Taig v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0052

JAMES STANLEY TAIG	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST AP, NIALL and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2022
DATE OF JUDGMENT:	27 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 235
JUDGMENT APPEALED FROM:	DPP v James Taig (County Court of Victoria, Judge Smallwood, 17 February 2022)

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CRIMINAL LAW – Appeal – Conviction – Indecent act with a child under 16 – Sexual penetration of a child under 16 – Whether substantial miscarriage of justice occurred due to manner complainant gave evidence – Whether substantial miscarriage of justice occurred due to judge’s failure to warn jury of misusing complainant’s distress – Whether judge’s charge to jury was unbalanced – Appeal allowed – New trial ordered.

Bugeja v The Queen (2010) 30 VR 493 and Whitehorn v The Queen (1983) 152 CLR 657 considered, Baini v Commonwealth (2012) 246 CLR 469 applied.

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Counsel
Applicant:		Mr T Kassimatis KC with Mr J Anderson and Mr R de Kretser
Respondent:		Ms D Piekusis KC with Mr A McCowan
Solicitors
Applicant:	Slades and Parsons Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA
T FORREST JA:

On 14 December 2021 the applicant was convicted by a jury of nine charges of indecent act with a child and four charges of sexual penetration of a child.[1]
[1]The total effective sentence was 2 years, 6 months’ imprisonment wholly suspended for 3 years.
He sought leave to appeal against conviction on the following grounds:
(1)A substantial miscarriage of justice occurred as a result of there having been little or no attempt made to curb the complainant’s distress at trial, or to warn the jury against its misuse. In particular, the trial miscarried because:
(a)the complainant was permitted to level repeated attacks at defence counsel and threats at the Applicant; and
(b)the trial judge refused to direct the jury that the complainant’s distress could not be used by them to corroborate his claims.
(2)A substantial miscarriage of justice occurred as a result of the trial judge’s unbalanced charge to the jury. In particular, the trial miscarried because the trial judge charged the jury in terms that:
(a)invited the jury to find that the complainant’s evidence was ‘powerful’;
(b)undermined, by an appeal to little more than conjecture, a key aspect of defence counsel’s attack on the complainant’s credibility and reliability;
(c)endorsed the complainant’s explanation for the delay in his complaint by charging that the trial process ― at which he was called a liar ― had vindicated his fear as a child that he would not be believed; and
(d)failed adequately to balance his extensive summary of the evidence relied upon by the prosecution with the defence case at trial.
(3)A substantial miscarriage of justice occurred as a result of an aggregate of the errors and matters relied upon in Grounds 1 and 2.
On 6 October 2022 this Court granted the applicant leave to appeal, the appeal against conviction was allowed and a new trial was ordered. What follows are our reasons for those orders.

Background

The complainant and the applicant were second cousins who would on occasion stay over at one or another’s house. The offending was alleged to have occurred between 1 January 2006 and 31 December 2006. During this period the complainant was aged 8 to 9 years old and the applicant was approximately 15 years old.
The charges arose from four alleged incidents. It is sufficient to summarise very briefly the relevant circumstances.

Incident 1

The complainant was lying on the couch in the lounge room at his home address. The applicant was lying on a mattress on the floor. The pair were watching television and the complainant’s parents had gone to bed.
The complainant described the applicant as having worn football shorts. The applicant told the complainant to lie on the mattress next to him, which the complainant did. The applicant exposed his penis and started to masturbate himself with the complainant’s hand (charge 1).
The applicant then pushed the complainant’s face down onto his penis, forcing his penis into the complainant’s mouth. The applicant then took the complainant’s boxer shorts off and put the complainant’s penis into his mouth (charges 2 and 3).
The applicant rubbed the applicant’s bottom and rubbed his penis against the complainant’s buttocks (charge 4). The applicant told the complainant not to tell anyone.

Incident 2

The complainant was dropped off at the applicant’s house after school. The pair played PlayStation games in the applicant’s bedroom. Later that night, the applicant undressed and started to masturbate in front of the complainant (charge 5).
The applicant then grabbed the complainant’s hand, placing it on his penis and forcing the complainant to masturbate him (charge 6). The applicant then forced his penis into the complainant’s mouth, pushing it in and out (charge 7). The applicant touched and rubbed the complainant’s penis at the same time (charge 8).
The applicant then removed the complainant’s underpants and inserted the complainant’s penis into his mouth, performing oral sex on him before the complainant got back into bed (charge 9). The complainant witnessed the applicant masturbate to ejaculation (charge 10).

Incident 3

The complainant was staying over at the applicant’s house. The applicant touched the complainant’s penis and attempted to get the complainant to masturbate him (charge 11).

Incident 4

The applicant arrived at the complainant’s house late at night. The applicant exposed his penis, masturbating himself in front of the complainant (charge 12). The applicant leant over and touched the complainant’s penis before the complainant responded saying ‘[n]o, fucking go away’, pushing the applicant’s hand away (charge 13).
The applicant then moved onto a mattress and went to sleep.

Ground 1

Ground 1(a) is underpinned by an assertion that the complainant repeatedly and with little restraint embarked on attacks upon the applicant, the applicant’s barrister and more generally the legal system. Given his volatility, so the submission goes, neither the prosecutor nor the trial judge took sufficient steps to control the witness. The submission proceeds that in re-examination the prosecutor asked an extraordinarily impermissible question calculated to produce an entirely predictable tirade thus causing the trial to miscarry.
These are serious allegations and it is necessary to set out various portions of the pre‑trial discussion, complainant’s evidence-in-chief, and cross-examination. At the parties’ invitation we have listened to an audio recording of the complainant’s evidence.

The trial

The jury was empanelled on Friday 3 December 2021. The complainant was to be the first witness called on Monday 6 December 2021. He was to give his evidence over video link, and in the absence of the jury, the judge confirmed with the complainant that he could see and hear proceedings. In the complainant’s absence the following exchange occurred:
HIS HONOUR: Is he stoned? [Prosecutor], just wait a second.
PROSECUTOR: Yes, I’m a little bit concerned, Your Honour.
HIS HONOUR: So am I.
PROSECUTOR: I had a conference with the complainant this morning and he was fine, but he doesn’t sound too good now.
HIS HONOUR: No.
PROSECUTOR: I wonder if Your Honour will stand down a moment, I’ll just go and have a quick word with him and make an assessment.
HIS HONOUR: Yes, I think that might be wise.
PROSECUTOR: Yes, he’s a completely different person to what he was half an hour ago.
HIS HONOUR: He was a completely different person to what he was the other day, yes, okay. Yes, all right, I’ll just stand down.
(Short adjournment.)
(Upon resuming in the absence of the jury.)
Yes.
PROSECUTOR: Yes, he was in a bad way when we went down there, Your Honour.
HIS HONOUR: Yes.
PROSECUTOR: And whilst he did calm down a bit towards the end of it, I’m not confident that he’s ready to go today.
HIS HONOUR: No, all right. What do you want to do?
PROSECUTOR: Well, I can tell Your Honour now he’s sort of putting on a brave face right now, but - and he wants to get it over and done with obviously, but I’m concerned that he’s got himself into that state this morning and I really think we should put it off until tomorrow, start clean at 10.00.
HIS HONOUR: Yes, okay.
PROSECUTOR: Now, I know we might even have the same problem then but - - -
HIS HONOUR: Look - - -
PROSECUTOR: - - - he was in a really bad way when we first went - and it’s not just me, my instructor and the informant all share that view.
HIS HONOUR: Well, just watching him was - yes.
PROSECUTOR: Yes, well he was worse than that.
Shortly thereafter the prosecutor said:
PROSECUTOR: He will probably go off his head when he finds out it’s going to get adjourned, but I really think that it should go off for 24 hours, Your Honour.
The trial was adjourned until the next day. The complainant was a ‘different person today’ according to the prosecutor and he was finally sworn as a witness. He commenced his evidence impressively and seemed, as far as can be ascertained, to be a forthright witness. The questions asked in evidence-in-chief were, on important matters, non-leading, and initially his answers were by and large responsive. The complainant seemed to become distressed as the questioning turned to the impugned allegations of sexual impropriety.
Approximately 10–15 minutes into his evidence-in-chief the following exchange occurred:
Yes, all right. Well, I think you said you’d been on the couch?---Oh, on the - on the mattress, I don’t know, it’s a bit hard you know, I just remember the sexual fucking acts that he done to me, you know what I mean. I remember having - I remember him pulling his dick out, pulling his cock, and then he shoved it in my mouth.
Yes. So---?--- And I remember him touching me up on the arse, I remember looking up at the clock and it was - I remember seeing it was 10.00 at night, and I remember my dad got up and took a piss.
The complainant seemed to become quite distressed. A short discussion occurred between the judge and the prosecutor as to how best to handle the obviously distressed witness:
HIS HONOUR: Yes, all right. It might be better just to let him go. Just let him, just describe it and then try and - - -
PROSECUTOR: I think he’s done that, that's what I’m trying to do.
HIS HONOUR: No, I understand that, yes, but I’m just thinking, yes, I know, yes, I’m not telling you how to do your job, but I think he's just going to get wound up on each one, so we’ll let him get - - -
PROSECUTOR: We’ll just keep at it.
HIS HONOUR: Yes, all right. …
When the complainant returned from the break, in the absence of the jury, his Honour addressed the complainant:
HIS HONOUR: Hello [complainant]. All right mate. This isn’t having a go at you, it’s just a yarn just to sort of get through this as best we can?---Yeah, I’m just you know, I’ve – I’ve waited two years for this mate, for this day - - -
Yes?--- - - - you know, it’s been two years through this COVID shit, right, and I’m really stressed out, you know what I mean, it’s been a long time. You know, and it’s hard for me at the moment, I’m gonna try and answer your questions as best as I can but I’m not - - -
Well I won’t be asking you but - yes, I know - - -?---You know anyone that asks me whatever, or I’m just not a hundred per cent you know what I mean.
No, I understand that. That’s why I’m having a quick yarn to you, okay. I’ve got no trouble with it, I understand totally how you feel and how wound up you must be, all right?---Yep.
But what - all I’m trying to say to you is, having sat here for a long time mate, been doing this for 20 years watching people, you know, the stuff that’s happened to you has happened to you, all right, you’re (indistinct) if you can - all right, and I’m not going do me block if you walk out, that – don’t worry about that, all right, that’s not going to happen, but if you can, you’ll find it’s easier if you keep going. Right. Because every time you go out, you’ve got to come back. All right. Now that’s not saying don't take breaks, and I know it’s hard, but you'll probably find it’s easier to do with a couple of breaks than with half a dozen if you know what I mean. Because each time you come back in, you’ve got to calm yourself down. Now - - -?---Yep.
Yes, that’s all I'm saying to you, and if you want a break I’d prefer you just said, can I have a break and I’ll say, yes, rather than you know, just sort of - - -?---I’m sorry for stopping - - -
No, I’m not asking for an apology mate, I’m just telling you all right, it sort of doesn’t – it’s not a – it’s not a good – it’s not a real good look?---Yeah.
But look, if you do need one, just say, can I have a break please and we’ll stop immediately, all right? I’m just saying to you that no matter how you’re feeling, and I totally understand that, if you can keep going often makes – you’ll get the process over a bit quicker that’s all?---Yep, yeah, I understand.
All right, don’t think I don't understand how you’re feeling, I do, all right?---Yep.
All right. So, what we’ll do is we’ll mute you for about 20 seconds and then will bring you back up again, all right?---All right.
All right. Yes (indistinct words). Yes.
It must have been obvious to everyone in the court that great care needed to be taken with the witness in order to maintain an orderly and fair process.
The evidence-in-chief continued. The complainant’s demeanour varied at times, from what appeared to be distress to extreme anger. The questioning from the prosecutor was respectful and sensitive. Having described the first sexual incident, the prosecutor asked him to recount the last.
Yes?---A lot of the Koori fellas, all the boys here we used to go like - not me, talking about me, I’m talking about like the community, they used to go out and drink down the lake and at Queens Gardens. I think he come from there, I - I don’t know if he did or not but I just remember him coming there, he had on a pair of blue jeans, he had on a white jumper with a Cotton On print on it. ROMPA, ROMPA [complainant]. Relax, observe, manage, patience and act, ROMPA. I just need a sec.
HIS HONOUR: Yes, take your time.
WITNESS: Yep, he come - come to my mother’s place.
PROSECUTOR: Yes, all right?---Asked to - asked to stay.
When he used the expression ‘ROMPA’, the complainant was adopting a technique developed by a counselling organisation designed to assist him in managing stressful situations. Occasionally the complainant would resort to inappropriate language when describing the impugned events, but this was of no real moment, except perhaps to remind everyone of his volatility.
As his evidence developed the complainant’s distress was less apparent and his dominant demeanour seemed to be anger. This is apparent from the following passages:
No, all right. If I can break that up, why was it that you didn’t complain to anyone, when he did this to you the first time?---I didn’t really know what the fuck he was doin’ to me.
Yes?---And I remember him saying we - we will get in trouble.
Yes. Was - - -?---And I - I didn’t know how to - I didn’t even know what was goin’ on to me, I - I didn’t know what he was doin’ to me. I didn’t know that I was his personal sex toy.
All right. Did you - apart from these things happening to you, did you – did you look up to Jamie as an older cousin?
---Yeah. He was supposed to be like a big brother, that's the way cousins are in the Koori community, we're brothers, that's what he's supposed to be for me, supposed to be my big brother and he done this shit to me.
Why not?---'Cause I didn't know how to tell anyone. And I didn't know you know, cunts would look at me and think I'm a faggot, think I'm gay.
Yes. When did you - I mean leave aside this sexual activity with Jamie, when did you become more sexually aware in a general way, how old were you?---Around my teens.
Yes, all right. Is that how you felt when you were in your teens. You didn't know, well you didn't want anyone to think you were a faggot?---Yeah.
Yes, all right. So as you're growing up through your teens, up to the age of 20, 21 or thereabouts, you didn't tell anybody?---No. I didn't have the guts to.
Yes?---I didn't have the strength to open up, I didn't. I was an angry - I was - I - I buried the anger and the pain to keep me going. To just - it was all - created ah just buried it, just kept it deep, shut up you know, didn't want to say any of it to anyone.
Did - - -?---Just buried it deep inside me.
How did you get on at school from the age of say, nine or 10, throughout the time you went to school, through secondary school and so on, how did you get on?---Not - not that well - - -
What do you - - -?--- - - - at all.
What do you put that down to?---The thinking about that every day. So, I don't doubt I have a lot of anger, so I just wanted to have a punch on all the time.
Yes, all right. I'll come back to that in a minute. But what I wanted to ask you is this. You've told us that he sexually abused you for this period of time then he's - it stopped and he's moved - - -?---Yep. - - - he's moved away, all right?---I ran away too, so.
Yes, all right. Well how old were you when you ran away?

---Think I was around 15.
yes?---Hooked up with a ah, it was like a little (indistinct words) indigenous kids, you know, come from pretty messed up homes and that, and they were just kind of cruisin' around on the streets and I felt safe when I was with them boys. They become my best mates and my brothers. They looked after me and I stayed with 'em.
Yes, why did you run away?---I wanted to escape it all. I didn't want to have to deal with this shit. And I'm fucken sick of it mate. It's killin' my spirit.
Yes. So, just getting back to going to the hospital, you say that you saw Jamie there, whereabouts was it that you saw him?---Near the hospital cafeteria.
Yes. And what happened?---Me and Shekeal was standin' there another relative Bianca, was standin' there.
Yes?---I walked up to him, I wanted to kick him, but it wasn't the right time, so I said don't do that. So I shook his hand and I kinda stared at him, give 'im that look you know, like yeah, yeah, you fucken dog.
Yes. Why was it that you - you went and complained then, having not complained all those years?---Well, all those years when I was younger, I ended up in the street, hangin' around those type of people, I didn't have a good relationship with the police, I didn't trust the police, I didn't like the police, and I never - like, as I was younger you'd hear about the stolen generation and that they took the children away. And you know, my grandfather used to tell me stories about when he was - 'cause he had light fair skin, when the police car used to come to the mission he had - he - he used to have to run for the river, 'cause the welfare would come there to take him. Have you ever heard the song Auntie wrote they took the children away, listen to that, then you'll get the fair idea.
Yes?---That's why I didn't go to the police and that, because I didn't like the police.
All right. But what changed, that's what I want to ask, what motivated you to do it - to - to complain - - -?
---Um - - -
- - - to the police and bring this here?--- - - - well, I had to make - eh, I had to make a decision, I was gonna take it into my own hands and do it that way, discreet way, which what I know, I was gonna just fucken kill him try and either knock him, try to either you know, try and bury him out in the bush and that, and then go home and just wait for a phone call or whatever - - -
Or what?---I - make a decision whether to take action - I had to make a decision if I could take the matters into my own hands or I make the report to the police and I do it the legal way, and I don't piss away the rest of my future. All right, and I don't end up like every other - all the rest of me[sic] uncles that go and take matters into their own hands, and then they end up in Port Phillip and Barwon stuck, so I had to make that decision in my mind, after going to a, the only reason why I am here is because (indistinct words). That place showed me what it was to be an Aboriginal man, a community man, not a gangster, not a thug, not a criminal, that's why I am here for justice. And I don't want white fella justice I want Aboriginal law, I want him to face my law.
All right?---I don't want him to face Commonwealth Law, because you know what it's not gonna stop him. He needs to be fucken speared.
Yes, all right. You - - -?---So I'm comin' here today because you know, I've come to the - to the court, do it the court way, because if I do it this way, I can maybe get some peace for myself y'know, I won't have to go to Port Phillip and Barwon and be up in there when Uncle whoever, and then just got put in a shitty environment again, where I've gotta go sleep to another rape, like, I've gotta go sleep in the - in the cell, possibly next to a rapist. You know what I mean, 'cause there's - there's predators in gaol too, that do this shit to men in gaol.
Yes?---And so I had to weigh up that possibility of, I've gotta throw my life away for this piece of shit. I might feel better if I blow his fucken head off, but at the end of the day I'm gonna piss away the rest of my future.

And - and the plans what I had to do to him, there is no way that I'd - I would have been given life.
Yes, all right. I think you've communicated that to us, you've made the decision to - to do it the white man's way, is that right?---Yep.
Yes?---The Commonwealth, the - the - the legal way, the - the - the normal Australian way to go - to do it through the court system.
Yes, all right. Just pardon me a moment [complainant]. Yes, I've got no further questions at this stage, Your Honour.

Surprisingly, towards the end of this evidence-in-chief, neither the prosecutor, defence counsel nor the judge took any steps to endeavour to steer the complainant back on to a responsive evidentiary path. It is easy in the calm atmosphere of an appeal to dispense sage advice seasoned with the considerable advantage of hindsight. We make it clear that we understand fully that extracting the complainant’s evidence in admissible form was a delicate and at times onerous task, and it is unreasonable to expect perfection, or something approaching it. Notwithstanding this the complainant should have been stopped before developing this series of answers.
Cross-examination commenced and, as often happens in this type of oath-against-oath case, defence counsel focused on detail rather than the actual impugned conduct. His questions about the timing of the incidents were unobjectionable and asked in pursuit of a legitimate forensic strategy. The complainant commenced to abuse defence counsel almost as soon as cross-examination started:
[Complainant], my name is [defence counsel], I've got some questions for you, okay?---Yep.
You've given pretty clear evidence that the offending ceased - that the sexual interference ceased when Jamie Taig went off to live in Kilmore?---Yeah.
And is it right that you didn't have much to do with Jamie after he went to Kilmore?---Yeah, that's right.
Yes. So, he went off to Kilmore to study for a period of time, that's right?---Yeah. I don't know what he was doing up there.
And you're aware that he came back to Shepparton at a later point in time after going to Kilmore to live?---Yeah, I know - yeah, he came back but I don't know when.
Yes. And once he came back you had very little to do with him; is that right?---Yeah.
All right. And you've also given evidence earlier today that Jamie offended against you for roughly 12 months?---Yeah.
You've been told by the prosecutor earlier today that Jamie Taig was enrolled at Broadford Secondary School from February 2007?---Yeah.
Yes. And in February 2007 you turned 10?---Yeah.
And for that reason, you think that you were about nine when Jamie Taig was offending against you; is that right?---10, nine, I don't know. Yeah, if it was 2007, I was 10 years old, I was 10 years old, I can't remember my age mate, you're asking me questions right, asking me if I knew about my age. You think I was really sitting there thinking oh, you know, you ask me about my age bro, are you serious? How old were you when he sticked his dick in your mouth, I don't fucken know.
Before today, [complainant], do you agree that you'd given evidence that you were confident that the offending occurred over a three- or four-year period?---Well, nah, I wasn't that confident of it, I just know that he was molesting me. I don't know how long - I don't know if it was for you know - I don't know how long or when or what the - how old I was, I just know I was - I'm a - I'm a molested kid who's trying to fix himself.
Defence counsel then endeavoured to question the witness about previous evidence given at the committal:
You attended a committal hearing on 5 October last year?---Yeah.
And you gave some evidence at the hearing?---Yeah.
And you were asked questions by me about the evidence you gave?---Yeah, yep.
And when you gave evidence, just like you did in front of this jury, you gave an oath to tell the truth?---Yeah.
And you understood it was important at that time to tell the truth?---Yeah. Maybe you should tell your client that.
Defence counsel endeavoured to compare a previous inconsistent statement with the complainant’s evidence-in-chief:
Listen, I'll put the question again, [complainant]. Do you agree that when you told the police about this offending in 2018 that you said the offences occurred between the age of 10, that's when it started - - - ?---Yes.
And ended when you were around 12 to 13?---At that time, that's how old I thought I was at that - at that time, yeah.
But your evidence today is that you believe it happened in the year leading up to February 2007?---Yeah.
When you were nine?---Yeah.
Is the reason you've given that evidence is because you found out today for the first time from the prosecutor that it was in February 2007 that Jamie Taig went to Kilmore?---No.
Have you adapted your evidence to that fact, that - - - ?---No.
- - - Jamie Taig went to Kilmore in February 2007?---No.
Because do you agree that up until today - - - ?---I haven't - I - I - I haven't adapted my evidence, no.
Do you agree that up until today your evidence has always been that the offending occurred between the age of 10 and 12 to 13?---Oh my God man.
PROSECUTOR: I don't know that my learned friend should put it that way, Your Honour.
WITNESS: Fucken joke.
PROSECUTOR: If he has a look at the proceedings - - -
HIS HONOUR: Take it easy, [complainant], sit down, just take it easy.
PROSECUTOR: Yes. He might consider the preceding questions to the committal question that is put because it certainly doesn't reflect the question, he's put to this witness now.
WITNESS: Just cause I didn't know how old I was, don't mean that the offences didn't happen mate.
DEFENCE COUNSEL: [complainant], like I said, you'll get a chance to be asked further questions by the prosecutor to explain things.
Shortly after that the following exchange occurred:
So, as you could hear the door to your parent's bedroom opening, Jamie didn't stop, he kept going; is that right?---I don't think he heard it, I heard it.
Yes. And when you heard the light switch you say that Jamie didn't - - - (Indistinct words).
- - - stop, he kept going?---He was focused on other things.
Yes. Just answer the question. When you heard the light switch, Jamie didn't stop, he kept going; is that right?---He still had his dick - he still had his um - he's still committing the sexual acts on me.
And when you heard your father urinating, which you said sounded very loud because he'd had a number of stubbies?---Yep.
He kept going?---Ah, he stopped.
Well, that's not what you said - - - ?---On the flush.
- - - you said he stopped when your dad flushed the toilet?---He pissed, flushed the toilet, and he stopped fucken sucking on my dick. I'm sick of this fucken lawyer, mate. I need a break, I'm sick of him and his bull shit questions, the dog's guilty and he knows it.
HIS HONOUR: Yes, 10 minutes.
WITNESS: Fucken rat, fuck him, the dog.
In the absence of the jury and the witness the judge offered defence counsel some advice:
All right, can I just suggest this, [defence counsel]. This bloke is going to fire up, you had him saying that - you got him to say yes, he had said those things at the committal, as I understand there's going to be something about that coming up as well. But you've got him saying it kept going until it flushed, there's no need to take him through this detail. I'm not going to Browne and Dunn you in a situation like this. Now, if you're going to try and insinuate into him in that way, he's going to fire up every time.
You can say that to a jury, that he said it happened up until that time, he might think it's - there's no need to ask him all those questions, it's going to fire him up every time. The detail, you just didn't it, you had it. And he was answering okay until that sort of detail started, when you started to argue with him or put propositions about his answers. He'd agreed with you that what he said at the committal.
DEFENCE COUNSEL: Well - - -
HIS HONOUR: So, I just think that this is going to end in a blue every time, you don't need - don't worry about Browne and Dunn, all right, I know there's another High Court case about it recently. Don't worry about Browne and Dunn, it was just dramatic, you better put to him that he's making it up though. But if the situation is that he's lying, if you're going to be putting to him that he's lying for some reason that's I don't know, you've got the situation as he's saying it occurred up until the toilet flushed, you've got that other evidence there, you can argue it to a jury, you don't have to actually ask him each one, you're just going to fire him up. And you know it's going to fire him up, and I don't know, I wouldn't be firing him up, I would be firing him up as less as possible.
DEFENCE COUNSEL: I don't [think] I can avoid firing him up.
HIS HONOUR: No, but - - -
DEFENCE COUNSEL: It doesn't matter what I do.
HIS HONOUR: - - - you can certainly minimise it by not taking him through this what he perceives as minutia.
DEFENCE COUNSEL: Yes.
At this stage the future of this trial was on a knife’s edge. Plainly the judge was using whatever case management techniques he had at his disposal to try to keep the trial on the rails. In an endeavour to minimise cross-examination on ‘minutiae’ the judge was advising counsel that he would not allow the jury to consider drawing a Browne v Dunn[2] adverse inference from defence counsel’s failure to put to the witness the detail of contradictory evidence from the applicant.
[2](1893) 6 R 67.
In the absence of the jury the judge then endeavoured again to keep the witness focused:
HIS HONOUR: All right, [complainant], it's me again. All right. Look, I understand how you feel, he's got his job to do - - -?----Yeah, I'm getting sick of getting asked the same questions over and over. He's - he's asked me about my age - - -
Yes, and we've just had - - -?---He's asked me about - - -
Yes, I understand that, we've had a yarn about that, all right?---Yeah, constantly and it's very - it's very - it's just you know, rubbish.
Yes. We've had a yarn about that, all right, but what I'm going to ask you to do is we'll try and do this in shorter bursts if we can, so we've had a talk about that, of just putting the basic thing and not needing to go through all the detail, all right. If you can keep it together for 12 minutes, that's another 12 minutes out of the way, all right, we're trying to get it done as quick as we can?---Yep.
After this exchange for a time in cross-examination the witness appeared more settled and responsive. He answered questions about the timing of incidents, and the detail surrounding them. On occasions, however, his frustration boiled over, for example in the following exchange:
So, you know, you're asking me questions, all right, about stupid little details, all right, about, 'Do you remember how old you was, do you remember this, do you remember that.' All I can remember, mate, is the sexual acts that he committed on me, all right?
Well, [complainant], the reason I'm asking you about these details is that they're the details that you've given evidence of or made statements about. You're saying now that - - -?---Yeah, well, I - when - when I was in the interview room, I thought back as best as I could when I gave my statement to Detective Trimby. I've had to wait two years, right, 'cause of this COVID-19 shit. I'm under a lot of stress. I've become a father in-between all of this shit, so I'm not gonna remember exactly, you know, all of my statement. I just try to think back when I went with Detective Trimby when he said, 'Go back and think,' you know, about what happened and stuff. So I did my best to describe what I could remember at that time, you know, and it's hard to think about this shit. I don't remember how old I was. I just remember that he shoved his fucken dick in my mouth, sucked mine. I've had to live with this shit growing up in my head. I feel like I'm a faggot and I'm gay but it's not my fault. I didn't get the chance, you know, to fucken - I - I've never known how to love a woman properly, really give her all my heart. I can't love my partner. We've got a son together, I can't even hold my child. I can't bond with my baby boy 'cause I'm going through all this shit and, you know, two years ago I really wanted justice. You know what? Now I just want some fucken peace and I've had enough, you know.
Your Honour, I - - - ?---That's like I said, that I was thinking back as well as I could at that time, mate, when I made the statement. All right, so yeah, you know, it coulda been day, it coulda been night, I don't know, mate, fucken hell, you're asking me - you keep asking me the same shit. Fucken ridiculous.
Lunch was taken. At the suggestion of the judge, and with the agreement of all parties, the informant remained with the witness over the break on the strict understanding that the case was not to be discussed.
Cross-examination finished shortly after lunch. The complainant answered questions generally responsively about a Facebook post said to be inconsistent with his current attribution of blame at the applicant’s door, and about behaviour asserted to be inconsistent with his allegations and feelings about the applicant, said to have occurred at the Mildura Hospital.
As suggested by the judge,[3] defence counsel put to the complainant that he was making up these allegations (as opposed to bluntly calling him a liar):
[3]See para [33] of these reasons.
When you - when you formed the view that Jamie was running you down to members of your family, did it make you want to tear him down?---No, it made me wanna speak my truth.
Is that why you made up these stories about him molesting you?

---No, I didn't make up anything mate, this is my truth, understand?
Your truth is what you published on Facebook isn't it, that the trouble with your childhood was the environment in which your family raised you?---No.
That's the truth you published in 2016 for the world to see?

---Yeah. Before I'd opened up about the sexual acts that were committed against me. And you know what, I had to open up about it, because it was killin' me. It was preventing me from excelling, do you understand, and I got sick of jackin' off every day watching pornography, right, because I've got to tell myself that I'm not a faggot, I cheated on all my girlfriends, done all that shit, right, that conflicts against being an Aboriginal man doesn't it, a community man, doing those things. So I had to bring it all up, get it all out, deal with the fucken shit and that's that.
Regrettably the prosecutor decided to re-examine. Common sense was jettisoned. This was an unnecessary and hazardous course. The prosecutor responded to defence counsel’s mild suggestion that the complainant was ‘making up’ his evidence, and decided to ‘up the ante’. The following irresponsible re-examination occurred. We shall set it out.
Mr Anderson put an allegation to you that you'd made up these things about Jamie Taig, all right? You remember that?---Yep.
Yes. So, what he was in effect saying to you, well he didn't say it directly. He was saying to you that you were a liar, and that you've lied about these things. What's your reaction to that?---This is my life. This is my truth. I've only got one life to live, right. I've been molested as a kid, what he's done to me has destroyed my life. And I've gotta rebuild it. And I've got a son that I've gotta look after, and teach him how to be a strong Aboriginal man. And not go to gaol. And not do that shit. Don't end - don't piss your life away 'cause some cunt fucked your life, give it back to 'em. He done this to me, and you're gonna pay Jamie. You hear me in there bud? You gonna pay for what done to me. Whether it's the legal way, or our way, our culture way, you'll get it. And it's as simple as that. This is my truth. I've got to wake up every day to people saying oh what, you get fucked in the mouth, what is he a gay cunt, is he? That's what I've gotta deal with every day. That's what I've got to wake up to. I've gotta live in my mother's house where I was fucked every - every chance he got, when he tampered with me, I've gotta live in that room. I've gotta look at that loungeroom every day. I haven't even been able to have my son at my mother's home because of it. 'Cause it eats me. I don't want that kid in that house.
PROSECUTOR: Yes, okay.
WITNESS: This is my life, I've got one life to live, and I'm not pissing my life away for a murder. 'Cause I'll fucken do it. I've had enough. I'm going to be a cultural man, I want my culture, that's what I want. I wanna go to the river. Go and study country. Look after my land, and take care of my people as an Aboriginal man. Raise the next generation to be warriors, not to be gangsters. Teach 'em their language, (foreign words spoken). That's my language. That's what I'm gonna teach them kids, Alunganalu's the reason why I'm here. I didn't give a flying fuck about my life before I went to that place. I was hoping I'd get shot dead in the street. That's what I was hoping for. I was hoping I'd get killed. Just end it. Sick of the pain. I owned my truth. That's what I did. I owned my truth. Time for him to own his. Stand up.
HIS HONOUR: Thanks [complainant].
PROSECUTOR: Thanks [complainant]. No further questions Your Honour.
In our view the re-examination was calculated to cause this explosive outburst from the witness. The question ― defence counsel called you a liar, ‘What’s your reaction to that?’ ― was devoid of any forensic merit whatsoever. It clarified no ambiguity, it did not repair credit, and there was no distortion or incomplete evidentiary account to which it was addressed.[4] In the words of the senior counsel for the respondent on this appeal, ‘it was indefensible’. Not content with merely adducing this impermissible and entirely predictable tirade, the prosecutor then relied upon it in his final address. He read to the jury the entire impugned passage. And then he added this:
‘As I say, a window into his soul, something you will rarely see anywhere. A proud man telling you what happened to him and there’s no doubt about it, none whatsoever’.
[4]Hadid v Australis Media Limited (No 14) (Supreme Court of New South Wales, Sperling J, 5 November 1996).
The evidence was irrelevant to any issue in the trial. It was apt to induce in the jury sympathy for the complainant and prejudice against the applicant. The prosecutor wrongly invited the jury to treat the outburst as independent evidence that supported the complainant’s account. It placed the judge in a very difficult position to either intervene and risk being seen to criticise or undercut the complainant’s evidence or say nothing and leave the intemperate outburst for the jury to use.
The role of a prosecutor does not extend to using shallow strategic devices designed to achieve a conviction at any cost. The prosecutor represents the state. ‘His or her duty is to fairly or impartially place before the jury all relevant and cogent evidence, and not to attain a conviction by any or all means.’[5] In Whitehorn v The Queen,[6] Deane J said:
‘Prosecuting counsel in a criminal trial represents the state. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.’
[5]Bugeja v The Queen (2010) 30 VR 493, 503 [56] (Weinberg JA); [2010] VSCA 321.
[6](1983) 152 CLR 657, 663–4 [5] (Deane J); [1983] HCA 42.
The question, in our view, did nothing to ensure the fairness of the trial and the response to that question ensured that the trial was unfair.
It seems remarkable that no party sought to object, interrupt or in some way curtail the response. If the applicant’s barrister thought it was strategically undesirable to object or in some other way interfere then we consider this to be misconceived. This, however, ought not obscure where the fault lies. The prosecutor’s question was a plain invitation to a volatile, angry man to say whatever he liked, and he did.
In our view, by the end of re-examination, an irregularity had occurred in the trial. As we have observed the trial was a contest of accounts between the Crown and the applicant. The applicant made blanket denials in a pretext conversation, his police interview and in his evidence. The impugned passage from re-examination became a significant plank of the prosecutor’s final address. We are not satisfied that the irregularity made no difference to the outcome of the trial. Applying the principles set out in Baini v The Queen,[7] we granted leave to appeal on Ground 1(a), allowed the appeal, set aside the verdicts in the County Court and ordered a new trial.
[7](2012) 246 CLR 469, 479–482 [25]–[33] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.

We shall deal briefly with the remainder of the first ground of appeal.
Ground 1(b) complains that the judge had no good reason to decline the defence application that the jury be directed that the complainant’s distress could not be used by them to support or ‘corroborate’ his evidence. The defence counsel at trial put the application in these terms: ‘the jury should be told they can’t use that evidence of anger or emotion 13 years on from the incident to corroborate any of his claims … They can use the evidence for a credibility purpose … but they can’t use that evidence of anger and the like [as] corroborative evidence.’
This application was made under s 12 of the Jury Directions Act 2015, which obliges defence counsel to identify and request any particular directions relating to evidence in the trial relevant to matters in issue.[8]
[8]Jury Directions Act 2015, ss 12(1) and (2).
The trial judge was obliged[9] to give the relevant direction sought unless there were good reasons for not doing so.
[9]Jury Directions Act 2015, s 14.
The judge declined to give the direction. In substance his Honour stated this was for the following reasons:
(a)it was a ‘reverse distress’ direction and his usual practice was to stay out of this type of direction;
(b)the jury was entitled to consider the complainant’s demeanour as he gave his evidence;
(c)he had never before been asked to tell a jury that they could not use a witness’ anger as corroboration; and
(d)he was concerned that such a direction would undermine the power and believability of the complainant’s evidence.
In our view it was reasonable for his Honour to decline to give the direction sought. His Honour was imbued with the atmosphere of the trial and the contest, as it developed, between the parties. A distress direction is usually given in circumstances where during or shortly after an alleged sexual offence, a complainant’s apparent distress may be admitted as circumstantial evidence that may offer independent support to the complainant’s evidence.[10]
[10]Paull v The Queen [2021] VSCA 339.
In the present case the applicant was not seeking a distress direction but what the judge described as a ‘reverse distress direction’ to the effect that the jury may not use the complainant’s distress and anger 15 years after the impugned events as independently supportive of the complainant’s evidence. The judge was clearly concerned that amongst other things it may undercut the jury’s assessment of the evidence of the complainant.
In short, and without the benefit of full argument, we are not satisfied that the judge did not have good reasons for declining to give the requested directions.

Ground 2

Given our conclusions on Ground 1(a) it is unnecessary to consider Ground 2 in any detail. We do not consider that the trial judge’s charge was unbalanced. This was, on any view, a difficult and unsettling trial for every participant. There is no finely calibrated scale by which the balance of a charge can be measured. It is correct that the judge spent considerably more time summarising the prosecution case than its defence counterpart, however, in our view this was simply a product of the nature of the two cases. The prosecution case involved the complainant’s evidence of the four impugned incidents, together with evidence from his parents, the applicant’s father and the informant. Cross-examination about the incidents, and suggested inconsistent evidence of past acts was reasonably detailed. In contrast the defence case was simple: none of the charged conduct, or any sexual impropriety ever occurred. This was stated by the applicant in a ‘pretext call’, his police interview and in his evidence. The jury had heard this evidence, and defence counsel’s final address very shortly before the judge’s charge. Repetition would not have made the defence case any clearer for the jury.
Complaint is also made above about the judge’s use of the word ‘powerful’ in connection with the complainant’s evidence. It is said to amount to a judicial endorsement of the complainant’s reliability and credibility as a witness. The context of the use of the word ‘powerful’ came in that part of the judge’s charge where he summarised the complainant’s evidence. His Honour said:
He was then re-examined by Mr Cordy and it is a matter for you, but it is pretty powerful language, described how he felt about being called a liar. That is a matter for you to interpret. You will have the tape there, so I will not take that any further.
When exception was raised, the trial judge made it clear that the word had been used in the sense of meaning ‘forceful’ rather than ‘truthful’. In the absence of listening to the recording of this part of the judge’s charge, the impact of these words is not easily discernible. The use of the word ‘powerful’ is open to several interpretations, one of which could be taken by the jury to represent a judicial endorsement of this part of the complaint’s evidence. Another could be no more than a statement about the language used by the complainant in this part of his evidence. The risk of ambiguity and the danger of the jury perceiving it as some type of judicial endorsement of the evidence leads us to conclude that the word ‘powerful’ should not have been used in this context.
Various other less substantial complaints were argued in the written case under this ground, but only faintly pressed in oral argument. Given our conclusions on Ground 1(a) we do not propose to consider them further.

Ground 3

It is unnecessary to consider this aggregation of errors ground.

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[2022] VSCA 235

27 October 2022