Saab (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0021

IMRAN SAAB (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of the identification of a victim of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the respondent and his victim.

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JUDGES:	BEACH, WALKER and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2025
DATE OF JUDGMENT:	5 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 211
JUDGMENT APPEALED FROM:	[2024] VCC 1351 (Judge Hassan)

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CRIMINAL LAW – Appeal – Conviction – Rape (8 charges), common assault (1 charge) – Relationship evidence – Other misconduct evidence – Whether prosecutor’s address invited jury to engage in tendency reasoning – Whether judge’s charge invited jury to engage in tendency reasoning, or did not adequately protect against risk jury might engage in tendency reasoning – Whether prosecutor reversed onus of proof – Whether judge’s failure to give a direction required by s 27(2)(a) of Jury Directions Act 2015 gave rise to substantial miscarriage of justice – Appeal allowed – Retrial ordered.

Jury Directions Act 2015, ss 12, 27 and 29.

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Counsel
Applicant:		Mr DA Dann KC with Mr J O’Connor
Respondent:		Mr J Dickie
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WALKER JA
TAYLOR JA:

In 2015, the applicant (who was then 23) and the complainant (who was then 17) married. It was an arranged marriage. On the complainant’s account (an account which was heavily contested by the applicant and members of his family), it was not a happy marriage. The complainant left the applicant and permanently separated from him (taking their two children with her) in 2021.
On 21 March 2024, following a 14-day trial, a jury found the applicant guilty of eight charges of rape (charges 2 to 5 and 7 to 10)[2] and one charge of common assault (charge 6).[3] The complainant was the alleged victim of each charge, and each charge was alleged to have occurred during the period the applicant and the complainant were living together as husband and wife.
[2]Contrary to s 38(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
[3]Contrary to the common law. The jury acquitted the applicant of a charge of making a threat to kill, contrary to s 20 of the Crimes Act 1958. The alleged victim was again the complainant.
On 30 August 2024, the judge sentenced the applicant to a total effective sentence of 14 years’ imprisonment, with a non-parole period of 10 years.[4]
[4]DPP v Saab (a pseudonym) [2024] VCC 1351.
The applicant now seeks leave to appeal against his convictions. His proposed grounds of appeal are:
1. A substantial miscarriage of justice occurred as:
(a)the prosecutor’s closing address invited the jury to engage in tendency reasoning, or create a risk that the jury would engage in such reasoning; and
(b)the judge’s charge invited the jury to engage in tendency reasoning, or did not adequately protect against the risk that the jury might engage in tendency reasoning in light of the prosecutor’s address
in circumstances where evidence of other misconduct by the applicant had been admitted only as evidence of context.
2.The prosecutor’s closing address reversed the onus of proof, resulting in a substantial miscarriage of justice.

The trial

The prosecution case was that, after marrying in the Middle East, the applicant and the complainant moved to Canberra. In 2017, they relocated to Melbourne. The complainant was not well-treated by the applicant. Between 1 March 2017 and 13 July 2021, the applicant committed eight acts of rape against the complainant, threatening to kill her on one occasion, and assaulting her on another occasion. The first six rapes occurred in different incidents, with charges 9 and 10 being alleged to have been committed during the one incident on 13 July 2021 (the day before the complainant left the applicant).
The applicant denied all of the offending alleged against him. In an amended response to the prosecution opening, filed after the complainant had commenced giving evidence, the applicant accepted that ‘he took part in an act of foreplay in wrestling [the complainant]’ on 13 July 2021; denied that the sexual penetration alleged in relation to charges 9 and 10 had occurred; said that he and the complainant ‘regularly wrestled each other during which he would be physical with the complainant and in turn she would hit him in the face and body’; and said that ‘such acts were done with [the] full consent of the complainant as part of their foreplay’.
The principal witness for the prosecution was the complainant. In addition to her evidence of the applicant’s conduct, the prosecution tendered video and audio recordings made by the complainant on her phone during the course of the incidents giving rise to charge 6 (common assault) and charges 8, 9 and 10 (the charges of rape alleged to have occurred on 11 and 13 July 2021). There was also an additional video and audio recording taken after the events giving rise to charges 9 and 10 in which the applicant was said to have made an admission.
Given the importance of the complainant’s evidence at trial, and more specifically in relation to proposed ground 1, it is now convenient to summarise briefly her evidence of the alleged offending and the evidence she gave of other instances of the applicant’s misconduct.

Complainant’s evidence

In short compass, the complainant’s evidence in relation to each of the charges of which the applicant was convicted was as follows:
(1)About a month and a half after the complainant, the applicant and the applicant’s family members moved into a property in Deer Park, the applicant forcibly took the complainant into their bedroom. The complainant resisted. The applicant pushed the complainant’s head into the mattress to keep her quiet and penetrated her vagina with his penis for about five to seven minutes before he ejaculated (charge 2 – rape).
(2)About two weeks later, at the same premises, the applicant took the complainant into a bedroom, made her sit down and forced her to put his penis inside her mouth until he ejaculated (charge 3 – rape).
(3)On an occasion after the applicant, the complainant and their infant son moved into a property in St Albans, the applicant took the complainant to their bedroom and pushed her onto the bed. He held her hands together as she resisted and tried to push him away. He took off her shorts and underwear and penetrated her vagina with his penis for three to five minutes (charge 4 – rape).
(4)On an occasion after the applicant and the complainant moved to a second property in Deer Park, the applicant came home drunk. He said he would like to have anal sex. The complainant told him that she did not want to because she had haemorrhoids. The applicant rolled the complainant over so that she was lying on her stomach. The complainant was screaming and could not move. The applicant penetrated her anus with his penis (charge 5 – rape).
(5)On an occasion at the same property, the applicant and the complainant returned home from a christening. The applicant was drunk. He verbally abused the complainant, who was then pregnant with their daughter. The applicant hit the complainant with an open hand to the lower back, causing her pain (charge 6 – common assault). The applicant recorded this incident on her mobile phone, and the recording and associated translation of what was said was tendered at trial.
(6)About one month after giving birth to her daughter, the complainant put her daughter and her son to sleep and went to have a shower. The applicant took his clothes off and went into the bathroom. The complainant told him that she was tired and still had stitches from an episiotomy. The applicant made the complainant sit on a chair in the bathroom and forced her to put his penis into her mouth (charge 7 – rape).
(7)In early 2021, the applicant, the complainant and their two children moved back in with the applicant’s family at an address in Thornhill Park. On 11 July 2021, the complainant was in the bedroom, and started an audio recording on her mobile phone when she heard the applicant approaching. The applicant pushed her onto the bed. He removed her clothes and put his hands around her neck. He penetrated her vagina with his penis (charge 8 – rape). The audio recording was in evidence, along with a translation of what was heard on the recording.
(8)On 13 July 2021, the complainant was in the bedroom of the same premises and had been getting her children ready to sleep when the applicant returned home from work. She felt that something would happen and started a videorecording on her phone. The applicant pushed the complainant onto the bed. The complainant told him to leave her alone and tried to push him away. The applicant bit her on the neck and on the vagina twice. He removed her underwear and tried to penetrate her vagina with his penis. He lifted her legs and penetrated her vagina with his penis (charge 9 – rape). He then penetrated her anus (charge 10 – rape). The videorecording and associated translation of the audio was in evidence.
A recording taken by the applicant shortly after the incident in which charges 9 and 10 were alleged to have occurred was also tendered at trial, along with a translation of the audio. The translation included the following:
[Complainant]: Is this the way?
[Applicant]: I tried many ways, and you let me/you forced me to do this way.
[Complainant]: Me?
[Applicant]: Yeah.
[Applicant]: You heard my words, ok? Keep it in your mind.
[Complainant]: From all your mind you do something with forcing me?
[Applicant]: Yes.
[Complainant]: And you telling me yes?
[Applicant]: Hmm.
…
[Applicant]: I will be back in the night, be ready for the night.
[Complainant]: You will come in the night? You will not see me at night.
[Applicant]: You go to [daughter’s] room.
[Complainant]: Yes, I will go to [daughter’s] room.
[Applicant]: I will come after you there.
[Complainant]: You come and see what will happen.
This evidence was relied upon by the prosecutor at trial as containing admissions by the applicant which established that he had been forcibly having sex with the complainant without her consent; and in order to rebut the applicant’s assertions in his record of interview that he loved the complainant and respected her wishes regarding sexual activity.
In addition to her evidence about the applicant’s alleged offending against her, the complainant gave the following context and relationship evidence:
(1)The first time the complainant and the applicant had sexual intercourse after they were married, the complainant did not consent.
(2)After they were married, the applicant would approach the complainant for sex. He would not touch her nicely or kiss her or comfort her. The complainant said, ‘if I don’t want to do sex, and he wants to, he will force me to do so’.
(3)At the first address in Deer Park at which they lived, there were ‘many other sexual incidents’ involving the applicant.
(4)There were ‘a lot’ of sexual incidents or problems at the property in Thornhill Park, the complainant having ‘recorded a couple of them’.[5]
[5]In context, these were the audio recording relating to charge 8 and the videorecording relating to charges 9 and 10.
In cross-examination, it was put to the complainant that all of the allegations she had made against the applicant were false, and that none of the alleged offending had, in fact, occurred. In the course of suggesting that the marriage was not as unhappy as the complainant asserted, the complainant was taken to collections of photographs and videos that appeared to show her happily engaging with the applicant and their children, as well as a video in which the applicant and the complainant appeared to be happily wrestling on a bed.
The complainant was cross-examined about Family Court proceedings in which she and the applicant were engaged. It was put to her that she had ‘fabricated’ the allegations she had made against the applicant in order to prevent him from seeing their children. Unsurprisingly, the complainant denied this suggestion.
Other evidence
For present purposes, it is not necessary to summarise all of the remaining evidence given at trial. It is sufficient to observe that a number of witnesses were called (some by the prosecution, and some by the defence) who gave evidence about the nature of the relationship between the complainant and the applicant; and that the applicant did not give evidence at trial.[6]
[6]Other evidence included evidence from the informant; evidence from a doctor who examined the complainant on 15 July 2021; evidence from friends of the applicant’s family; evidence from a person who employed the applicant in 2017/2018; and conflicting evidence about the warmth (or lack thereof) of the relationship between the complainant and members of the applicant’s family.
The high points of the defence case on the issue of the relationship between the complainant and the applicant were as follows:
(1)The applicant’s mother gave evidence that the relationship between the applicant and the complainant was ‘very good, very good, and they used to go out for picnics, excursions, travel interstate’. The applicant and the complainant ‘looked to be a very happy, loving couple, with hugs, and kisses, and so on’.
(2)The applicant’s father gave evidence that the relationship between the complainant and the applicant was ‘very good’. They used to address each other as ‘honey, my love, my heart’ and so on.
(3)The applicant’s sister gave evidence that, from the time the complainant and the applicant lived in Aman until the time the complainant left the applicant in July 2021, their relationship was ‘very good, very beautiful and very strong, all the time’; and that ‘everyone was shocked and surprised’ when the complainant left home in July 2021.
(4)The applicant’s brother gave evidence that the relationship between the applicant and the complainant ‘was beautiful actually’ from the time they were married until the day the complainant left the applicant in July 2021.

Discussion between judge and counsel about issues and directions

Sections 11 and 12 of the Jury Directions Act 2015 (‘the JDA’) require there to be a discussion between the judge and counsel about the issues in dispute between the parties and the directions to be given by the judge to the jury. Specifically, s 12 of the JDA requires the prosecution and defence counsel to request that the judge give, or not give, particular directions in respect of the matters in issue, and the evidence in the trial relevant to those matters. Section 11 of the JDA provides that the discussion between the judge and counsel, and the requests that the prosecution and defence counsel are required to make, is to occur ‘[a]fter the close of all evidence and before the closing address of the prosecution’.[7]
[7]JDA s 11.
In the present case, the relevant discussion and requests occurred immediately before the evidence of the last witness called for the applicant.[8] No complaint, however, is made about the timing of this part of the trial. Moreover, nothing said in the evidence of the last witness had any capacity to affect the exercise which ss 11 and 12 of the JDA required the parties to engage in. Thus even if the timing of the discussion were thought to involve error, such error would have been immaterial and would not have given rise to a miscarriage of justice.
[8]The applicant’s former employer.
Pursuant to s 12 of the JDA, defence counsel requested the judge to give a number of directions. These included directions as to good character, prior inconsistent statements, delay and forensic disadvantage. During the course of this discussion, the judge asked counsel whether a direction on ‘other misconduct on [the applicant’s] part was required’.
The transcript of this part of the discussion is not entirely clear. That said, it appears that both counsel were agreed that a direction about ‘other misconduct evidence’ should be given. However, there was no discussion about whether it was only a direction under s 27 of the JDA that was required, or whether what was required were directions under both s 27 and s 29 of the JDA. In any event, the judge asked counsel to identify the evidence of other misconduct that would be the subject of the directions to be given on other misconduct evidence. While emails were apparently sent to the judge about the content of directions that might be given by the judge, those emails were not initially provided to this Court. We were informed by counsel that there was nothing relevant in those emails. After the hearing, however, we were provided with copies of these emails. The only relevant matter in them was a request by the prosecutor for a ‘misconduct direction … in relation to the evidence that there were other acts of forcible non-consensual sexual acts which increased during the time the complainant lived [in Thornhill Park]’. Again no reference was made to the section or sections of the JDA pursuant to which that direction was sought.

Prosecutor’s address

Relevantly to proposed ground 1, in his final address, the prosecutor said:
[The complainant’s] leaving for good on 14 July, once she secured the evidence of the abuse, is consistent with her evidence of the nature of the relationship between her and her husband and also his family. There is a symmetry in the overall account of the relationship between her and her husband and his family. There is a ring of truth about it. That evidence makes more likely the eight incidents and 10 charges that were committed.
…
That narrative of the history of the relationship helps you to accept as more likely that the offences were committed. That narrative will also assist you in determining whether [the complainant] is a credible witness, a truthful and accurate recounter of events, and also whether the offences alleged were committed.
Relevantly to proposed ground 2, and a little later in his final address, the prosecutor said:
Remember there were three defence witnesses that were called. The accused does not have to produce any other evidence, but chose to produce videos, screenshots and posts of messages of his own. And during the cross-examination of [the applicant’s mother], a mobile phone was produced and she confirmed it belonged to her son [the applicant]. And then she identified a photo on the phone of her son and [the complainant]. Again, I repeat that the accused does not have to prove anything.
But one thing that hasn’t been produced is a single message from [the complainant] to [the applicant] in which she expresses her love for him or his love for her, or messages that show that [the complainant] was best friends with her mother-in-law. If there were any electronic messages between [the complainant] and [the applicant] they would be on his mobile phone, you would have thought.
During a break in the prosecutor’s address, the judge raised her concern with the prosecutor about this part of the prosecutor’s address. Her Honour said:
The other one [concern the judge had about the prosecutor’s address] was about the lack of lovey-dovey messages, there was definitely a reverse onus. Although you disclaimed it, there was definitely a reverse onus there, which I will need to say something about as well.
A little later in this discussion, the judge repeated that she would ‘say something [in her directions to the jury] about the failure to produce lovey-dovey messages’, before saying that it was ‘not for [the applicant] to prove anything’.

After this discussion, the prosecutor completed his final address without incident.
Judge’s charge to the jury
In the course of the judge’s charge to the jury, and relevantly so far as proposed ground 1 is concerned, the judge said:
There are 10 charges on the indictment, but there was also evidence in the case relied upon by the prosecution that [the complainant] said there were other acts of forcible non-consensual sexual activity and which increased during the time when the couple, she and the accused, went to live [in Thornhill Park].
So this evidence has been led to show the true nature of the relationship between the accused and the complainant and to rebut evidence that the relationship of the accused and the complainant was mutually loving and respectful. It also provides a reason, [the prosecutor] has argued to you, why the complainant finally left the accused on 14 July 2021.
You need to keep this evidence in perspective. It is only one part of the prosecution 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 man. The evidence has been led for the limited purposes of providing what the prosecution says is a full picture of the relationship between the accused and the complainant, particularly at [Thornhill Park] before she left the marriage.
For convenience, we will refer to these paragraphs of her Honour’s charge as ‘the other misconduct direction’.
In relation to the onus of proof (relevant in relation to proposed ground), the judge gave directions of the usual kind that the accused did not have to prove anything, and that ‘the onus of proving the accused’s guilt always remains on the prosecution, regardless of whether the accused gives or calls any evidence’.
That said, notwithstanding her Honour’s earlier statement that she would say something specifically about that part of the prosecutor’s address relating to the failure by the applicant to produce a ‘single message’ in which the complainant expressed her love for him, the judge did not give any direction of the kind that she had foreshadowed during the break in the prosecutor’s address.

Proposed ground 1

During the course of the discussion mandated by s 12 of the JDA, the judge and counsel engaged in a discussion concerning a direction about other misconduct evidence. Very little was said. In the course of the discussion neither the judge nor counsel made any reference to particular section numbers of the JDA that relate to other misconduct evidence. We would infer that at least a direction under s 27 was sought. It is unclear whether counsel also sought a direction under s 29.
Once sought, s 27(2)(a) of the JDA required the judge to give a direction identifying how the other misconduct evidence led at trial was relevant to the existence of a fact in issue in the trial ‘and [to] direct the jury not to use the evidence for any other purpose’.[9] The judge identified for the jury how the other misconduct evidence was relevant to the existence of a fact in issue. She also gave the other components of a s 27 direction, set out in s 27(2)(b) and (c). However, her Honour did not direct the jury ‘not to use the evidence for any other purpose’, as required by the second part of s 27(2)(a) of the JDA.
[9]JDA s 27(2)(a).
Section 276(1)(b) of the Criminal Procedure Act 2009 requires this Court to allow an appeal against conviction if the appellant satisfies the Court that as a result of an error or irregularity in, or in relation to, the trial, there has been a substantial miscarriage of justice. In determining whether an appellant has so satisfied the Court, a number of determinations must be made: first, whether the appellant has established an error in connection with the conviction under appeal; secondly, if so, 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; thirdly, if not, whether the appellant has established that the error may have affected the result of the trial; and fourthly, if so, whether the respondent has established that conviction was inevitable.[10]
The use of the phrase ‘the true nature of the relationship’
[10]Karam v The King [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA); Allen v The King [2024] VSCA 128, [18] (Taylor, Lyons and T Forrest JJA) (‘Allen’).
In his final address, the prosecutor referred to particular pieces of evidence as either showing ‘the true nature of the relationship’, or not showing ‘the true nature of the relationship’. That phrase was then picked up by the judge when, in directing the jury, her Honour said that the evidence of the applicant’s other misconduct was led to show ‘the true nature of the relationship’ between the applicant and the complainant.
The applicant was critical of the prosecutor and the judge for using this phrase, observing that it is a phrase which has previously been deprecated by authority in this Court[11] and in the New South Wales Court of Criminal Appeal.[12] Relying upon these authorities,[13] the applicant submitted that the use of the phrase ‘the true nature of the relationship’ carried with it a risk of tendency reasoning being employed by the jury.
[11]Seccull v The King (2022) 69 VR 454, 478 [77] (Priest AP), 486 [120] (Niall JA and Kidd AJA); [2022] VSCA 219 (‘Seccull’).
[12]JDK v The Queen (2009) 194 A Crim R 333, 350 [36] (McClellan CJ at CL); [2009] NSWCCA 76; SKA v The Queen [2012] NSWCCA 205, [275] (Adams J).
[13]And in particular, Seccull (2022) 69 VR 454, 486 (Niall JA and Kidd AJA); [2022] VSCA 219.
The respondent contended, however, that the use of the phrase ‘the true nature of the relationship’ did not invite tendency reasoning in the circumstances of the present case. It observed that, at trial, there was a heavy contest between the prosecution and the defence as to whether the relationship between the complainant and the applicant was a controlling and unhappy one (the prosecution position) or a happy and loving one (the defence position). It submitted that, in circumstances where an array of photographs and videos had been tendered going to this issue, it was not inappropriate for either the prosecutor, in the course of his final address, or the judge, in the course of her charge, to refer to ‘the true nature of the relationship’.
In the circumstances of the present case, we do not think that the use of the phrase ‘the true nature of the relationship’ carried with it any real risk of tendency reasoning being employed by the jury. While trial counsel and trial judges plainly need to guard against the risk that tendency reasoning might be invited by the use of this phrase, there will be cases (of which this is one) where the nature of a relationship between an adult complainant and an accused is a contested issue which may be necessary for the jury to resolve. In such cases, and where it is necessary to resolve conflicting evidence for the purpose of determining the true nature of the relationship, it is difficult to see how a prosecutor or judge might deal with the relevant evidence and arguments without occasionally using the phrase ‘the true nature of the relationship’. That said, care needs to be taken in such cases to ensure that any risk of tendency reasoning created by the use of the phrase by counsel or the judge is considered and (if necessary) appropriately addressed by the judge in directions given to the jury.
For present purposes, it is sufficient for us to say that, in the circumstances of this case, the use of the phrase ‘the true nature of the relationship’ by the prosecutor and the judge is not a basis upon which proposed ground 1 could be upheld. In any event, the use of that phrase in this case was of far less consequence than the prosecutor’s express invitation to the jury to rely on the relationship evidence as making it ‘more likely’ that the applicant had committed the offences with which he was charged. In inviting the jury to reason in that manner, the prosecutor used the language of tendency reasoning and effectively invited the jury to engage in that form of reasoning.
The failure to give a complete direction under s 27(2)(a) of the JDA
Accepting for present purposes that, in the context of the present case, the use of the phrase ‘the true nature of the relationship’ did not involve any error of the kind referred to in s 276(1)(b) of the Criminal Procedure Act, and accepting that the judge correctly identified how the other misconduct evidence was relevant to a fact in issue in the trial, the problem remains that the judge did not direct the jury as required by s 27(2)(a) of the JDA ‘not to use the evidence for any other purpose’.
The respondent contended that this aspect of s 27(2)(a) was implicit in the judge’s s 27 direction because her Honour told the jury that the evidence in question had been ‘led for the limited purpose’ of providing a full picture of the relationship. The respondent contended that a jury would have necessarily understood that they were not to use the evidence for any other purpose. We do not accept that submission. The statement that the evidence was led for a limited purpose did not sufficiently alert the jury to the fact that they were not to use it for any other purpose. Furthermore, the Parliament having seen fit to require a judge to give a direction as required by s 27(2)(a), we do not think that obligation can be met by implication. (That is not to say that the judge is required to use the precise words in s 27(a); but nonetheless the judge’s direction must be express, not implied.)
In our view, the failure by the judge to give a direction as required by s 27(2)(a) of the JDA was an error of the kind referred to in s 276(1)(b) of the Criminal Procedure Act.[14] There was no reason not to give the direction. The failure to give the direction appears to have been an oversight. The direction was required to have been given as part of the directions on ‘other misconduct evidence’ requested by trial counsel during the s 12 discussion.
[14]See generally, Awad v The Queen (2022) 275 CLR 421; [2022] HCA 36.
That said, the error in failing to give this direction was neither ‘fundamental’, nor a ‘serious departure’ from proper trial processes.[15] The failure to give this direction requires this Court to consider whether the error had the potential to affect the outcome of the trial. Doing that in this case, we are satisfied that the applicant has established that the error could have affected the result of the trial in that, without the direction being given, it is possible that the jury may have reasoned that the other misconduct committed by the applicant made the charged offending more likely to have also been committed by him. That is because the prosecutor expressly and wrongly invited the jury to reason on that basis by telling them that that the ‘narrative of the history of the relationship helps you [the jury] to accept as more likely that the offences were committed’. As we have already observed, that was the language of tendency reasoning.
[15]Baini v The Queen (2012) 246 CLR 469, 479–482 [25]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59; Allen [2024] VSCA 128 [20].
It follows that, unless we are satisfied that conviction on any of the charges was inevitable, the applicant’s appeal must be allowed on ground 1.
Was conviction inevitable?
The respondent did not seek to contend that conviction on all charges was inevitable. Originally in its written case, the respondent contended that the case in respect of charges 9 and 10 ‘was overwhelming’, and that conviction on those charges was thus inevitable. The respondent noted that the evidence of the complainant in relation to those charges ‘was corroborated by the video recordings which were tendered during her evidence’. The respondent contended that there was no reasonable possibility that the video of the events alleged to constitute charges 9 and 10 truly showed ‘rough foreplay’ as asserted by the applicant. During oral argument, however, these contentions were no more than faintly pressed.
While the video of the events alleged to constitute charges 9 and 10 is obviously supportive of the prosecution case on those charges, we are not persuaded that the video makes conviction on those charges inevitable. The video does not show either of the sexual penetrations the subject of those charges. Thus, in order to determine what is occurring in that video, it is necessary to evaluate the complainant’s description of the events captured by the video. A conviction on those charges could only be sustained if the complainant’s testimony is believed. That was not inevitable.
Did the judge err in not giving a direction under s 29 of the JDA?
It follows from what we have said above that proposed ground 1 must be accepted. Having regard to this conclusion, it is not necessary to determine whether there was an error or irregularity in the trial in the judge not giving a direction under s 29 of the JDA.
That said, as we have already observed, the request made of the judge to give a direction on the other misconduct evidence adduced by the prosecution was not explicit as to whether any direction was sought under s 29 of the JDA. Plainly, if a direction had been sought under s 29, then it would have been an error or irregularity in the trial for the judge not to give that direction.
On the other hand, if no s 29 direction had been requested, the judge would have had to determine whether there were substantial and compelling reasons for giving such a direction, notwithstanding the failure of either side to request one.[16] In the context of the prosecutor’s address to the jury that the ‘narrative of the relationship’ made it ‘more likely that the offences were committed’, we are of the view that there were, in the absence of any submission by defence counsel to the contrary, substantial and compelling reasons for giving the directions required by s 29 of the JDA. The prosecutor had plainly invited the jury to engage in impermissible tendency reasoning. That improper invitation by the prosecutor required the judge to address it in the way contemplated by s 29 of the JDA.
[16]JDA s 16(1).
Finally (on the question of s 29 of the JDA), we should observe that the difficulty in determining whether a s 29 direction was sought by defence counsel was the result of the judge raising the issue of whether an ‘other misconduct evidence’ direction was required, without letting defence counsel raise the matter of what, if any, direction (including the terms of the direction) was required in respect of that issue. While it may appear efficient for the judge to suggest particular directions which might be given, s 12 of the JDA requires the prosecution and defence counsel to each request that the trial judge give, or not give, particular directions. This Court has previously identified problems that can occur when there is a divergence at trial ‘from the strict wording’ of Part 3 of the JDA .[17] Requiring counsel to request the directions to be given ameliorates the risk that counsel’s agreement to a high-level proposition put by the judge might lead to some lack of clarity as to the precise terms of the direction to which the judge and counsel have agreed. It is also desirable that directions are discussed by reference to particular sections of the JDA, rather than by reference to abstract labels capable of referring to more than one possible direction.
Proposed ground 1: conclusion
[17]Parker v The King [2024] VSCA 72, [122]–[129] (Whelan JA).
For the reasons given above, the applicant’s appeal against conviction must be allowed on proposed ground 1 and a retrial ordered of charges 2 to 10.

Proposed ground 2

In telling the jury in his final address that the accused had chosen ‘to produce videos, screenshots and posts of messages of his own’ but that ‘one thing that hasn’t been produced is a single shot from [the complainant] to [the applicant] in which she expresses her love for him or his love for her’, the prosecutor reversed the onus of proof. The statements were clearly wrong. They should not have been said.
Moreover, the vice of these statements was not ameliorated by the ‘topping and tailing’ of them with what some might think was, in the circumstances in which the prosecutor’s improper argument was made, a ritualistic incantation that ‘the accused does not have to prove anything’.
While it is important for any criminal jury to be told that, no matter whether the accused has called or not called evidence, there is never any onus on an accused to produce any evidence on any topic, any statement that an accused has failed to produce some item or evidence risks reversing the onus of proof, no matter what allegedly panacean statement might be made before or after the making of some assertion that the accused has not produced some item at trial that the jury might think material.
The judge correctly recognised the vice of the prosecutor’s statements and said that she would give directions about them in her charge. Unfortunately, her Honour failed to do so. Also unfortunately, neither defence counsel, nor the prosecutor, reminded her Honour about the matter.
While there were opportunities for defence counsel to remind the judge during breaks in her Honour’s charge, it may be accepted that to have raised the matter (by way of an exception) at the end of the charge had its own difficulties. A corrective direction on the prosecutor’s improper argument at the conclusion of the charge would have tended to highlight the argument, with the concomitant problem that the jury may have been moved to observe that there was an absence of loving messages from the complainant to the applicant.
Given defence counsel’s failure to raise the judge’s failure to give a direction of the kind her Honour said she would give in relation to the prosecutor’s improper argument, we may not have upheld this appeal if ground 2 were the only ground of appeal. However, given our conclusion on ground 1, it is not necessary for us to resolve that question. It is sufficient for us to say that the failure of the judge to give a corrective direction about the prosecutor’s improper argument during the course of the charge fortifies us in our conclusion that this appeal should be allowed.

Conclusion

Leave to appeal will be granted and the appeal will be allowed. The applicant’s convictions and sentences on charges 2 to 10 on Indictment M12418103 will be set aside and we will order that the applicant be retried on those charges.
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[2025] VSCA 211

5 September 2025