the judge to the jury, which we have considered under the rubric ‘the eighth incident’, was, we apprehend, of some effect in the trial. As already discussed, the error lay in the judge investing, with the authority of a judicial direction, a matter which, it might be expected, the jury would already have understood. To that extent, the direction, erroneously, had the potential to detract from the effect of the defence arguments that were based on the inconsistencies between the accounts given by the complainants in their evidence, with the accounts given by them to the police.

That review, of the effect of the errors, reveals that most of them were directed to, and affected, the prosecution case against the applicant on the charges in respect of which AL was the complainant. The prosecution did not serve a notice of tendency evidence, and it was not contended, at trial, that the evidence, relating to one complainant, was cross-admissible in respect of the charges involving the other complainant, as tendency evidence pursuant to s 97 of the Evidence Act. The jury was given a correct direction that it must consider each charge separately in light of the evidence that applied to that charge.

Nevertheless, in the atmosphere and context of the trial, it is conceivable, if not probable, that the effect of the errors, concerning the charges involving AL, might have had adverse consequences in respect of the jury’s appreciation of the evidence relating to the charges against HK. In the dynamic context of a criminal trial, the damage to a defence case, in respect of one charge, may not be hermetically quarantined from any adverse effect in respect of a jury’s consideration of another charge. In particular, in the present case, the unfair prejudice to the case of the applicant, in respect of the charges concerning AL, necessarily affected his credibility, not only in relation to those charges, but generally. Further, although the jury was directed to consider each of the charges separately, the incidents, that formed the subject of each of the charges, were alleged to have occurred in the same context in which the two complainants regularly visited the home of the applicant.

Taking all those matters into account, we are not satisfied that the combined effect of the errors and irregularities in the trial, that we have discussed, did not make a difference to the outcome of the jury’s consideration of the charges on which the applicant was convicted by the jury. Further, a significant number of them impacted materially on the fairness of the trial. In our view, the cumulative effect of those errors, taken in combination, was to deprive the applicant of a fair trial of the charges against him. Accordingly, we consider that the aggregated and combined effect of those errors did result in a substantial miscarriage of justice in the trial. It follows that the conviction of the applicant, on charges 4, 5, 6, 10, 18, 20, and 21 to 27 (inclusive), should be set aside. As we have concluded, under ground 2, that it was open to the jury to convict the applicant on charges 4, 5, 6, 10, 18 and 20, and as no such ground was relied on in relation to charges 21 to 27, it follows that a new trial should be ordered in respect of those charges.

Conclusion

For the foregoing reasons, the applicant should be given leave to appeal on grounds 2, 3 and 4. The appeal should be upheld, under ground 4, in respect of the applicant’s conviction on charges 4, 5, 6, 10, 18, 20 and 21 to 27, and a new trial ordered in respect of those charges.

[2018] VSCA 140

31 May 2018