Poole (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0040

DARRYL POOLE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]The applicant’s name has been anonymised to protect the identities of the complainants.

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JUDGES:	EMERTON P, KENNEDY and ORR JJA
WHERE HELD:	Bendigo
DATE OF HEARING:	15 May 2025
DATE OF JUDGMENT:	5 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 127
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v [Poole] (County Court of Victoria, Judge Quin, 9 February 2024)

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CRIMINAL LAW – Appeal – Conviction – Three charges of rape, as well as charges of violence, including charge of threat to kill complainant – Tendency evidence adduced of applicant’s tendency to engage in violence against females – Evidence of uncharged act of threat made to complainant concerning her children led in relation to threat to kill charge – Evidence inadmissible and not subject of tendency notice – Whether substantial miscarriage of justice – Where mixed verdicts – Where jury acquitted applicant of charge of threat to kill – Where extensive evidence of applicant’s poor character included the making of a threat in front of complainant’s children – No substantial miscarriage of justice – Appeal dismissed.

Criminal Procedure Act 2009, s 276(1)(b); Evidence Act 2008, ss 97, 137.

Karam v The King [2023] VSCA 318, applied.

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms D Piekusis KC with Ms E Allan
Solicitors
Applicant:	Docherty Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KENNEDY JA
ORR JA:

The applicant was charged on indictment with 10 offences. On 25 September 2023 the applicant was convicted by jury verdict of seven offences, including three offences of rape. The jury also found the applicant not guilty in respect of two assaults (charges 6 and 7) and of making a threat to kill (charge 10).
On 9 February 2024 the applicant was relevantly sentenced to a total effective sentence of 14 years and 3 months’ imprisonment, with a non-parole period of 9 years and 6 months.
The applicant seeks leave to appeal against conviction on the following proposed ground:
The trial judge erred by allowing the introduction of evidence regarding uncharged acts that resulted in prejudice to the applicant.[2]
[2]The applicant originally relied on a second proposed ground to the effect that the judge erred by refusing an application to discharge the jury. However, this ground was abandoned at the hearing of this application in light of relevant authorities that support the proposition that, following conviction, an appeal is not brought against a failure to discharge the jury, but against the conviction: see Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason J agreeing at 636, Jacobs J agreeing at 636, Aickin J agreeing at 637); Qadir (a pseudonym) v The King [2023] VSCA 155, [24] (Priest, Walker and Kaye JJA).
For the following reasons, we have determined that, although the application for leave to appeal should be granted, the appeal should be dismissed.

Summary of offending

The offending related to two complainants: Liza Field and Faye Hobson.[3]
[3]The complainants’ names have been anonymised to protect their identities.
Ms Field was previously in a relationship with the applicant and they have two children together. At the time of the offending, Ms Field was aged 38 and had 12 children under her care, aged between 3 and 23 years. Ms Hobson had known the applicant for about three years at the time of the relevant offending and was aged about 22.
The first four charges relate to the offending in respect of Ms Field which occurred between 19 August and 20 August 2019 (the ‘August 2019 incident’). This offending occurred after the applicant had phoned her, threatening to kill himself. The applicant was living in Echuca and Ms Field went to the applicant’s unit to check on him following the phone call. While Ms Field was there, the applicant abused her. He threatened to ‘hang her up’ with an extension cord that he was holding like a noose (charge 1 — threat to inflict serious injury).[4] He also threatened to smash her head in with a set of weights. He demanded that she take off her clothes and threatened her with violence if she did not. He continued to abuse her, accusing her of sleeping with another man.
[4]Contrary to s 21 of the Crimes Act 1958.
Ms Field took off her clothes as directed by the applicant, and the applicant penetrated her vagina with two of his fingers (charge 2 — rape).[5] He then proceeded to have penile/vaginal sex with her for a number of hours (charge 3 — rape).[6] The applicant’s daughter was in a room right next to his bedroom where the incident occurred. At one point his daughter was coughing and the applicant took Ms Field with him to give her a drink. At no point did Ms Field agree to have sexual intercourse. The applicant continued to threaten her with violence and spat on her face, licking his spittle off her face. He penetrated her until he ejaculated. He did not leave her alone at the unit, and he would not let her leave despite her request that she be allowed to go home because their child (who was around one year old at the time) would be crying (charge 4 — false imprisonment).[7] After the applicant ejaculated, he abruptly returned Ms Field’s car keys and told her to leave. A number of weeks later she discovered that she was pregnant with the applicant’s (second) child.
[5]Contrary to s 38(1) of the Crimes Act 1958.
[6]Contrary to s 38(1) of the Crimes Act 1958.
[7]Contrary to common law.
Turning to Ms Hobson, she knew the applicant, but did not really associate with him until he had offered her a lift in November 2019. Sometime in January 2020, Ms Hobson was staying overnight at the applicant’s unit in Echuca. On that night, the applicant asked Ms Hobson to go to the ATM and get some money for him using another person’s card. Ms Hobson was unsuccessful because there was not enough money in the relevant account. On her way back to the applicant’s unit she visited a friend. The applicant contacted Ms Hobson and told her to stay at the friend’s house. The applicant then turned up at the friend’s house. Soon after he arrived, the applicant punched Ms Hobson to the side of her face, then hit her again with a closed fist to her cheek. That assault happened unexpectedly and suddenly (charge 5 — common assault).[8]
[8]Contrary to common law.
On another occasion, most likely in January 2020, Ms Hobson was at the applicant’s unit. Ms Hobson went and got something from her car and came back inside. As she came into the lounge room the applicant had his double-barrel shotgun out, which he pointed directly at Ms Hobson’s face before pulling the trigger. Ms Hobson heard it ‘click,’ but it did not ‘fire’. Ms Hobson froze and the applicant taunted her, saying they were friends and that’s why Ms Hobson did not flinch. The applicant laughed when Ms Hobson challenged him because she did not know that the gun was not loaded (charge 8 — common assault).[9]
[9]Contrary to common law.
On Friday 28 February 2020, between midnight and 2:00 am, the applicant took Ms Hobson for a drive towards Kanyapella. The applicant stopped on a remote dirt track. He retrieved a double-barrel shotgun wrapped in a sheet which had been hidden underneath foliage on the side of the road. He then loaded the shotgun in front of Ms Hobson. The applicant asked Ms Hobson if she thought anyone would hear if shots were fired, or if someone would be found if they were killed. The applicant then commenced massaging Ms Hobson. Ms Hobson told the applicant that she did not want a massage.
The applicant directed Ms Hobson to go to the back seat of the car. The applicant had his hand on the shotgun which was at that point sitting across the centre console of the car. The applicant then told Ms Hobson to take her jumper off. When Ms Hobson did not comply the applicant immediately took off her jumper and bra and she was too scared to physically resist him. After removing all her clothing, the applicant made Ms Hobson sit on his lap, facing in his direction, while the applicant sat in the middle of the rear seat still clothed.
The applicant fondled Ms Hobson’s body, including her breasts, with his hands and asked her if she ‘liked his gun’. Ms Hobson did not reply. The applicant then removed his clothing and laid Ms Hobson down on the back seat of the vehicle. The applicant penetrated Ms Hobson’s vagina with his erect penis and had sexual intercourse with her for around five minutes. The applicant did not wear a condom and ceased after he had ejaculated on Ms Hobson’s leg. Ms Hobson did not physically resist the applicant as she was terrified (charge 9 — rape).[10]
[10]Contrary to s 38(1) of the Crimes Act 1958.
After the applicant and Ms Hobson left and headed back towards town, the applicant stopped and deposited the firearm under a rubbish heap on the side of the road.

Course of the trial

At trial the prosecution called the two complainants, as well as the informant, Detective Daniel Vear. The prosecution also called three witnesses to whom complaint was said to have been made: Jarrod Mulcahy, Bryce Roney and Detective Fiona Whitty.
The applicant did not give evidence and had declined to be interviewed.
The defence was generally that the events did not occur. However, in the case of charge 9 (the rape of Ms Hobson), there was no dispute that the sexual penetration took place; rather, the defence was that the prosecution had not proved that there was a lack of consent, or that there was no reasonable belief in consent.
It is unnecessary to detail the evidence of each witness, given the confined scope of the proposed ground. However, the evidence of Ms Field will be detailed further, below.
The evidence of each complainant was also cross-admissible as tendency evidence pursuant to s 97 of the Evidence Act 2008 (‘Evidence Act’), consistent with an earlier determination of this Court.[11]
[11]Poole (a pseudonym) v The King [2022] VSCA 287R (‘Poole’). The prosecutor had originally sought to rely on tendency evidence in relation to offences allegedly committed against three female complainants. However, after the Director had advised that she would not persist with the joinder of the charges concerning the third complainant, the Court focused on whether the tendency evidence was cross-admissible in respect of Ms Field and Ms Hobson: at [8] (Niall and T Forrest JJA).
The tendency alleged was the subject of a tendency notice originally dated 24 March 2023 (and later amended by way of a further amended notice dated 6 September 2023). The tendency specified was a tendency of the applicant to act in a particular way, namely:
(a)a tendency to be spontaneously violent towards females he knows; and
(b)a tendency of using weapons such as firearms, baseball bats, axes or dumbbells to engage in violence towards females he knows.
The evidence relied upon to establish the tendency was set out in detail in Table A of each notice.
Niall and T Forrest JJA found that the tendency evidence had significant probative value. In respect of prejudicial effect they stated:
We consider that the prejudicial effect is largely confined to the jury reasoning from a propensity standpoint, rather than through legitimate tendency reasoning. Should the jury reason (for example) that ‘we are satisfied that the applicant is a person of poor character who, as a consequence, is more likely to have committed some or all of these offences’ such reasoning would be impermissible and would cause the trial to miscarry. The potential for such reasoning can be minimised by careful directions on the process of legitimate tendency reasoning and by strong directions on the need to avoid impermissible discreditable conduct reasoning.[12]
[12]Ibid [38].
In the result, the Court found that the probative value of the tendency evidence substantially outweighed any prejudicial effect.[13]
[13]Ibid [39].
The prosecutor was therefore permitted to adduce evidence in support of the charges, as well as evidence said to constitute certain specified ‘uncharged’ acts in order to support the alleged tendencies. This included evidence adduced in respect of charges of which the applicant was ultimately acquitted, namely charges 6, 7 and 10. In the particulars and statement of offence contained in the indictment:
•charge 6 alleged that the applicant assaulted Ms Hobson by whipping her by use of a phone charger cord in January 2020;[14]
•charge 7 alleged that the applicant assaulted Ms Hobson by burning her foot with a gas lighter in January 2020;[15] and
•charge 10 alleged that between 1 February 2020 and 9 March 2020 the applicant made a threat to kill Ms Field.[16]
[14]Contrary to common law.
[15]Contrary to common law.
[16]Contrary to s 20 of the Crimes Act 1958.
The substance of the evidence of the conduct comprising charge 10 that was also adduced to support the alleged tendencies was set out in Table A of the further amended tendency notice as follows:
The accused and Ms [FIELD] were communicating via Snapchat video call and during this communication the accused brandished what Ms [FIELD] observed was a shotgun. During the call the accused told Ms [FIELD] that he was going to shoot Ms [FIELD] and then he was going to shoot himself.
As will be seen below, the critical complaint in this application is that the evidence actually adduced from Ms Field in relation to charge 10 extended beyond the charged act of a threat to kill Ms Field, to an uncharged act of a threat to kill her children.
In order to assess this submission, it is necessary to turn to Ms Field’s evidence in more detail.

Evidence of Ms Field

In examination-in-chief Ms Field first gave evidence of the August 2019 incident (the subject of charges 1 to 4), which we have already set out, and which occurred when she had ended her relationship with the applicant.
Ms Field’s evidence was that she kept seeing the applicant subsequent to the August 2019 incident because she felt she had ‘no other option’. She said that he threatened her with a gun multiple times. When asked whether she remained in the relationship, she said it was not a relationship and that she was ‘scared’.
Ms Field’s evidence was that a month or two after the August 2019 incident, she went to see the applicant at his house because they were meant to be having a talk. She said that he pushed a coffee table with his foot and that he had a double-barrel shotgun laying underneath it.
At that point, the applicant’s counsel made an objection to the evidence on the basis that it could only be relevant to the threat to kill charge on some sort of ‘tendency, coincidence or propensity’ basis. The prosecutor submitted that the evidence was relevant to charge 10, as it put in context that Ms Field knew that the applicant had a gun at the time of the subsequent Snapchat video call.
In the result, the judge accepted that the evidence was relevant to Ms Field’s state of mind at the time of the threat said to constitute charge 10. At the hearing before us, the applicant’s counsel abandoned his previous challenge to the receipt of this evidence.[17]
[17]In oral submissions, counsel clarified that he was only challenging the receipt of the impugned evidence, as is described at [33] below.
The evidence of Ms Field then resumed and she was asked questions about a screenshot she had taken during the Snapchat video call the subject of charge 10. The following exchanges then occurred which contain the evidence alleged to be inadmissible that is the subject of this application (the evidence shown in bold, being ‘the impugned evidence’):
HER HONOUR: Well, what did you see in the picture?
MS [FIELD]: Well, in the video call he was making to me, he had the double-barrel shotgun.
PROSECUTOR: When you say, ‘He had the double-barrel shotgun’, Mr [Poole]?
MS [FIELD]: Yes.
PROSECUTOR: And what was he doing with the shotgun during that video call?
MS [FIELD]: First, he was threatening to shoot me and my children. And then he put – he ended up putting the gun under his chin and was saying he was going to kill himself. And then he pretended to me that he pulled the trigger, and it didn’t go off.
Ms Field was then shown a copy of the screenshot she had taken during the Snapchat video call and asked to point to where she said that the gun appeared. In proceeding to draw a circle she said that the screenshot was ‘not very good’.
A further exchange then followed:
PROSECUTOR: Ms [Field], when Mr [Poole] said he was going to shoot you and shoot your family, did you take him seriously?
MS [FIELD]: Yes.
PROSECUTOR: And how did you feel on hearing those words?
MS [FIELD]: I didn’t know what to do. He – am I allowed to keep talking on that? Can I elaborate on that?
The prosecutor was then asked to make her question a bit more limited, whereupon she asked Ms Field to describe the gun, but then returned to the threats as follows:
PROSECUTOR: When Mr [Poole] told you that he was going to shoot you and shoot your children and tried to shoot himself or clicked, what did you say to him? How did you respond?
MS [FIELD]: When he – when he put the gun under his own chin and told me he was going to shoot himself, I just thinking, ‘I hope you do it’.
The applicant thereupon made an application to discharge the jury on the basis of the evidence which had been given about the gun under the coffee table, but ‘more strongly’, on the basis of the impugned evidence. He submitted that the impugned evidence created a high degree of prejudice and the risk of the jury engaging in propensity reasoning, that is, reasoning that if the applicant was prepared to make threats of this kind, then he was more likely to have committed the offences charged. The applicant submitted that it would be very difficult to craft directions that would deal with the fact that the jury had heard that the applicant was the kind of person who would threaten to kill two of his own children and 10 of someone else’s, and submitted that it created the risk of propensity reasoning. Further, that it was not the subject of the (further amended) tendency notice.
The prosecutor downplayed the significance of the evidence extending the threat to Ms Field’s children, suggesting there was no ‘difference’ and opposed the application to discharge. She also indicated that she would not raise the matter in closing address.
The judge refused the application to discharge because she was not satisfied that there was a high degree of need, subject to reviewing the transcript. She confirmed this decision after considering the transcript.
However, the applicant conceded that the judge was never asked for, and did not give, a direction that the jury disregard the impugned evidence (although she was subsequently asked to give an ‘anti-propensity misconduct type direction’ in relation to it). Moreover, as will be seen below, defence counsel then cross-examined Ms Field about her evidence that the applicant had threatened her children.
Under cross-examination, a serious challenge was made to Ms Field’s credit, as well as her ongoing ‘on and off’ relationship with the applicant, including after the August 2019 incident. She was also cross-examined about the incident the subject of charge 10.
In terms of credit, it was suggested that Ms Field had lied about the August 2019 incident. It was also suggested that she was engaging in recent invention by not including matters in her statements to police which she had now given evidence about. These details included that the applicant had threatened to kill the children as well as her.[18] Ms Field’s response was that the applicant had threatened to shoot her children ‘numerous times’.
[18]The informant was also asked to confirm that Ms Field had never said to him that the applicant threatened to kill or hurt the children.

Ms Field was also asked many questions about the nature of her relationship with the applicant. In particular, she was questioned about why she continued to see the applicant romantically after an earlier incident in 2017;[19] about her relationship with him shortly prior to the August 2019 incident; and about her relationship with him after that incident.
[19]This was apparently a reference to another uncharged act of assault, the subject of the amended tendency notice and evidence of the informant.
In respect of the period of time prior to the August 2019 incident, Ms Field’s evidence was that she stopped seeing the applicant in early August after an incident when their son was hospitalised for bronchiolitis, at a time when the applicant was playing football. She was cross-examined at some length about this earlier incident, including the reason she stopped seeing the applicant. During the course of this evidence she said that when the applicant did turn up at the hospital, he was ‘drug-affected’ which ‘no-one wants around their kids’. She also described him as ‘unpredictable’.
In respect of the period of time after the August 2019 incident, defence counsel read an extract from an earlier statement where Ms Field had said: ‘I also had consensual sex with [Darryl] after this incident’. Her evidence was that this occurred weeks after the August 2019 incident, but she disagreed that she had rekindled the relationship. In response to a question as to whether she continued to see the applicant ‘face to face’ she answered: ‘After he kept threatening me’. She was also asked about spending time with him at the river with the children during this time.
With respect to the video call the subject of charge 10, the quality of the image in the screenshot was challenged and Ms Field was asked whether it was possible that the applicant never in fact had a gun during that call. Defence counsel also suggested that the only person the applicant threatened to harm during the call was himself; that he never threatened Ms Field and that he never threatened to kill her ‘or [her] children’. Ms Field responded that this was exactly what the applicant was threatening to do.
In re-examining Ms Field the prosecutor asked Ms Field about whether she had become romantically involved with the applicant after breaking up with him in early August 2019 (at the time her son was hospitalised). Ms Field responded that she started talking to him again ‘to make [her] life easy’. The following exchange then occurred:
PROSECUTOR: Are you able to tell us why you would talk to Mr [Poole] to make your life easy?
MS [FIELD]: Because he was threatening me. He came to my house. He came to my house, bashing a gun on my window, in front of my children.
PROSECUTOR: Do you know when that happened?
MS [FIELD]: I can’t even – so much stuff happened. I can’t even say it all. But there was a lot of stuff continuously happening. I couldn’t even go for a drive in my car; to clean my car at the car wash.
The applicant thereupon revived his application to discharge the jury on the basis of ‘compounding difficulties’ in relation to the evidence concerning threats made towards children with guns.
The prosecutor sought to justify her re-examination on a number of bases. She submitted that there was a ‘fairly moot difference’ between threats made to Ms Field and threats to the children. She also sought to adduce a video of the event the subject of the re-examination.
The judge refused to allow the video to be adduced, as well as Ms Field’s description of what was going on at the time of the video, on the basis that it was too prejudicial. She also refused to discharge the jury, stating that evidence had already been adduced regarding threats made to the children so there was no high degree of need.
It is unclear precisely what was meant by the judge’s ruling that Ms Field’s description of what was going on at the time of the video could not be adduced, given that Ms Field had already given such evidence. However, because the evidence adduced was permitted to stand, it appears that the judge’s ruling was directed to any further narrative evidence, rather than the evidence already adduced.
In this Court, the applicant originally sought to challenge the receipt of the evidence identified above and led in re-examination. However, he ultimately accepted that it was properly admissible as context evidence, and withdrew his earlier challenge at the hearing before us. Moreover, he submitted that the impugned evidence was ‘materially different’ to the evidence that the applicant bashed a gun on the window of Ms Field’s house in front of her children, the difference being that in the former case there was an intention expressed directly to harm the children, while in the latter case the children may have been present, but the applicant may have been unaware of their presence.
Senior counsel for the respondent submitted that the evidence was admissible in circumstances where Ms Field had been cross-examined about why she kept returning to the relationship with the applicant. She also submitted that the evidence was less prejudicial than the impugned evidence given there was no direct threat made to the children.

Closing submissions

Consistent with her position before the judge at the time the impugned evidence was adduced, the prosecutor did not rely on that evidence in her closing address.
In challenging the credit of Ms Field, however, the applicant’s counsel highlighted that Ms Field had not included the detail about the applicant threatening her children in her statements to police.

Judge’s charge

In the course of charging the jury the judge told them to ignore feelings of sympathy or prejudice, a statement she repeated when directing them about tendency evidence. She also directed them to consider each charge separately.
The judge further directed the jury that they were permitted to use any prior inconsistent statements of Ms Field, including her prior statements in relation to the threats made by the applicant, when assessing her credibility and reliability.
The judge also gave the following direction:
The prosecution led evidence that the accused was involved with drugs. There was also some evidence that he threatened his children. Now that evidence is not directly related to any of the offences charged. The prosecution says this evidence is relevant because it shows some of the surrounding circumstances relating to the alleged incidents. You must keep the evidence in perspective. It is only one part of the prosecution’s case and as I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused. The evidence has been led for the limited purpose of showing circumstances that existed or surrounding the event alleged. You must not use the evidence for any other purpose.

Submissions

Applicant[20]

[20]In light of counsel’s concession that he was only challenging the receipt of the impugned evidence, we have endeavoured to summarise the submissions which focus on that evidence.

In written submissions, the applicant highlighted the remarks made by this Court in dealing with the tendency notice that if the jury were to reason from an ‘impermissible’ propensity standpoint, this would cause the trial to miscarry.[21] The applicant submitted that none of the acts the subject of the impugned evidence were charged on the indictment and, beyond explaining a delay in complaint, the evidence was not probative of any fact in issue in the trial.
[21]Poole [2022] VSCA 287R, [38].
The applicant submitted that allegations regarding threats to shoot children with a firearm are likely to arouse a strong emotional reaction. Given the apparent age and number of the children included in the threat, the applicant submitted that this evidence was likely to evoke a sense of horror and a desire to punish the applicant without a logical assessment of the evidence related to the charged acts. Despite concerns expressed by the judge, the prosecutor adopted the evidence given by Ms Field to ensure that the allegations were repeated a number of times in the presence of the jury.
The applicant submitted that by allowing the prosecutor to elicit evidence of this type, despite objection, prejudice was occasioned to the applicant which could not be cured by any subsequent directions. Such evidence, having no probative value to the facts in issue in the trial, would otherwise have been excluded by s 137 of the Evidence Act had there been advance notice that it was to be adduced.
The applicant submitted that, while the evidence of the shotgun and the associated threats to the children did not involve a risk that was in itself ‘peculiarly’ strong, the incorporation of 12 potential child victims that had not been specified on the indictment was likely to provoke a strong emotional response in the jury.[22]
[22]This submission appeared to relate to the subsequently abandoned challenge to the evidence adduced in re-examination, but has been included for completeness.
The applicant submitted that, having allowed evidence likely to provoke shock in the minds of the jury, no direction could have returned them to their appropriate task.
As we have said, in oral submissions, counsel clarified that the applicant only challenged the receipt of the impugned evidence, adduced in examination-in-chief.[23] More particularly, the challenge did not extend to the evidence adduced in re-examination.
[23]See above n 16.
Counsel submitted that, as a result of an error or irregularity in, or in relation to, the trial there had been a substantial miscarriage of justice for the purposes of s 276(1)(b) of the Criminal Procedure Act 2009 (‘CPA’). He relied on the second category of substantial miscarriage of justice identified in Baini v The Queen (‘Baini’),[24] namely, that there was an error or irregularity in relation to the trial and this Court could not be satisfied that the error or irregularity did not make a difference to the outcome of the trial.
[24](2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
Counsel’s submission was that the impugned evidence was inadmissible because it was irrelevant to the charged acts. He submitted that it was not context evidence, as it was not necessary to explain any evidence concerning charge 10. He also submitted that to the extent it was capable of being understood as tendency evidence, it did not form part of any tendency notice and would not have satisfied the tests contained in s 97 of the Evidence Act. He submitted that the evidence was not probative, let alone significantly probative, and that the danger of unfair prejudice would considerably outweigh any probative value.
Counsel also submitted that even if the impugned evidence was otherwise admissible it should have been excluded under s 137 of the Evidence Act given its prejudicial effect. In terms of prejudice, he highlighted that the effect of the evidence was restated by the prosecutor, which enlarged the prejudice; that it was highly emotive; and that it was likely to distract the jury from their task.
In turning to whether there was a substantial miscarriage of justice, counsel submitted that the failure to request a direction that the jury ignore the evidence did not obviate the need for the applicant to have a fair trial. The direction ultimately given was also inadequate in suggesting that the evidence should be viewed as part of the surrounding circumstances — which compounded the problem. In response to the suggestion that defence counsel might have been taken to have made a forensic decision to utilise the evidence as part of the cross-examination, counsel submitted that no forensic decision could have dealt with it adequately.

Respondent

In written submissions the respondent submitted that, in the context of the applicant’s trial, the evidence adduced in examination-in-chief of the limited, generalised threat against the complainant’s unspecified children was not so unfairly prejudicial that any potential unfair prejudice arising from it could not be cured by judicial direction.
The directions provided by the trial judge were said to both firmly quarantine the impugned evidence from potential misuse, and also allow for the potentially forensically advantageous argument made on behalf of the applicant concerning Ms Field’s prior inconsistent statement about the nature of the threat made.
In all of the circumstances, given the limited nature of the impugned evidence and the trial judge’s careful directions, the respondent submitted that it was not reasonably arguable that a substantial miscarriage of justice had occurred.
In oral submissions, senior counsel for the Crown fairly accepted that the impugned evidence was inadmissible, but submitted that no substantial miscarriage of justice arose from its receipt.
Senior counsel also made a number of fair concessions including:
(a)that the restating of the threat by the prosecutor in her questions of Ms Field was ‘unfortunate’;
(b)that it would have been preferable for a direction to disregard the evidence to have been sought, and given, at the time the impugned evidence was adduced; and
(c)that (contrary to what the judge said in her charge) the prosecution had not actually said that the impugned evidence was relevant because it showed some of the surrounding circumstances relating to the alleged incidents. In fact, the prosecutor had not sought any particular direction about the impugned evidence.
However, counsel for the respondent maintained that there was no substantial miscarriage of justice when the trial was considered, overall.
Thus, counsel submitted that the mixed verdicts — including the acquittal in respect of charge 10 — suggested that the jury were able to separately consider the evidence in respect of each charge, as the judge had directed them. It also showed that the jury were not infected by the impugned evidence, or the directions related to it.
Counsel also highlighted that there was other highly prejudicial evidence about the character of the applicant, which included his behaviour around children; his use of a loaded firearm in respect of two of the charges concerning Ms Hobson; as well as evidence from Ms Hobson under cross-examination that when she was out with the applicant in the car she saw a sign which read ‘[Darryl]’s raping spot’. There was also tendency evidence the jury considered in light of all the other prejudicial material.
In relation to the judge’s direction, counsel submitted that some explanation was called for given the impugned evidence had come out and had been the subject of cross-examination. The evidence therefore needed to be dealt with somehow. Counsel also submitted that the end effect of the direction was to dissuade the jury from treating the impugned evidence as part of the charged act the subject of charge 10.

Analysis

Section 276(1)(b) of the CPA provides that this Court must allow the appeal against conviction if the applicant satisfies the Court that ‘as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.
In Karam v The King,[25] this Court identified the appropriate principles to be applied in considering the applicability of s 276, in light of the decisions of the High Court in Baini and Awad v The Queen,[26] by reference to a series of steps:
(a)determine whether the appellant has established an error in connection with the conviction under appeal;
(b)if so, determine whether that error is ‘fundamental’ or a ‘serious departure’ from proper trial processes, so as necessarily to have resulted in a substantial miscarriage of justice;
(c)if that has not been shown, determine whether the appellant has established that the error may have affected the result of the trial;
(d)if so, there will be a substantial miscarriage of justice unless the respondent establishes that the conviction was inevitable.[27]
[25][2023] VSCA 318 (‘Karam’).
[26](2022) 275 CLR 421; [2022] HCA 36.
[27]Karam [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA).
We proceed from the position — accepted by both parties — that the impugned evidence was inadmissible. It was not relevant to charge 10, nor was it properly context evidence. The prosecutor did not seek to admit it on any other basis (including as tendency evidence).
However, the wrongful admission of this particular piece of evidence was clearly not ‘fundamental’. Rather, the key issue which arises is whether there has been a substantial miscarriage of justice because the admission of the impugned evidence may have affected the result of the trial.
In examining this question it is important to bear in mind the potential dangers of the impugned evidence. There was a danger that it might provoke some adverse emotional response which could cause the jury to more readily convict the applicant based on feelings of prejudice against him. More particularly, it carried the risk that the jury might engage in the sort of propensity reasoning described by Niall and T Forrest JJA above,[28] ie that by reason of the applicant’s bad character he was more likely to have committed some, or all, of the offences.
[28]See above [22].
However, there was already a preponderance of evidence as to the applicant’s bad character. This included evidence about his conduct in respect of both complainants, which involved the use of guns and weapons, as well as his drug use. The evidence of Ms Field was that his conduct extended to making regular threats of violence. There was also evidence that the applicant had a tendency to use weapons to engage in violence and to be spontaneously violent to females.
Importantly, there was also extensive evidence before the jury about the applicant’s poor conduct in relation to his children. This included his actions during the course of the August 2019 incident when he allegedly raped Ms Field while his daughter was in the next room. It also extended to him restraining Ms Field from returning to care for his own very young son over the course of that night. Ms Field also described the applicant as being drug-affected around his children, as well as ‘unpredictable’.
Significantly, the jury also heard evidence about the incident described in re-examination when the applicant came to the family home and bashed a gun on the window in front of the children. As indicated already, this was accepted as properly admissible evidence. Contrary to the submissions of both counsel, we consider that the threat to children identified in this incident was more serious than the threat the subject of the impugned evidence. The evidence of Ms Field was that the threat was made ‘in front of’ her children, rather than being solely made to Ms Field. The threat was also made at the family home and was accompanied by the violent, frightening action of bashing a gun on the window. At the very least, it was evidence of a serious threat made in the presence of Ms Field’s children.
In the result, then, the jury heard extensive evidence of the applicant’s unpredictable, drug-affected, violent and threatening behaviour, which took place in a sadly dysfunctional environment. That evidence suggested that the applicant had an utter disregard for women, as well as his family. It is artificial to suggest that, in this context, evidence of one particular threat could have realistically made any material difference to the result of the trial.
The other telling feature of the trial was the mixed verdicts. This indicates that the jury did not simply reason that, because the applicant was the type of person who would threaten children, he was more likely to have committed the offences. Critically, even though the impugned evidence was adduced in relation to charge 10, and also concerned a threat to kill, it clearly had no influence on the jury’s reasoning in relation to that charge, on which they acquitted the applicant. It is therefore fanciful to suggest that it might have been used to convict the applicant of the other offences, which concerned very different offences of rape, as well as assaults of a different complainant. The acquittals on each of charges 6 and 7 also indicate that a careful approach was taken in respect of each of the individual charges concerning Ms Hobson.

Overall, then, the verdicts suggest that the jury considered each charge individually, as they were directed to do.
Finally, it may be accepted that no direction was given to ignore the impugned evidence. It may also be accepted that the ultimate direction given was in error because it treated the impugned evidence as context evidence, even though the prosecution had never sought to characterise it in this way.
Nevertheless, defence counsel did not ask the judge for a direction that the jury ignore the impugned evidence, either at the time it was given, or otherwise. Instead, counsel sought an advantage by using the evidence in cross-examination and closing address. The judge’s ultimate direction must therefore be seen in this light. In giving her direction, her Honour expressly told the jury that they were not to use the impugned evidence for any purpose other than as part of the surrounding circumstances. There is nothing to suggest that the judge’s direction has been utilised by the jury so as to wrongly treat the impugned evidence as part of the charged acts. To the contrary, the acquittal in respect of charge 10 suggests otherwise. It also indicates that the jury were able to disregard any adverse emotional reaction to the impugned evidence.
For all these reasons, we are not satisfied that the admission of the impugned evidence may have affected the result of the trial. We are therefore not satisfied that there was any substantial miscarriage of justice.

Conclusion

We will grant leave to appeal, but the appeal will be dismissed.
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[2025] VSCA 127

5 June 2025